We must all be saturated with presidential primary campaign “news”. While there has been little of substance going on in the circus on the Republican side of things, the rise of Bernie Sanders’ campaign on the Democratic side does present some profoundly important questions for us.  At this stage, those questions are not really about whether Senator Sanders can win the Democratic nomination, thereby defeating Secretary Clinton. Rather, the biggest issue is whether we are going to deal with the public policies the Sanders’ campaign has revealed to be foremost on the minds of very likely a majority of Americans.

Apparently, the Senator is bound to demonstrate that Mrs. Clinton, if she is the Democratic nominee, cannot ignore his proposals because he continues to win primary votes. There is a deeply appreciated rationality to that program.  It is likely the best way to avoid whatever afflicts young and enthusiastic supporters that leads them to stay home when their candidate has not been nominated.  Like every barrier that has been thrown up to oppose the Senator (socialist, Jew, No super-PAC), there is a cynical view that the party platform is meaningless. That may have been true in the past, but if such notions as single-payer health care, higher taxes on the 1%, a $15 minimum wage, facilitating union organizing and free college tuition make it into the party’s platform, there will be more support for the nominee than the old days.

Power in a democracy may once and for all be defined – not just as the vote of the people – but the vote of thinking people.  Of course, such a profound conclusion would mean the defeat of the Republican candidates everywhere they seek to sully the American ideal.  The Republican Party has demonstrated that it intends to exercise power without governing.  This is perversely justified by a faux ideology of small government, but runs alongside the most personally invasive legislative proposals in the Country’s history.

While Mrs. Clinton is not my choice for the officer of President, nor the choice of millions of people who have thrown their energy into Bernie’s campaign, she is a far better choice than Donald Trump. That is not to say that Mrs. Clinton is simply the ‘lesser of two evils’ because she is not evil.  Over years she has demonstrated a commitment to rational government based on decency.  Her career has been much more in the mode of conventional means.  No one anticipated the impact of Senator Sanders’ approach to the presidential campaign. Had she done so, I think Hillary would have preferred it for her own effort.

But, we Bernie supporters are not going anywhere. When the Democratic nominee is selected, no matter who it is, we’ll be around to make sure that what we liked in the Bernie Sanders campaign, will become White House policy. More importantly, we’ll deliver a Congress that will deliver laws necessary to assure the eventual solution to those problems.

One thing must be accepted, I think, for there to be any light shed on our future – we all have to vote and vote for the Democratic ticket.  The alternative is voting for a Republican or not voting at all.  If someone stays home and doesn’t vote, that is tantamount to casting his/her vote for a Republican. It is also abandoning the rest of us to electoral consequences that are foreseen by the legislative and governmental horrors of the last several years.  Mrs. Clinton as President will, no doubt, reverse many of the brutally stupid laws enacted by the Republican Congress and state Republican officials.  That is enough to get me behind her if Bernie cannot get the nomination.

I have voted in every election for which I was eligible since 1962 – the year I turned twenty-one.  Each such election was said by someone to be of critical importance to our democracy and, perhaps, each was. However, in my considered and well-aged view, this is the time when we declare we are taking over because, if we don’t, disaster looms.  In other words, this is the most critical election of my life and, I suggest, your lives.


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The Engineer and Automobile Design

Passenger cars, trucks, vans, motor cycles and a vast array of transportation devices have all become a major part of our lives – particularly in the United States. As products, those devices have made fortunes for the manufacturers, the makers of parts and the constructors of roadways. Thousands upon thousands of people have been employed to engineer these devices and these engineers earn a good living.

In the US, we built highways, bridges, tunnels and elaborate interstate systems to accommodate motorized vehicles – at enormous public cost. While the car was liberating – giving freedom of movement never previously experienced by the species – it was also dangerous. In the 1950s and 1960s, tens of thousands of Americans were dying annually in automobile crashes, many more were seriously injured. A fair chunk of those deaths and injuries were preventable by a better vehicle design. Spurred by Ralph Nader’s book, “Unsafe at Any Speed”, Congress passed the National Highway Traffic Safety Act in 1965 to address the problem of defective design.

In a paean to automotive engineers published in the New Yorker magazine issue dated May 4, 2015, staff writer Malcolm Gladwell would have us believe that it is so difficult to identify what is and what is not a defective automotive design, that the engineers that design these ubiquitous rolling torpedoes need a break in public opinion. Mr. Gladwell’s essay is a virtual encapsulation of all the defenses posed by the manufacturers in tort cases that have so often been rejected by juries. Those defenses are specious – particularly as articulated in this New Yorker article.

The statute addressed the issue of automotive design by authorizing NHTSA to establish safety standards for the design of cars and in some cases trucks. The Federal Motor Vehicle Safety Standards were, unfortunately, made self-enforcing. A manufacturer was, for each relevant design change, required to do the tests unsupervised and then to certify the vehicle complied with the applicable standards. Of the most critical and most clearly set out was FMVSS 301 – the fuel system integrity standard.

FMVSS 301 required, among other things, that in a full rear end collision the fuel tank leak, if it leaks at all, no more than one ounce per minute. Ford crash tests of the 1973 Pinto revealed that its fuel tank did not always meet that standard. Four years before the 1973 effective date of FMVSS 301, Fairchild-Hiller issued its final report to the US Department of Transportation, National Highway Traffic Administration (NHTSA) on fuel system design. That report concluded, among other very obvious things, that the best way to design a safe fuel system is to place the gas tank as near the center of the vehicle as possible.

The Gladwell piece uses the Pinto fire cases as a claimed “template” for what followed in auto safety recalls. His subject engineer – the “lamenting” one – is Denny Gioia, a retired engineer from the Ford Motor Company recall office. As he describes it, the “lament” of Gioia was that he needed always to find a pattern of failure and to have a “traceable cause” before he could suggest to his superiors that there may be a defect in the subject car.

Other than Mr. Gladwell’s obvious shortage of knowledge about American automobile defect litigation, there are a couple of things about his set up of Gioia’s job problem that are just silly. The Pinto’s fuel tank location was a design feature that violated all then known safety standards – a fact that was known to the engineers that did the design. A rear-located “drop tank” was an assembly-line expediency. It was more difficult to design a safe tank and slowed down production.

The culpable error occurred before the car was actually made. It failed crash tests that were required by the law. The first thing that Gioia should have done when he got the pictures and the report from the field engineers is to call for the tests records. That would have told him immediately that the vehicle should be recalled. On any level, it is bad engineering not to do that and once that is done and the higher ups don’t recall the vehicle, then criminal liability ought to attach – but at least the vehicles should be recalled.

No violation of obvious unsafe design should require a particular effort of an engineer in a company recall office. It shouldn’t get there. If a case or two do come to the attention of an engineer from the recall office, there should be no lamenting. As nice a guy as Denny Gioia may be, his angst should have been irrelevant. Fuel tank design issues were just too clearly defined and way too dangerous to risk failure.

One of the fundamental errors that Gladwell makes in his essay is to suggest that because every small car manufactured in the early 1970s had a rear mounted drop tank, then the Pinto couldn’t be defective. The error is serious because it relieves the individual engineer of the responsibility of doing a safe design – he need only do what other manufacturers have done. Cross-company conformity is a not a measure or definition of unsafe design. In this instance, every small car by any maker is defective if its fuel tank is in the rear of the car with insufficient protection from puncture in a foreseeable collision.

Another fundamental error that Gladwell makes is the failure to deal with the industry’s most deadly design defect and the role that engineers played in designing it, continuing it and defending it – the General Motors pickups of model years 1973 through 1994. As of the time of my retirement in 2005, the death toll attributed to post collision fuel-fed fires in GM light trucks exceeded twelve hundred, with multiples of that number in serious injuries.

While GM certainly engaged in ethically challenging conduct regarding reporting the post-manufacture record of these light trucks, the clear culpability of the engineer occurred at its initial design. The chief engineer assigned to design the new truck for GM in 1972 was a guy named Earl Stepp.

In about 1978 or 1979, Stepp gave a deposition in a tort case of a Florida woman seriously burned in a post collision fuel-fire involving a GM light truck. The case resulted in a significant plaintiff verdict. Little or no discovery had been done by the plaintiff’s lawyer, but Mr. Stepp made that pretty much unnecessary. When asked why he designed the fuel system so that the tanks were outside the frame rail, protected only by the thin metal of the skin, Stepp responded candidly: ‘ Marketing. Marketing wanted more fuel on board, at least twenty gallons.’

For the better part of my twenty years of involvement with this defect, GM insisted that the design passed FMVSS 301 crash tests. In the final analysis, that was exposed as false. What happened was that initial testing of the design passed a test. Then, that test was relied on to certify the design in each successive model year. When a test did result in a failure, the company certified based on the earlier successful test. Earl Stepp’s initial bad design was made worse by GM’s proving ground engineers and, in particular, engineers assigned to post manufacture assessment.

The point here is that many a commentator, the Secretary of Transportation, Federico Pena, and, by inference, juries were unpersuaded by the difficult choices required of an automotive engineer in placing the fuel tank on GM’s light trucks.

The entire empathetic thesis of Gladwell simply doesn’t hold water on any level. Clearly, an engineer is charged with responsibility of dealing with the environment in which his device will operate. Quite aside from the legal and regulatory environment in which a car must operate, there is the reality of American roads. As an example, Gladwell repeats the often repeated fact that speed is the cause for most American traffic deaths. But those speeds are almost always at levels that are far below the vehicle’s capabilities. Automobile engineers design a car that can go 130mph, but that car cannot withstand a collision at that speed and a collision at that speed will most certainly kill its occupants. Speed not only kills, it sells.

Ford’s and Chrysler’s former president, Lee Iacocca, famously was quoted as declaring that “Safety doesn’t sell”. No engineer employed by any car company was, at that time, credibly charged with designing a safe car. It wasn’t, in the ‘70s and ‘80s, a primary duty of an engineer to consider safety and the design of the Pinto and its peers and the design of the General Motors light trucks demonstrate the point.

The entire complex of design, manufacture, sales and regulation is a labyrinth of hypocrisy and Gladwell’s essay casts the whole bundle into a cold fog. An example is the lobbying activities of car companies trying to hold down the impact speeds for safety standard testing. The whole time that effort is going on, virtually every product of American auto makers is designed to go much faster than safety standard required impact speeds. The rank and file engineer cannot be concerned about safety because his employer isn’t. Unless, of course, that employer gets sued.

Tort liability in most states imposes a more exacting and realistic burden on engineers than the regulatory scheme of NHTSA. Broadly stated, the tort rule is that the regulations are not the limit of the car maker’s responsibility. The engineer cannot take the stand in a design defect case and claim moral or legal immunity simply because he complied with Federal Motor Vehicle Safety Standards. If the harm your design does outweighs the value of doing it another way, you (your employer, actually) are liable under design defect liability laws of nearly all states.

It seems fundamental that any engineer is charged with an awareness of the consequences of his work. Thus, if an ignition system is susceptible of disconnecting such vital functions as power steering, airbag ignition or power assisted braking, then it becomes real important for the engineer’s design to avoid such disconnection. Alternatives were clearly available on the day the faulty design appeared in a schematic, so there really is no lamentable choice issue. The potential consequences of a disconnected ignition switch far outweigh the cost or difficulty of a safer design – as conclusively proven when General Motors came up with a different and better design using the same part number. The recall office should not be the place where the defect is caught – it is also obvious that it wasn’t.

This brings me to the allegory that Gladwell is so apparently fond of in his article. A golfing foursome that includes an engineer is following a foursome consisting of four blind fire fighters who are understandably slow to play. The firemen were blinded in fighting a fire at the golf club and have been rewarded with free play by the club. The frustrated foursome that includes the engineer all have views of how to speed up play, only the engineer asks why the firemen don’t play at night. This, Gladwell insists, allegorically explains the severe logic of the engineer in solving a problem. I think it illustrates quite the opposite.

The golfing engineer has ignored the reality of blind golfers – not that they can’t enjoy the activity, but that they need a sighted companion to help them do it. Nothing about a night round would aid the blind players and the generosity of the club would be lost if that were the requirement. The golfing engineer, with his pithy suggestion, has failed to understand the consequences of what he proposes.

To assert, as Malcolm Gladwell has in this piece, that automobile engineers are being bum rapped by blame for dangerous vehicle designs, is darkly humorous in light of a memorandum written by a GM engineer named Edward Ivey in June of 1973. Ivey was a member of the advance design team at the Oldsmobile, at the time assigned as the lead division in GM on fuel system integrity. The report provided a financial rationale for not recalling vehicles with defective fuel systems by comparing the average cost to the Company of resulting deaths to the cost of recall and redesign. In hundreds of plaintiff law offices around the country this was dubbed the “let ‘em burn letter.” Ivey, like Gioia, is likely a nice man engaged in a job that sells products that are more dangerous than they should be. They are not, however, blameless.

Gladwell’s article may be found here: http://www.newyorker.com/magazine/2015/05/04



Posted in Automotive Engineering, General Motors, Malcolm Gladwell, NHTSA, Pickup Fuel Tanks, Uncategorized | Comments closed

The Ferguson Grand Jury Result

FIRST, there is no question in my mind but that the St. Louis County prosecutor fashioned the presentation to the grand jury so that it gave the result he wanted – a no true bill.  That is easy to do because the proceeding is not an adversary one, which is to say there is no representative present to question the prosecutor’s evidence, to test its veracity to emphasize another theory. In short, a grand jury proceeding is not a trial and is not charged with deciding guilt or innocence.  I think McCulloch, the prosecutor, has remarked in the past that he could get an indictment against a ‘ham sandwich’.

          Cases of this nature need to be tried.  The system must perform its essential function of deciding the truth of a matter in a fair contest that is public.  When the prosecutor has a point of view, in most instances a view that the accused should be charged, he or she can fashion the presentation with a free hand, limited possibly only by the judge – whose role is extremely limited. 

          In the absence of an adversarial contest where contending parties are represented and the proceeding is public,  a grand jury that decides guilt or innocence is a star chamber, long ago discredited as a means to just governance.  The litany of evidence supposedly presented to this grand jury is a description of what one would expect to be presented in the course of a trial where the issue is guilt beyond a reasonable doubt.  When that evidence is presented, as in the Ferguson grand jury, it is a thinly disguised effort to get the result the prosecutor wants. 

          The question of “probable cause” – the only legitimate issue for the grand jury – is a simple one.  Did unarmed Michael Brown die from bullets fired by Officer Wilson? That is known and there is no contest that it is true.  Was it a crime? The definition of homicide ( pretty universal throughout American jurisprudence) is death by a human hand.  Once again, Wilson shot Brown and Brown died for those shots.  But “homicide” of itself is not a crime.

          Is there evidence that the homicide was not privileged, i.e. excused because it was in self-defense. There are two pieces of undeniable evidence that suggest that self-defense was not involved: Brown was unarmed and Wilson fired six times hitting Brown in the body each time. That is all the grand jury need know to find there is probable cause to believe a crime has been committed.

          Whether the evidence is sufficient to conclude beyond a reasonable doubt that Wilson acted justifiably in self-defense is a matter for the petit jury after a trial.  Of course, a trial would have to do something about the obvious bias of the prosecutor or we end up at the same place- an unjust result.

          This proceeding was cockeyed.  It is one in which usually the prosecutor has decided there should be an indictment and he presents his evidence to support that result.  The evidence is, also usually, the bare minimum needed to achieve the purpose as a matter of law. Here, McCulloch’s credibility is in serious question given his early resistance to even convening a grand jury; his obvious bias against blaming Wilson, the cop, and his history of manipulating grand juries ( See Charles Pierce, Esquire, RSN post this date).

          Clearly, justice requires a prosecutor do an impartial analysis of the evidence available and decide whether it merits grand jury consideration of the question of probable cause.  That is not what happened here.  The grand jury was convened by Robert McCulloch to be cover for a decision he already made that there wouldn’t be an indictment. Thus, people in Ferguson have a reason to be angry – if not to burn their own businesses and streets.

          Finally, the New York Times and CBS news point out that there are something like 162,000 grand juries convened in criminal cases in the average American year this country.  There is, on average, only eleven (11) of those in which the grand jury fails to return an indictment. Darrel Wilson, on these facts, should have been required to stand trial on a charge of criminal homicide.


          SECOND, Darren Wilson, the cop who shot Brown, testified before the grand jury. His story went entirely unquestioned, his veracity not challenged. There are many, many people accused of crime that would jump at the chance to tell their story to a grand jury unfettered by cross examination. It’s a ‘get-out-of-jail-free’ card.

          Wilson, having been exonerated by a grand jury can now be interviewed for media consumption. Of course, the media gives him every opportunity to tell his story similarly unfettered by awkward questions which, even if asked, can be avoided for the lack of an oath or a judge. That is exactly what is going on as I write.

          THIRD, the trashing, burning, looting response among those who supposedly were protesting the failure to indict Wilson may as well have been carried out by McCulloch’s personal cadre. That this is a possibility is suggested by the Governor’s failure to deploy the National Guard troops at his disposal and ready for riot duty on the night the result was announced.

          It never makes any sense that people damaged by some outrageous injustice demonstrate their outrage by pillaging their own neighborhood.  It is a predictable phenomenon that a cunning protagonist can manipulate for his own benefit. Certainly the powerful have nothing to fear. The damage is done to the very community they have oppressed. The images conveniently demonstrate the protestors are unworthy. It is always awkward when the victims of oppression express their indignation peacefully, with dignity and without vulgar violence.

          FOURTH, how come this happens – ‘this’ being a grossly ugly manipulation of the judicial system to achieve a result typically seen in Fascist regimes?  It appears the basic reason is that, notwithstanding the dominance of numbers, Black people in Ferguson don’t vote. There is only one Black city councilman and therefore there are only a few black cops on a large force.  That would seem to extend the Fascist analogy to consider what we know about the rise of Mussolini and Hitler. The people sat idly by.

          As I understand it, Ferguson is a township within St. Louis County and the general population of that county elects McCulloch.  Maybe every vote in Ferguson cast against McCulloch would not defeat him.  But, if every Black vote in Ferguson voted for leadership that would take him on, McCulloch’s brand of hubris could be reined in and perhaps circumscribed by moral limits.

          Here may be a broader lesson for America this year.  Watch what happens to our country now that the Robert McCullochs of the nation take over Congress and more statehouses. Democracy, it turns out, is not an automatic deposit to your account; it is not a gift from heaven; it is not a natural phenomenon.  It takes some effort – at least it takes the exercise of the right to vote.  That, one can hope, might mean a long look at why American cops carry guns.


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Chicken, Egg and Due Process of Law

If you consider, more or less at once, two recent media subjects about young American men abroad, you will most certainly suffer disorientation such that you cannot see your moral compass – if you have one. Certainly, you cannot quickly conclude from what you see and hear that those conducting the debate are American.

Edward Joseph Snowden, at age twenty nine, allegedly walked away from his job as a defense department contractor with gazillions of American intelligence secrets. He managed to get to Hong Kong and from there to Moscow, where he is now living while Russian authorities are ignoring United States demands that he be extradited back to this country for prosecution. It is the Government’s belief that Snowden has committed serious crimes and damaged American security interests.

Snowden first revealed what he had done to journalist Glen Greenwald, then at London’s Guardian newspaper. Greenwald remained in touch with Snowden and has served to trumpet the claim that Snowden is a hero for exposing the pervasive and widespread spying by the United States National Security Administration. Many on what might be called the American left enthusiastically endorse the notion that Snowden is a latter day Daniel Ellsberg – a patriotic hero. Indeed, many have suggested that Snowden be granted amnesty from the crimes he is alleged to have committed. Snowden has now released statements in which he insists that his disclosures were in the national interest and Greenwald has published a book that apparently details that claim.

Bowe Bergdahl is just a year or so younger than Snowden, but is an American soldier who was held captive by a sect of the Taliban in Afghanistan for five years. Bergdahl was released as part of a trade for five supposed terrorists being held at the American prison at Guantanamo Bay, Cuba. At this writing, Bergdahl has not made a public statement, appeared publicly or through a spokesperson – he’s apparently under medical and/or psychiatric care and has been since being turned over on the plains of Afghanistan.

Although initially happy with the release of Bergdahl, the Republicans in Congress have done a complete turnaround and are savagely critical of the release of Bergdahl because (a) the White House failed to notify Congress in advance of its intent to exchange five inmates from Guantanamo, and (b) the released inmates are so dangerous that their release could never justify the recovery of an American soldier. Additional criticism of the exchange arises because of the claim by some – mostly those with whom he served at the time of his capture by the Taliban – that Bergdahl didn’t deserve to be recovered or considered a hero because he left was a deserter or, at least, he criminally left his post in a war zone.

The common element in both these stories is the mad, noisy and endless declarations that appear in the media concluding the right or wrong of either man’s position without any consideration for due process of law. That dearth leaves the field open to speculation as to whether either man is a cowardly criminal.

Unsworn opinion testimony is not admissible as evidence in an American court of law, unless as an admission against the interest of the speaker. What that means is that we cannot reasonably reach a conclusion about the cowardice, bravery or guilt or innocence of either man based on anyone’s unsworn opinion. To be sure, reducing the question of either man’s guilt or innocence to such mundane procedures as a trial would eliminate the means by which many a bloviator makes his living, but it would serve this Country and both men much better than what is going on.

Each of these situations presents a serious moral and legal question that has to be resolved within the context of justice as we understand that notion. Can a man escape criminal prosecution if his crime was to expose criminal government conduct? Yes, there are statutes that say he can. The question becomes whether in fact that is what he did. Was he qualified to make the decision that the materials he disclosed were not so damaging to our defense that, when weighed against the public’s right to know, he should be excused?

Congress has this essentially un-American view of inmates at Guantanamo Bay, i.e. they are guilty until someone proves them innocent. They are not entitled to a trial. Certainly, they must remain incarcerated until they die. That position seems to have determined much of Republican thinking – to the extent there is thinking at all.

This ignoring of due process never comes to any good. Either we are a successful democracy or we are another random autocracy that provides rights and freedom based on status and wealth. If we are not the democracy we claim to be we ignore due process and become a scourge for our hypocrisy.

Snowden does not deserve to be considered a hero until he submits his claims to due process of law. Bowe Bergdahl does not deserve to considered a deserter until and unless someone charges him and proves that he is.


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If you vote in the coming election and you vote for the Democratic candidate, there is a real chance we can save the world – if only a chance. If you don’t vote, then you may as well be voting for a Republican. Here’s what that means:

1. Continued obstruction of the government of Barack Obama – appointments not confirmed, agencies not funded, legislation not acted on or filibustered.

2. Contempt for the Office of the President, for the choice of the people of the United States and for anyone that makes rational choices based on science and logic.

3. Failure to enact anything and wasting time and money: voting four dozen times to repeal the Affordable Care Act, holding meaningless ‘hearings’ on supposed IRS targeting conservative groups and the tragedy in Benghazi.

4. Unrelenting assault on women’s rights by draconian state enactments.

5. Devious ways to obstruct black and Latino citizens in the exercise of their right to vote.

6. Refusal to address the repeated misuse of guns and their threat to public safety.

7. Disloyalty to the nation by refusing to fund the Government and precipitating shutdowns and threatening to do it again, costing the taxpayer billions.

8. Denial that global climate change is a scientific fact and refusing to take steps to slow it as extreme weather takes a heavy toll of the Nation’s economy and well-being.

9. Craven submission to the money of the very rich regardless of the public interest.

10. Pursuit of policies that strip the country of well paid jobs, coercing working people from joining together in trade unions, and suppression of wages.

11. Restricting higher education to those who can pay for it .

For the American system to work, for any form of democracy to survive the barbaric strategies of the Republican Party, that party must be forced off its course. The only way we, the People, can do that is to vote against them. When we assure history that the hateful policies pursued by the Republican Party are not acceptable, we can proceed to the solution of problems of governance that in turn assure a safe and secure way of life. Our path to that assurance is marked by the exercise of the only power we have left – our vote.

Anyone who fails to vote for a Democratic candidate in this coming election is selling out his fellow citizens. There is no acceptable rationalization for anything else. The treachery of the GOP is not subject to question. How do you describe threatening the credit of the United States to avoid a tax increase for the wealthy? Is there some rational explanation for denying that the climate is changing and that change threatens severe and extensive catastrophe from one end of the country to the other?

The price we pay for what is left of our democracy is the exercise of the franchise with as much intelligence as we can muster. “Intelligent voting” cannot include voting for any Republican  or refusing to vote at all. All of us – every one of us – must rise up off our duff, suck in the air we may someday lose and vote for the Democrat. There has to be accountability,


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