First Legal Memo

Well, it's been an awful long time since I posted. 2009 has been the "Year of Transition" for me, and I still haven't fully transitioned. At some point I'll do a post on my first semester of law school, which has been interesting to say the least. But for now, here's my first legal memo, written in legalese as promised!

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To: Mimi Samuel, supervising attorney

From: Jonathan White

Date: November 22, 2009

Re: Rochelle and Marty Winick; Product Liability

Statement of Facts

Ms. Rochelle Winick has contacted our firm seeking assistance in bringing a products liability suit against HO Sports, a manufacturer of recreational water sports equipment. You have asked me to evaluate the strength of her claim with specific regard to the issue of design defect.

On July 16th, 2009, Ms. Winick, her son Marty, and other members of the Winick family were enjoying a short vacation at their cabin in Eastern Washington. The family has owned a boat for 4-5 years, and on the day in question they were using it to enjoy water sports at nearby Lake Antiot. Marty had been riding an HO Sports “Black Ice” inner tube for 45 minutes to an hour when he involuntarily fell off the tube. When the boat came back around to pick him up, Ms. Winick, who was also in the boat at the time, was surprised to find Marty’s arms bleeding. Upon returning to the shore, the family applied bandages and Neosporin to Marty’s injuries.

By the next day, July 17th, an infection had begun to spread around the injuries on Marty’s arms, so Ms. Winick brought him to a doctor in Wenatchee. The doctor told Ms. Winick that Marty’s arm was infected, although she didn’t remember the specific terminology of the diagnosis. The doctor prescribed an antibiotic for Marty and recommended a follow-up visit.

By July 20th, after the family had returned from Eastern Washington, Marty’s condition had not improved. Concerned, Ms. Winick brought him to a second doctor in Seattle, who was surprised that the antibiotic prescribed by the Wenatchee doctor had not yet helped to improve Marty’s condition. Marty then spent the next four days in the hospital recovering from the injury. Subsequently, the doctor suggested to Ms. Winick that Marty might need to give up pitching, since the infection had caused permanent injury and pitching would put an undue strain on his growing bones.

Marty had spent considerable time riding inner tubes in the past and was an experienced user. But until the day of his injury, he had never used a Black Ice tube. The Winick family had only purchased the tube a few months earlier and had only taken it out 3-4 times prior to Marty’s usage. On one of these previous rides, Ms. Winick’s daughter did come away with minor abrasions, but she was wearing a t-shirt and thus did not incur as deep an injury as Marty. Ms. Winick claims that the tube was not altered in any way between the time of purchase and the time of Marty’s injury. She also claims that Marty had been riding the tube in a normal fashion, and hadn’t engaged in any abnormal or rambunctious activity during his ride. Finally, Ms. Winick identified the Velcro cover on the top of the filling stem valve, located directly in the center of the top of the tube, as the most likely cause of Marty’s injury. She noted that the small lip of Velcro covering the valve was supposed to sit flush with the surface of the tube, but that it instead extended slightly beyond that point, creating a pressure point leading to Marty’s scratches.

Issue Statement

Under Washington law relating to product liability, does Ms. Winick have a valid claim for design defect when (1) her son Marty rode on a Black Ice inner tube, manufactured by HO Sports, for 45 minutes to an hour; (2) a stem valve was located directly between the handles of the tube, while the Velcro patch covering the stem valve didn’t fit properly in place; and (3) contact with the Velcro patch appears to have caused several serious scratches on Marty's arm?

Brief Answer

Probably. Washington courts will apply two distinct tests in order to sufficiently determine manufacturer liability in terms of design defect: the “risk/utility” test, and the “consumer expectations” test. Because Ms. Winick can provide evidence of a feasible alternative design for an inner tube similar to the Black Ice tube, and because HO Sports does not have strong arguments for the essential functionality or social value of its centrally-located stem valve, Ms. Winick’s claim should survive summary judgment under the risk/utility test. Additionally, because Ms. Winick can argue that a reasonable consumer would not expect a serious injury such as Marty’s to result from a typical ride on an inner tube, and because Marty’s unique situation creates circumstances from which a jury could infer defective design, Ms. Winick’s claim under the consumer expectations test should also survive summary judgment.

Discussion

Washington has enacted RCW 7.72.030 in order to better protect its citizens against injuries from dangerous and harmful products. Because of the potential threats to consumers arising from defective products, manufacturers of products are held to strict liability. See Soproni v. Polygon Apartment Partners, 137 Wn.2d. 319, 326, 971 P.2d 500 (1999). This statute allows Washington consumers to assert strict liability on the part of a manufacturer of a defective product. The portion of this products liability statute relating to design defect are as follows:

A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.

RCW 7.72.030 (1). To prevail on a theory of design defect in a products liability claim, a plaintiff must prove the following elements: (1) a manufacturer’s product (2) not reasonably safe as designed (3) causing harm to the plaintiff. Pagnotta v. Beall Trailers of Or., Inc., 99 Wn. App. 28, 36, 991 P.2d 728 (2000). The first element is not likely to be in dispute, as both parties will agree that the Black Ice tube was manufactured by HO Sports. The third element is likely to be in dispute, but that issue is being addressed in a separate memo. You have asked me to focus on the second element, which is likely to be in dispute; specifically, whether the Black Ice inner tube was “not reasonably safe as designed.” In determining manufacturer liability for defectively designed products, Washington courts use two tests, either of which are sufficient to establish liability: (1) the risk/utility test and (2) the consumer expectations test. Soproni, 137 Wn.2d. at 326-27.

(1): Does Ms. Winick Have a Valid Claim Under the Risk/Utility Test?

Under Washington law, plaintiffs can choose to pursue a products liability claim against a manufacturer under the risk/utility test. The portion of the Washington Products Liability statute pertaining to the risk/utility test is as follows:

A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product.

RCW 7.72.030 (a). Courts will consider evidence of feasible alternative designs in determining whether or not a material factual issue exists for a jury to decide. Soproni, 137 Wn.2d. at 329. Courts have held that a plaintiff can satisfy its burden of proof by showing that an alternatively designed product “more safely serves the same function as the challenged product.” Higgins v. Intex Recreation Corp., 123 Wn. App. 821, 829, 99 P.3d 421 (2004).

In a recent Washington case where a manufacturer was held liable under the risk/utility test, the plaintiff was severely injured after being struck by the rider of a snow tube, and he brought a products liability action against the manufacturer/defendant Intex. Id at 826. Both the trial and appellate courts denied defendant Intex’s motion for summary judgment, because the plaintiff was able to bring evidence of a similar tube, also manufactured by Intex, which served the same functions as the tube in question but didn’t pose the same risks. Id. at 827.

In Ms. Winick’s case, she can likely provide proof of an alternative design which would have prevented Marty’s injury while still providing the same functions as the Black Ice tube. A cursory review of HO Sports’ website shows that it manufactures several different types of tubes. Its “Bomber” tube is nearly identical to the Black Ice tube, except for three minor differences: (1) the Black Ice is 6” wider than the Bomber, (2) the Black Ice tube has a convex-shaped bottom design, allowing for greater turning control, which the Bomber does not, and (3) the Black Ice tube has a centrally-located stem valve for easy inflation, while the Bomber only has the traditional valves located on its sides. Ms. Winick can thus argue, and the court will likely agree, that the fact that HO Sports itself makes a safer tube which served nearly the same functions as the Black Ice tube but did not pose the same risks, presents a material issue of fact for a jury to consider.

In response, HO Sports will most likely argue, as did Intex, that making design changes to its Black Ice tube would result in a completely different product. To support its argument, HO would likely cite Thongchoom v. Graco Children’s Products, Inc., 117 Wn. App. 299, 71 P.3d 214 (2003). In Thongchoom, the plaintiff’s infant was injured while using a baby walker manufactured by the defendant. The Washington Court of Appeals refused to apply the risk/utility test, holding that design changes to a baby walker would “completely change the product.” However, Ms. Winick’s case is distinguishable from Thongchoom. Simply removing the stem valve from the Black Ice tube would not significantly affect its essential functionality, whereas changing the mobility function of a baby walker would remove its essential functionality and render it worthless. Furthermore, HO Sports’ own website prominently highlights the convex shape of the Black Ice tube while only casually mentioning the stem valve. It would be difficult, then, for HO to argue that the stem valve was the defining feature of the tube in the same way that mobility was the defining feature of the baby walker in Thongchoom.

HO Sports will also likely argue that some products are inherently unsafe, as did defendant Intex in Higgins. But, in order to use this defense, “the manufacturer of a challenged product would have to demonstrate that an inherently dangerous product is also necessary regardless of the risks involved to the user… the focus is on the product and its relative value to society.” Higgins, 123 Wn. App. at 829. HO Sports would then need to demonstrate that the social value of a centrally-located stem valve, designed to provide easy access for filling, outweighed the potential risk of severe injury from scrapes and abrasions that the stem valve might cause. A court would most likely agree that the question of whether the Black Ice tube was a necessary product, and whether it would justify such potential risks to ordinary consumers, was a material issue of fact for a jury to decide.

Therefore, Ms. Winick has a strong claim of design defect under the risk/utility test. HO Sports manufactures another tube, the Bomber, which serves nearly the same functions as the Black Ice tube, but without the same risk of injury. This alone would present a material issue of fact for a jury to determine. Furthermore, HO Sports would not be able to argue for the essential functionality of the stem valve, since the stem valve alone does not make the Black Ice tube unique. Finally, given the serious nature of Marty’s injury, and its subsequently deleterious long-term effects, it is unlikely that HO Sports could successfully argue that the social value of its centrally-located stem valve outweighed its risks.

(2): Does Ms. Winick Have a Valid Claim Under the Consumer Expectations Test?

Under Washington law, a plaintiff can choose an alternative to the risk/utility test to pursue a products liability claim against a manufacturer. The portion of the Washington products liability statute pertaining to the consumer expectations test is as follows:

In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.

RCW 7.72.030 (3). Under the consumer expectations test, the burden is on the plaintiff to “show (that) the product was more dangerous than the ordinary consumer would expect.” Pagnotta, 99 Wn. App. at 36. The plaintiff must also show that the product causing harm was “not reasonably safe.” Thongchoom, 117 Wn. App. at 305. Washington courts have enumerated a number of factors to be considered when determining what a reasonable consumer might expect from a product: (1) its relative cost, (2) the seriousness of potential harm from the claimed defect, (3) the cost and feasibility of eliminating or minimizing the risk, and (4) the nature of the product or the nature of the claimed defect. Higgins, 123 Wn. App. at 830-31.

In cases in which the court held that there was sufficient evidence for the jury to consider the consumer expectations test, plaintiffs were able to produce material evidence indicating that the scope of their injury was beyond that which would be contemplated by the ordinary consumer. In Higgins, the plaintiff was injured as a result of a collision with an inner tube that had “no means for the rider to control it, and turned the rider into a fixed backward position.” Id at 825. The court held that a reasonable consumer might expect the tube to rotate, but that a reasonable consumer might not expect it to remain in fixed backward position, and that this presented a material issue of fact sufficient to preclude summary judgment. In finding for the plaintiff, the trier of fact considered such factors as the relatively low cost of the defective inner tube, as well as the fact that the manufacturer sold other tubes at similar prices but without similar defects.

Like the plaintiff in Higgins, Ms. Winick will argue that the Black Ice tube was more dangerous than the average consumer would expect it to be. She will argue that a reasonable consumer would not expect a serious injury, like Marty’s, to arise from normal usage of the tube. While a reasonable consumer might anticipate minor injuries such as whiplash, bruising, or muscle soreness, typically associated with a product of its nature, from riding the Black Ice tube, a reasonable consumer would not anticipate a serious injury such as Marty’s to occur after only 45 minutes to an hour of use. Additionally, Ms. Winick can argue that the cost of minimizing the danger of injury would be insignificant, as it would not require any major structural changes, but would simply involve re-designing the Velcro valve cover to better enclose the offending stem valve.

Other courts have found that certain types of accidents may themselves indicate design defect under the consumer-expectations test, and that if a reasonable consumer could not foresee such accidents, the product is necessarily defective.

When the jury can reasonably find that the product is unchanged from the condition it was in when sold and the unusual behavior of the product is not due to any conduct on the part of the plaintiff or anyone else who has a connection with the product, logic dictates that it is a distinct possibility that there is some defect in the product.

Pagnotta, 99 Wn.App. at 37. The Pagnotta court, in dealing with an injury to plaintiff who was unable to prove the exact flaw in the manufacturer’s design, held that when a plaintiff lacks the specific evidence to prove how the design was deficient, a jury could still infer defect as long as the product was unchanged from its original condition. Id. at 39. This is a less-developed area within the doctrine of products liability in Washington, relying primarily on non-binding precedent from Oregon. Pursuing this argument would require more evidence than has currently been provided by Ms. Winick; specifically, it would require her to prove that the tube hadn’t been altered between the time of purchase and the incident, and that Marty had used the tube in a reasonable fashion. But should that evidence become available, it would likely be persuasive in court.

In response to Ms. Winick’s arguments, HO Sports will likely claim that riding an inner tube is, in itself, a somewhat risky endeavor and that ordinary consumers should be on notice of potentially negative consequences. HO would likely cite the courts in the Anderson and Thongchoom cases, both of which refused to allow a design defect claim under the consumer expectations test because the products in both cases were associated with “dangers… obvious enough to be contemplated by the ordinary consumer.” Anderson v. Weslo, Inc., 79 Wn. App. 829, 837 906 P.2d 336 (1995); Thongchoom, 117 Wn. App. at 305. Both of these cases involved discretionary recreational products which posed specific and discernable dangers. While the Black Ice tube certainly fits into the same category of products as those in the Anderson and Thongchoom cases, Ms. Winick can rebut HO Sports’ argument by showing that the Black Ice tube does not fit into the same category of dangers.

In Anderson, the plaintiff was injured while jumping on a trampoline, and his injury resulted directly from a risky “double-flip,” which he had performed several times before, and from which he could adequately contemplate the danger. In Thongchoom, the plaintiffs claimed they were unaware of the fact that a baby walker would allow both forward and backward mobility, but the court found this to be a danger obvious to an ordinary consumer. However, Ms. Winick’s case is distinguishable from both of these cases. Unlike the plaintiff in Anderson, Marty could not have been aware of the potential risk of an abrasive stem valve cover, and he had never previously used the Black Ice tube. And, while riding the Black Ice tube did present its own set of risks, Marty, unlike the plaintiff in Thongchoom, could not have contemplated the possibility that he might incur deep scratching and a subsequently serious infection.

Regardless of whether Ms. Winick pursues the optional “necessarily defective” argument as espoused by Pagnotta, she nevertheless has a strong claim of design defect under the consumer expectations test. She can successfully argue that a reasonable consumer wouldn’t anticipate an injury as serious as Marty’s, and that the cost to minimize the risk of such an injury is minimal to HO Sports. She can provide evidence of extensive damage to Marty’s arm and of the long-term effect on his quality of life, adding an emotionally significant aspect to her already-strong legal argument. While HO Sports would likely respond that riding an inner tube poses risks that would be obvious to the ordinary consumer, the unique nature of Marty’s injury, as well as the lack of awareness of the potential danger posed by the stem valve cover, presents several issues of material fact for a jury to consider, and it is likely that they would side with Ms. Winick.

Conclusion

Ms. Winick has a strong claim for design defect under Washington’s products liability law using both the risk/utility test and the consumer expectations test. Both tests present issues of material fact sufficient to survive a motion for summary judgment, and a jury is likely to find for her under at least one test, possibly both.

First, under the risk/utility test, Ms. Winick will be able to provide evidence of a safer, alternatively designed inner tube, made by HO Sports itself, creating an issue of material fact. A jury is unlikely to find that the central location of the stem valve is essential to the primary functionality of the tube, or that the social value of a centrally-located stem valve outweighs the risks it poses to ordinary consumers like Marty.

Second, under the consumer expectations test, Ms. Winick will be able to argue that a reasonable consumer wouldn’t have expected serious injuries such as Marty’s to have resulted from a relatively short inner tube ride, creating another issue of material fact. Furthermore, she can argue that the cost to improve the design of the stem valve cover would be minimal to HO Sports. It is unlikely that a jury would find Marty’s unique injury to have been caused by a danger obvious to the ordinary consumer.

Honorary Last Essay as an Undergrad

Thought I'd post this as a milestone. The next one'll be written in legalese!

COM 469
Final Paper
10 March 2009


Seymour Hersh, My Lai, and the Ethics of Kant


The Vietnam War is considered by many to be one of the lowest points in modern American history. Taking place against the backdrop of the dramatic social upheaval of the 1960s, amidst the Civil Rights movement, counter-cultural revolution, and other civil strife, the Vietnam War was the focal point of American foreign policy for nearly a decade. Unlike previous wars, where domestic dissent was either effectively muted or simply non-existent, this war featured a large and vocal anti-war contingent, in numbers great enough to effect serious government attention. Adding to the dilemma was the fact that the Vietnam War was a complicated, murky entanglement, which was difficult to justify and even more difficult to explain to the general public. The government's inability to clearly do so led to a progressively growing sense of distrust amongst the population, perpetuating the “us vs. them” mentality that clouded, for example, the presidency of Richard M. Nixon.
1968 was perhaps the darkest moment of the conflict, as massive civil unrest rocked the country at home while casualty reports from the war reached record highs. That year, Martin Luther King and Robert F. Kennedy were assassinated, racial and political riots erupted nationwide, and anti-war protests reached critical mass. Yet one of the worst stories of 1968 would not be told until November of the following year, when Seymour Hersh first broke the story of the My Lai Massacre. In 3 reports, produced independently and carried by the St. Louis Post-Dispatch, Hersh told the shocking story of the massacre of 347 Vietnamese civilians (many of them women and children) by American troops in the small village of My Lai. These reports, a clear example of Kant's Categorical Imperative operating in Hersh's journalistic ethic, greatly changed the course of the debate surrounding the war, and provoked domestic and international outrage. “No one wants to hear about U.S. Troops as 'bad guys' too,” Hersh later said (Eberting, 2000). But without this effort, the government might have been able to control public support indefinitely, tenuous or not. Instead, his report blurred the line between the good and the bad, focusing alternatively on the right and the wrong, while providing firm and actionable evidence to those with moral opposition to war.
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In March 1968, an Army squadron, led by Lt. William Calley, attacked the small Vietnamese village of My Lai in an attempt to flush out suspected Viet Cong. Hersh's initial report, published on Nov. 13, 1969, suggested only Calley's involvement in the massacre, noting that “the Army is completing an investigation of charges that he deliberately murdered at least 109 Vietnamese civilians in a search-and-destroy mission” (Hersh, 1969). The first report includes many tentative details about “Pinkville,” the Army code word for My Lai, as well as interviews with Calley's fellow soldiers, who generally defend him (“They're using this as a Goddamned example... he's a good soldier,” says one) and try to place his actions in the context of the fog of war (“You can't afford to guess whether a civilian is a Viet Cong or not---either they shoot you or you shoot them,” says another). Generally, however, the first article is relatively non-committal, focusing primarily on the yearlong military investigation of the event which resulted in Calley's official charges.
It is the second article, provocatively titled Hamlet Attack Called Point-Blank Murder (Hersh, 1969), published exactly one week later, which introduces the larger story and conspiracy. In this story, Hersh interviews actual witnesses to the event, and reports that the investigation is not limited to Calley but includes several others from his squad as well. Unlike the first story, which indicated several possibilities but offered no hard evidence, this story is full of graphic and shocking detail, much of it likely difficult for the average American reader of the time to digest:

“They just marched through shooting everybody,” said Michael Terry, then a member of the C Platoon. “Seems like no one said anything... they just started pulling people out and shooting them.” At one point, he said, more than 20 villagers were lined up in front of a ditch and shot. “They had them in a group standing over a ditch---just like a Nazi-type thing... I don't remember seeing any men in the ditch. Mostly women and kids.” Later he and the platoon team he headed... noticed “some of them were still breathing... they were pretty badly shot up. They weren't going to get any medical help, so we shot them. Shot maybe five of them... a lot of guys feel that they (the South Vietnamese civilians) aren't human beings; we just treated them like animals.” (Hersh, 1969)

In addition to shocking first-hand accounts such as these, Hersh also introduces Ronald Ridenhour, a former GI and close acquaintance of several of the accused, whose “persistence prompted the Army to begin its high level investigation in April.” Casually, yet pointedly, Hersh leaves unanswered the question of whether the Army would have started the investigation unprompted. Without directly saying so, Hersh here raises the specter of conspiracy in not just the low levels of the isolated squadron, but in the high levels of the US military itself.
Hersh's third and final article, published five days after the second, raises the number of civilians murdered from 109 to 370 (it would later be officially notated as 347), and contains even more first-hand accounts of the atrocity. In a 2008 interview entitled 40 Years Later, Hersh retells the story of his exchange with Paul Meadlo, a soldier involved directly with Calley in the incident, who is the primary focus of the third article:

One of the mothers in the bottom of the ditch had tucked a boy underneath, and he climbed up...and began to run in a panic. Calley said to Meadlo, this kid from Southern Indiana, plug him. Meadlo, one on one, couldn't do it... So Calley, with great derring-do, took his carbine, ran behind the kid and shot him in the back of the head. Everybody remembered that. The next morning, Meadlo gets his leg blown off, to the knee, and they call in a helicopter to take him out. And while he's waiting he starts issuing an oath, a real oath, chant: “God has punished me, Lieutenant Calley, and God is gonna punish you.” (Gladstone, 2008)

Although this story is described briefly in the third article, the words of the oath were omitted, and it is interesting to hear Hersh's retrospective emphasis on it---especially as it highlights his ethical bias.
The third article nonetheless excoriates the military through its selective quotation. “We were all under orders,” Meadlo said. “We all thought we were doing the right thing. At the time it didn't bother me” (Hersh, 1969). Hersh's continued selection of quotes containing phrases such as “We just thought we were supposed to do it” and “I know it was far more than 100 as the Army now says” helps him push along his categorical theme, calling out a previously unchallenged U.S. Military for its systematic wrongdoing. It is a theme he has returned to frequently throughout his career, most recently in breaking the Abu Ghraib story, and it is a theme reflective of the philosophies of Immanuel Kant.
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Hersh's motives in breaking the My Lai story lie not in directly attacking, nor directly impugning, the military and its role in our society. Rather, Hersh wants to hold the military accountable to the same standards which apply to all citizens, and he continually chafes at the leeway afforded to those who commit atrocities in the midst of war. To Hersh, and to Kant, murder is never acceptable, under any circumstances. As Merrill states, “Kantian journalists would not act so as to bring about some kind of consequence; rather, they would simply act in accordance with duty to a guiding principle... Such a duty binds a journalist” (Merrill, 1994).
Indeed, Hersh has had to operate for most of his career as an independent, separated from the mainstream press by a determination for investigative reporting and a slightly cantankerous style. David Carr notes this in his tributary article From My Lai to Abu Ghraib: “Unlike his colleagues at newspapers or on television, Mr. Hersh can be quite subjective in his judgments, anyone who is reading his current magazine articles is well aware he is against the war” (Carr, 2004). In addition, Hersh has always been more than willing to make public appearances in defense of his positions, and is not afraid of using his public persona as a soapbox. When asked by Brooke Gladstone, during the 40 Years Later interview, if we'd learned anything from history, Hersh immediately replied: “Are you suggesting that the American leadership learns from the past? I don't think there's much evidence for that. As we had hell to pay after Vietnam, we're going to have hell to pay (after Iraq)” (Gladstone, 2008).
Merrill notes that “a categorical duty would be one that, regardless of the agent's particular desire, should be done” (Merrill, 1994). In a 2000 panel discussion with other investigative reporters, Hersh sounds a ringing endorsement of this philosophy: “There is a certain time when you've got to stop being defensive about the stories you write. You just have to. You can't go around explaining everything that people say... there's a point when you say 'look, there's a story there. If you don't want to believe it, there's not much I can do about it' ” (Eberting, 2000). This sort of ethic, while most refreshing in today's era of packaged and sterilized journalism, does have its consequences---one doesn't make many friends. David Carr, in comparing Hersh to the more affable and famous Bob Woodward, indicates that Hersh may actually enjoy this status: “While Mr. Woodward is on a first-name basis with many of the administration's highest ranking officials, Mr. Hersh sticks to the back channels for articles that often countervail the official wisdom” (Carr, 2004).
Holding everyone accountable to the same standards, especially those in power who have been entrusted with protecting the Constitution, should be one of the primary goals of any Kantian journalist. While it may ruffle the feathers of the powers-that-be, it is the journalist’s duty to provide citizens with cold, hard facts, allowing them to be informed in their democratic decision-making. Regardless of the impact on powerful citizens or the national pysche, it is categorically imperative that the rule of law pertains to all citizens of any country interested in preserving its freedom.
* * * * *
The impact of the My Lai scandal was instantaneous, and for quite some time dominated the news. From the initial Hersh reports through the conviction of Lt. Calley in spring 1971, the My Lai massacre was an ongoing media firestorm. It became a two-pronged scandal, as other journalists investigated not only the actual event, but the cover-up that followed.

As evidence of the crimes committed in My Lai began to emerge in the wake of Hersh's revelations, a New York Times editorial declared that the atrocities 'may turn out to have been one of this nation's most ignoble hours.' In April 1971, Time magazine asserted that 'the crisis of confidence caused by the Calley affair is a graver phenomenon than the horror following the assassination of President Kennedy. Historically, it is far more crucial.' In these renderings, the My Lai massacre was a pivotal event, not just in the history of the Vietnam War, but also in that of the American nation as a whole. (Oliver, 2006)

In light of this story and its place in history, it is important to remember that it might not have ever been published in the first place. Hersh even had to create his own wire service in order to convince newspapers to initially run the story: “Nobody wanted to take responsibility for publishing it, so we found a way to take away the responsibility. Once you get the onus off the individual newspaper, they feel like publishing it” (Eberting, 2000). It is, of course, impossible to know how events would have progressed had the atrocity not been brought out into the light. But it suffices to say that things would have been different.
Throughout the early years of the war, the government was generally able to control the message on the war, despite progressively increasing casualty numbers and dwindling public support. However, all of this changed with Seymour Hersh's My Lai reports, and for the first time, the government was put on the defensive, forced to publicly condemn the actions of its own soldiers. For an aggressively anti-war investigative reporter such as Hersh, as well as those searching for ways to bring the war to a close, the reports were a milestone and a real turning point. They were not only a critique of war conduct in the present tense; they were also a talisman and warning to those contemplating war in the future. Hersh, fueled by Kant's Categorical Imperative and sense of justice, was uniquely able to show that in any war, the distinction between good and bad is cloudy at best; there will always be good guys amongst the enemy and bad guys amongst ourselves. Instead, the proper approach is to simply and clearly ask what is right and wrong, and to pursue a sense of standardized justice for all.









Bibliography
Carr, David. (2004) Dogged Reporter's Impact: From My Lai to Abu Ghraib. The New York Times, May 20, 2004.

Eberting, Cindy. (2000) Uncovering War Atrocities – Stories Have Always Been Tough Sells.
The IRE Journal, September/October 2000.

Gladstone, Brooke. (2008) 40 Year Later: Hersh on My Lai. NPR, “On the Media,” August, 15, 2008. Produced by WNYC, New York, NY.

Hersh, Seymour (1969) Ex-GI Tells of Killing Civilians at Pinkville. St. Louis Post-Dispatch, November 25, 1969.

Hersh, Seymour. (1969) Hamlet Attack Called Point-Blank Murder. St. Louis Post-Dispatch, November 20, 1969.

Hersh, Seymour. (1969) Lieutenant Accused of Murdering 109 Civilians. St. Louis Post-
Dispatch, November 13, 1969.

Merrill, John C. (1994) Legacy of Wisdom: Great Thinkers and Journalism. Iowa State
University Press, Ames, Iowa.

My Lai Massacre. (2009, March 11). In Wikipedia, The Free Encyclopedia. http://en.wikipedia.org/w/index.phptitle=My_Lai_Massacre&oldid=276401557

Oliver, Kendrick. (2006) Coming to Terms with the Past: My Lai. History Today, February 2006.

Election Day 2008

I just got home from the polls and wanted to document the vibes in the air today. It's just so exciting being part of this, and even though I voted for Green Party candidate Cynthia McKinney for president (my biggest issue, as always, remains lack of choice), I am hoping for an Obama win. And regardless, it feels like we are finally waking up from the long, deep sleep we've been in as a nation for the past 8 years.

I'm skeptical as ever regarding Obama's plan for America, and I have yet to trust any politician. However, I'm going to support his presidency (should we find out later tonight that he's won) and will consider voting for his second term should he follow through on his lofty promises. He does have a chance of removing some of the deep cynicism embedded deep within my psyche---and conversely, he could also be the biggest disappointment in history.

For better or worse, today is the beginning of a new era in this country.

The End of the "Free" Market?

This week has been insane, with the bailout of AIG, the collapse of Lehman Bros and the buyout of Merrill Lynch, and finally the massive $700 billion federal financial rescue plan. It's an unprecedented repudiation of the ideals of deregulation and limited oversight as championed by fiscal conservatives over the past 3 decades. Ronald Reagan, that slick snakecharmer, used to famously say that government wasn't the solution---it was the problem. Well, considering that these federal bailouts were literally the ONLY OPTION for preventing Great Depression-like financial ruin, I wonder what the Gipper would be thinking now. Seems that government was the only solution possible here. Free Market Fundamendalists like to think that the market will solve all problems through some sort of magical, mystical, Santa Claus-like "invisible hand." But what happens when that hand is caught in the cookie jar? Who slaps that hand when it's been bad?

I only wish that the collapse of conservative ideology could happen in a vaccuum and didn't have to drag the rest of us down.

Drill Drill Drill

All the recent talk of offshore oil drilling spurred me to write this essay.

COM 471
08/15/08

“Drill, Drill, Drill”---John McCain, 2008

The U.S. presidential campaign has always been a home for outlandish claims and vague policy promises. From the first President Bush's “No New Taxes” refrain to the current's “Restoring Integrity to the Oval Office,” presidential candidates have never shied away from lofty, persuasive appeals long on emotion but short on facts. As these two examples (and countless others throughout our sordid electoral history) show, these claims are generally nothing more than lip service designed to mobilize voters around a candidate's cause. This year's presidential campaign is no exception. In fact, with all of the current concern over energy, the economy, and the environment, it should come as no surprise that political discussion around the water cooler these days involves the one issue that binds together those three major policy rails: Offshore Oil Drilling.

Republican candidate Senator John McCain, attempting to direct the tenor of this ongoing debate, recently reversed his longstanding position supporting the Congressional ban on drilling in the Outer Continental Shelf (OCS). McCain now argues in favor of drilling, and has featured this issue in the forefront of many of his recent stump speeches and campaign advertisements. Drilling, McCain argues, would help the United States achieve 3 major objectives: (1) a reduction in the price paid by consumers at the gasoline pump; (2) greater energy independence for the United States as a whole; and (3) a reduction in the U.S. trade deficit as a result of lessened oil imports from abroad. (McCain, 2008)

Obviously, McCain's proposal comes at a time when consumers are facing increased pressure at the pump, with gasoline prices having recently reached into all-time record territory. Offshore drilling is such a critical issue that it is literally featured first on his campaign website, ahead of even the current housing crisis and wars in Iraq and Afghanistan. Considering a recent Rasmussen poll found that nearly 70% of Americans support offshore drilling, it is easy to see McCain's political motivation. But will offshore drilling really help achieve the objectives McCain has identified---or is this rhetoric simply red meat designed to appeal to the broadest political base possible? A close analysis of McCain's three major claims shows it to be just another false electoral promise, steeped in emotional appeal yet severely lacking on facts. Let us examine each claim on its own merit.

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Claim 1: Offshore drilling will help to reduce gasoline prices

Oil prices, and subsequently, gas prices, have reached record highs in 2008, creating economic and financial hardships for millions of Americans. A number of separate solutions have been offered, amongst them a moratorium on the Federal gasoline tax (also proposed by McCain), pleas to oil-producing countries such as Saudi Arabia to increase production, and even the conversion of formerly food-producing crops such as corn into the oil replacement ethanol. However, none of these solutions has made much of a dent in the price of gasoline, and the high prices continue to affect the overall economy, which has been teetering on the brink of recession for much of the past two years. Because of its critical place in a society which has been built upon the abundance of cheap oil, gasoline price increases have affected all facets of the economy and created a tense environment for nearly every American. Considering the failure of all other approaches in reducing the price of gas, offshore drilling seems to be a perfect solution---or at least the only one left---and the fact that a majority of Americans support lifting the ban seems logical.

Unfortunately, however, many independent economic sources, both liberal and conservative, have roundly criticized the position that offshore drilling will have any immediate reduction in the price of gas at the pump. The Bush Administration's own Department of Energy, in their 2007 “Annual Energy Outlook,” was blunt in their assessment of the impact offshore drilling would have at the pump:

Access to the Pacific, Atlantic, and eastern Gulf regions would not have a significant impact on domestic crude oil and natural gas production or prices before 2030. Leasing would begin no sooner than 2012, and production would not be expected to start before 2017. Because oil prices are determined on the international market, however, any impact on average wellhead prices is expected to be insignificant. (DoE, 2007)

This bland analysis from an administration comprised of many former oil executives should be taken seriously, yet claims such as McCain's are allowed to take root without any factual analysis of the reality of his position. The last sentence of this quote is most important, as it invalidates practically McCain's entire claim that increased supply through domestic production will help drive down prices; since oil is a global commodity, it is traded on the international market, and that is where costs are determined. The more liberal Boston Globe hits directly on this point, in no uncertain terms:

"Suppose the US produced all its oil domestically," said Robert Kaufmann, director of the Center for Energy and Environmental Studies at Boston University. "Do you think oil companies would sell oil to US consumers for one cent less than they could get from French consumers? No. Where oil comes from has no effect on price." (Boston Globe, 2008)

This basic economic principle---of shared global resources determining price---lays bare McCain's proposal and exposes it for what it is: simple red meat in the heat of an election campaign. The record highs recently achieved in oil prices come from increased demand, from rapidly-developing countries like China and India, and has literally nothing to do with supply, which has not fluctuated or decreased in the same time period. Recent events prove this equation: the reductions achieved in the price of oil over the past three weeks have come with no increase in supply whatsoever, but instead have come as a result of the largest drop in U.S. demand since 1982: “U.S. oil demand during the first half of 2008 fell by an average 800,000 barrels per day compared to the same period a year ago, the biggest volume decline in 26 years, the Energy Information Administration said on Tuesday.” (Reuters, 2008) Although McCain has admitted that economics is not exactly his strongest suit (“I’m going to be honest: I know a lot less about economics than I do about military and foreign policy issues---I still need to be educated.” [McCain, 2005]), reversing the roles of supply and demand is a most egregious error for the presidential candidate of a major political party.

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Claim 2: Offshore Drilling will Result in U.S. Energy Independence

While this is most certainly related to the principle of shared global resources as discussed above, refuting the very idea of such a thing as energy independence in a global economy, the claim still deserves its own discussion. McCain's claim that drilling will result in energy independence is facetious at best, and this is due to the tiny impact any offshore drilling would have in overall worldwide supply. According to the National Resources Defense Council (NRDC), America's oil production has been in decline since its peak in the early 1970s, at which time the U.S. was the world's largest producer, a title since assumed by Saudi Arabia. “With just three percent of the world's oil reserves, our nation simply doesn't have enough oil to impact the global market or drill our way out” of our dependence on foreign oil. (NRDC, 2008)

The real driving force for U.S. Energy independence will not come from drilling into what amounts to an additional 920 days of oil supply, which, according to the DoE, is what comprises the proven reserves of the outer continental shelf. (DoE, 2007). Instead, McCain's arguments for drilling obscure the real solutions for energy independence such as conservation, new technologies, and greater maximization of available sources such as solar, wind and nuclear power. While, to his credit, McCain does mention these additional solutions (especially nuclear), they often come across as secondary, almost token, policy positions built around the centerpiece of increased domestic oil production. But as McCain’s rival for the presidency, Barack Obama, often remarks, any policy involving increased oil production amounts to nothing more than a “gimmick.” (CNN, 2008)

Even independent sources such as influential Texas oilman T. Boone Pickens have begun to call for energy independence through a set of initiatives aimed at reducing our dependence on foreign sources of crude oil. For example, the “Pickens Plan” calls America the “Saudi Arabia of Wind Power” and makes the claim that nearly 20% of electricity power could be supplied by wind farms alone:

The Department of Energy reports that 20% of America's electricity can come from wind. North Dakota alone has the potential to provide power for more than a quarter of the country. A 2005 Stanford University Study found that there is enough wind power worldwide to satisfy global demand 7 times over — even if only 20% of wind power could be captured. (Pickens, 2008)

It’s particularly noteworthy that a plan such as this comes from a billionaire oilman, who made his fortune importing and reselling foreign oil. This fact alone lends a certain credibility to his claims, and flies in the face of McCain’s political posturing around offshore drilling. The Pickens Plan makes no mention of increased offshore production, other than to call it a mistake.

Pickens goes a step further with his plan, calling for increased domestic natural gas production to “bridge the gap” between oil-based gasoline energy and future clean technologies such as hydrogen. In fact, he suggests that we are already well-prepared to transition directly into this cleaner and more abundant source of energy:

Natural gas is significantly less expensive than gasoline or diesel. In places like Utah and Oklahoma, prices are less than $1 a gallon. Natural gas is our country's second largest energy resource and a vital component of our energy supply. 98% of the natural gas used in the United States is from North America. But 70% of our oil is purchased from foreign nations. (Pickens, 2008)

Logically, this makes perfect sense. Why, argues Pickens, should we continue to import oil, or increase offshore production, when we are already in possession of more than enough energy to fuel our country? Any increase in offshore production signals either an ignorance of the potential alternatives; or, more ominously, the immense clout of the vast oil lobby in Washington, D.C.

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Claim 3: Offshore Drilling will help Reduce the National Trade Deficit

Discussion of the U.S. trade deficit is generally reminiscent of a complex shell game---it is incredibly easy to highlight one area (in this case, oil imports) while obscuring another (domestic fiscal policies such as the recent “stimulus package”). Politicians love to talk about the trade deficit because it is incredibly easy to manipulate statistics to favor one’s position. McCain’s claim that 41% of the U.S. trade deficit is due to oil, while factually-based, obscures many of the intricate and sophisticated factors which contribute to that deficit. The most glaring obfuscation is that of the role of the global currency market on imports and exports. Over the past 8 years, the value of the dollar has declined by nearly 60% when measured against the Euro and other major international currencies (OANDA, 2008). This raises a simple economic question of purchasing power, and McCain’s claims completely ignore the fact that the purchasing power of the dollar is considerably less than it was even just a decade ago. Even though we’re not importing much more oil today than in 1998, it costs considerably more to do so today because of the incredibly weak dollar. While McCain is correct that 41% of import expenditures are due to oil, he fails to mention this important economic component. Were the dollar to regain its footing in international currency markets, the trade deficit would be immediately reduced without producing a single additional drop of oil.

Another major factor impacting the U.S. trade deficit is the impact of the recently-passed “Economic Stimulus Package” of 2008. In order for our empty Treasury to provide $600 individual tax rebates to millions of citizens, the government had to borrow billions of dollars from international investors (coincidentally, from rich oil-producing nations benefiting from the recent skyrocketing oil prices). This, along with the aforementioned weakness of the dollar, drove up the trade deficit this year more than any other mitigating factor, including oil. According to the Congressional Budget Office, the nonpartisan financial wing of the government, the deficit had been reduced to less than $170 billion for fiscal year 2007, but had grown to a projected record high of $482 billion for 2008. Jim Nussle, the director of the CBO, confirmed the dynamics behind this rapid increase: “The primary reasons that there will be larger deficits in 2008 and 2009 are because of the bipartisan growth package or stimulus checks… as well as slower economic growth.” (CBO, 2008).

Interestingly (and quite compellingly), some economists have even indicated that the current deficit and related economic woe is good for the long-term energy outlook in the United States. While noting the short-term hardships on the current economy, most notably the trade deficit, the Federal Reserve Bank of San Francisco argues that such hardships will force a change in the oil-based economy and lead to a broader change in habits in both business and public usage:

…It could take a while for the U.S. trade deficit to adjust in response to persistently higher oil prices, as businesses need time to install new, less energy-intensive equipment. However, one positive and important implication is that eventually the U.S. Economy will become more energy-efficient, which, in turn, would help contain the cost of oil imports and increase the economy’s flexibility in absorbing future oil price increases. (FRBSF, 2006)

It is certainly not unusual for politicians from either the liberal or conservative sides to lack a long-term outlook on most policies. However, when a supposed long-term solution is sold to the public, such as McCain’s claim that increased offshore drilling will bring down prices, it is important that voters remember the facts and not be distracted by the shell game.

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Emotional Appeal: Should We Pump Every Last Drop of Oil out of the Ground?

The previous sections of this essay have focused on factual refutations to the three main points of John McCain’s plans to lift the ban on offshore oil production. However, at this point, I would like to make a more personal, emotional argument against offshore drilling, in the hopes of appealing to one of the main traditional platforms of the Republican Party: Family Values. For the party so closely associated with these values, it often strikes me as ironic that there is not more of a concerted effort to provide a long-term plan to make the world a more livable place for our children and grandchildren. “Drill, drill, drill” seems incredibly short-sighted.

Oil is almost always closely associated with gasoline and energy, but rarely mentioned is its greater impact on our quality of life through the thousands of other products derived from it. Plastic, one of the most ubiquitous innovations of the 20^th Century, has made an incredible impact on today’s modern society. It is almost impossible today to imagine a world without plastic. Our quality of life would be nowhere near what it is today without this amazingly flexible and malleable substance, and it is an integral component in almost every aspect of our modern lives. Plastic, for example, provides safe repositories for food, has been critical in the development of computing technologies, and has allowed the inhabitants of our large planet to feel closer to one another through improved communication. And there are a million more uses for plastic. For proof, just look around you!

Other usages for oil run the entire spectrum of the modern economy, with important niches in medicine, technology, construction, and many other industries. For example, polyester, an oil derivative, is the most prevalent fabric in the world, long ago replacing cotton (an incredibly energy-inefficient crop which drains the world’s rivers) as the foundational basis of the textile industry. Chemicals derived from oil are used in many of today’s complex medicines, such as treatments for cancer and multiple sclerosis. Our roads would still be paved with cobblestone if not for the invention of asphalt, which uses oil to bind together gravel as a solid, durable substance. This is only the tip of the iceberg of the overall oil economy (one could spend an entire essay discussing only the non-fuel-related uses of oil), but even these few examples underscore our modern reliance on petrochemicals and their importance in our daily lives.

While scholars have debated the coming of “peak oil” for decades now (“peak oil” refers to the point at which we as a global society have used more oil than is remaining in the earth’s crust), it is not debatable that oil is a limited resource. Some scholars have said that peak oil has already occurred, as far back as the 1970s, while others say it won’t happen until the 2050s. Regardless of the details, the simple fact is that one day our global supply of oil will run out. It is unavoidable. Thus begs the ethical question: Should we continue to drill for oil until every last drop has been exhausted in order to save a few pennies at the gas pump? Or, considering all the amazing non-fuel uses for this wonderful resource, should we leave some in the ground for future generations? This is not a question I aim to answer, and I really have no right to answer it anyway. This, instead, is a question for every parent of every child on the planet. While consumers are most certainly under strained financial pressure due to current high energy costs, this pressure pales in comparison to the post-modern nightmare one imagines when considering a future without petrochemical products. Surely the party of Family Values needs to consider the implications of a drastic drop in our quality of life.

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Clearly, the presidential campaign is not, and has never been, a place for factual-based claims and big-picture analysis. Instead, for centuries, our candidates have played off our emotions, hopes and fears in order to win elections and control policy from the White House. Both of the major political parties are players in this traditional pageant, and neither party is innocent of the transgressions of truth germane to a country which values free speech and democracy. Deception is a “necessary evil of democracy”, as F.F. Centore has said, and it has always been our duty as informed democratic citizens to sift through the marketplace of ideas with our own rationality and attention to critical thinking. Yet, the recent debate over offshore oil drilling is one of the most blatantly fallacious arguments ever to grace the campaign trail, coming at a time when this issue instead requires hard truth, new ideas, and forward thinking. John McCain’s cunning obfuscation of some of the most basic economic facts behind this argument is nothing short of stunning. These false claims need to be addressed and inserted into the public debate, especially with polls showing overwhelming support for the lifting of the ban on offshore drilling. And after we’ve debunked these false claims and have moved beyond this specious discussion, perhaps it will finally be time to address some of the larger concerns our oil-based society faces as we move into a future with oil as a limited, and not abundant, resource.

Bibliography

Centore, F.F. Two Views of Virtue: Absolute Relativism and Relative Absolutism. Greenwood Press, Boston, MA. 2000

CNN. “Obama Slams McCain’s Energy Policy.” http://www.cnn.com/2008/POLITICS/06/24/campaign.wrap/index.html

Congressional Budget Office. “2008-2009 Budgetary Forecast” http://www.cbo.gov/search/sitesearch.cfm?criteria=trade+deficit+forecast

Federal Reserve Bank, S.F. “Oil Prices and the U.S. Trade Deficit.”http://www.frbsf.org/publications/economics/letter/2006/el2006-24.html

McCain, John. “Presidential Campaign Website.” www.johnmccain.com. 2008.

NRDC. "Take Action: Tell Congress You Don't Buy the Lie" http://www.nrdconline.org/campaign/stop_arctic_and_offshore_drilling

OANDA. “Currency Converter and Historicals.” http://www.oanda.com/convert/fxhistory

Pickens, T. Boone. “The Pickens Plan.” http://www.pickensplan.com/theplan/

Rasmussen Polling Service. 2008. http://www.rasmussenreports.com/public_content/politics/general_politics/67_support_offshore_drilling_64_expect_it_will_lower_prices

U.S. Department of Energy. “2007 – Annual Energy Outlook.” Energy Information Administration.

Wangsness, Lisa. "New Offshore Drilling Not a Quick Fix." Boston Globe, June 20, 2008.