Is Cheek-Kissing a Contributing Factor in the Worst Outbreaks of COVID-19?

[Epistemic Status: As speculative as it gets. Seems plausible, but there could be any number of confounding factors.]

I was looking at the per-capita death totals of COVID-19 around the world and noticed a pattern.

The top six countries on the list are all places where it’s customary to kiss someone on the cheek the first time you meet them in a casual social setting: San Marino, Italy, Spain, France, Belgium, and Andorra. Germany and Austria, countries immediately adjacent to those countries are not so bad. No cheek-kissing in Germany or Austria.

And I’ve read that even within Switzerland, which is a multi-ethnic mix of Germans, French, and Italians, that infection rates are worse among the French- and Italian-speaking Cantons than in the German-speaking ones. Outbreaks are the worst in the cheek kissing countries in Europe. And in the countries in Europe where there are cheek-kissing regions and not-cheek-kissing regions, the cheek-kissing regions are getting it the worst.

Maybe it’s a coincidence, maybe it’s not. But cheek-kissing isn’t that common of a custom worldwide. And it certainly seems high up there on the list of the most dangerous social practices you could concoct for limiting the spread of a disease that infects through droplets.

I’ve heard people debate whether handshaking will survive the post-COVID-19 era. We’ll see. But if there’s one social custom that probably should see its end because of this crisis, sadly, it’s ubiquitous cheek kissing.

Comparing Infection Curves for SARS, MERS, EBOLA, Spanish Flu, and COVID-19

With all the talk of flattening the curve, being past the peak of the curve, or, in some instances, crushing the curve, I’ve found myself wondering, do epidemics and pandemics really follow such a neat mathematical curve? Is it reasonable to expect the number of infections of COVID-19 to resemble a Gaussian probability distribution?

The appeal to a Gaussian distribution is clear. The virus went from near-zero infections to its likely short-term peak in most places in less than three months. Symmetry on the downside would be nice, because it would mean we could go back to near-zero infections again in the next three months.

It’s not such a crazy idea. Look at the curve so far for China. It’s fairly symmetrical.

And for South Korea, the Platonic ideal of competent government policy responses to COVID-19? It’s a little thicker underneath the curve on the right side, but nearly symmetrical as well.

I took a few minutes to look up the infection curves for other epidemics as well, namely SARS, MERS, EBOLA, and the Spanish Flu.

Of the four outbreaks I researched, only one had a single peak.

Looking at Ebola outbreaks for three different countries in West Africa from 2014-2016, they all had a long run-up, with one sharp peak, and then lingered for a while before going away completely.

Ebola 1
Ebola 2
Ebola 3

All the other outbreaks looked very different from Ebola or China’s curve so far with COVID-19, with multiple outbreaks and multiple peaks. For example, here’s what the trajectory of the Spanish flu looked like in England:

PowerPoint Presentation

Three peaks, with the second peak being by far the biggest.

That’s pretty similar to what the infection curve for SARS looked like, three clear peaks (with one mini-peak between the first and second). As with the Spanish flu, the second was the biggest, followed by the third, and then the first.

SARS Curve

MERS looked totally unlike the others, with one huge spike in late 2013 and then a bunch of lesser spikes over the next six years (it’s small, but look for the chart in the middle of the top of this picture).

mers-summary-nov-2019

So what is the curve for COVID-19 in the US going to look like in two years?

I have absolutely no idea. But, given the herky-jerky policy responses and  only semi-effective lockdowns, I’d say there’s a 90% chance that this is NOT going to look like a standard Gaussian distribution. If I had to guess, I’d guess it’s going to look like some sort of mutant camel with lots of bumpiness on the right side. Will the camel have three humps, like the Spanish flu and SARS? That’s a reasonable guess. But it could have two or ten, for all I know.

[Caveat: Please note that for some of these outbreaks I found charts for deaths per capita and for others I found case incidence. Not all apples to apples comparisons, but likely a reasonably proxy of what was going on at the time.]

[Update: The New York Times has started to publish infection curves for different countries. The conclusion so far? Different policy responses, different populations, and different testing regimes all yield different curves.]

The Main Obstacle to Eradicating COVID-19 in the US Isn’t Science or Technology. It’s Legal.

[Epistemic status: Perhaps slightly more knowledgeable than an educated layperson. I’m a lawyer, but this isn’t my specific area of expertise. It gives me no joy to write this, and it makes me queasy to publish it. But I’m going to do it anyway. It needs to be said.]

In facing the first modern pandemic, it’s likely that the greatest impediment to saving human lives and restoring our economy in the US isn’t going to be lack of scientific or technical expertise, but rather our approach to certain legal problems, and, more broadly, the general failure of our regulatory and administrative systems.

There are five issues that might broadly be characterized as legal choices that will limit how effective our response will be to COVID-19. In no particular order:

  • We care about patient consent more than comprehensive testing.
  • We care about preserving privacy of patient health information more than developing a nationwide bulletproof, digital track-and-track regime.
  • Our multi-competency, multi-tiered administration of our public health regime creates too many points of failure.
  • State and local governments just don’t have that much control over the public.
  • Many states’ broad exemptions for vaccination programs may mean what should be the final endgame to COVID-19 might not be so final.

The choices we’ve made with respect to all of these legal issues—they’re all sub-optimal, at least insofar as it comes to limiting the spread of a deadly contagious disease.


As scary as the COVID-19 outbreak has been, it’s been equally impressive to see how quickly and how effectively many have responded to the crisis.

With unprecedented speed, the scientific and technology communities have mobilized to combat COVID-19. Trillions of dollars worldwide have gone into research for finding a vaccine, for identifying antibodies, and other ways to ameliorate the symptoms, causes, and contagiousness of the disease.

There are no fewer than 78 legitimate vaccine programs under development, and the ambition to move forward with those programs at speed is unlike anything ever seen before. Previously, the record to get to market with a vaccine was close to five years. Some COVID-19 programs aspire to solve the puzzle and get to market in less than a year.

In the last week, researchers at Rutgers discovered what they believe to be a much less invasive saliva-based COVID-19 test, and they have plans to produce the test at scale soon.

Google and Apple joined forces to create a track-and-trace app. It’s hard to imagine a tech problem those two companies couldn’t solve by working together.

From a technological and scientific perspective, there are positive signs everywhere you look: Remdesivir and Gilead, Abbott Labs, Bill Gates—there are armies of talented and competent people working on this problem. Only a fool would bet against so many smart people doing great things to combat this disease.

Sadly, it might not matter.

Because as many positive developments are happening on the science and tech side, there are just as many negative things happening on the political, administrative, regulatory, and legal side.

I fear that all of the good work we’re doing with science and technology might be undone by the stubborn refusal of the public to participate in the necessary steps to put the science and technology to work.

Problem #1: Ubiquitous Testing at Scale Won’t Succeed If Many Refuse to Take the Tests

Early in the lockdown process, Nobel-prize winning economist Paul Romer (and son of long-term Colorado governor Roy Romer), wrote a series of blog posts explaining how a systematic, nation-wide testing program, with isolation for positive cases, could allow us to effectively re-open our country and let most people move on with their lives.

Romer showed that this could work even if our tests weren’t very good.

But there are a few problems with this approach (of which Romer is almost certainly aware, since he’s far more intelligent than I am).

First, the testing program is massive—well beyond the scale of anything the US is ready to do at this stage. Second, the testing program assumes compliance by all involved, both in the testing process and in complying with the isolation for those testing positives.

The first problem I suspect we’ll solve sooner or later. The second one I’m not so confident. Absent very rare exceptions, patient consent to medical treatments is sacred in this country. Even with a global pandemic killing hundreds of thousands (if not millions), and arguably some legal precedent that might enable us to do so, federal, state, and local officials have not shown the initiative or the will to conduct a systematic testing regime with persons who do not wish to participate.

If you’ve ever been in an emergency medical situation, perhaps you may remember being asked if you would agree to a blood transfusion if it were necessary to save your life. They ask this question because many people—Christian Scientists in particular—refuse transfusions, even in life-threatening situations.

Simply put, if people don’t want medical treatment, we don’t treat them. That applies in all situations, even in pandemics, and even when that choice could cause other people to die.

To cite one particularly egregious recent example of this, in early March, one of the first known outbreaks of Americans for COVID-19 was on board the Grand Princess cruise ship. According to the San Francisco Chronicle, 2/3 of the people on the cruise ship were never tested before they re-entered the population.

You can design the most ingenious testing process to combat the disease, but if a critical mass of the population refuses to comply, it won’t matter.

This isn’t an empty concern. The incentives for many will be heavily skewed in favor of not taking the test. If you don’t take the test, you can plead ignorance and go about your normal life.

Imagine a healthy 19-year-old with little if any personal health risk associated with the virus. If he tests positive, he’ll be quarantined for at least two weeks, even though he might be totally asymptomatic—and that’s after having been forced to hang out at home for months. If he doesn’t test, however, he’ll be presumed healthy and allowed to hang out with his friends, work, socialize, and do all the fun things that 19-year-olds do.

Some kids will voluntary take tests and comply with whatever suggested protocols our officials devise. Others will ignore them and likely face no consequences.

If, as in the case of the Grand Princess cruise ship, more than 60% of the population refuses to participate in a test, track, and trace program, and local, state, and federal governments are uninterested or unable to enforce compliance, it may not matter how effectively technologists and scientists can scale our testing programs. If the majority of the population won’t participate on a consistent basis, the programs won’t be able to provide the public confidence that our public spaces are safe.

Problem #2. We’re Not Going to Use Patient Health Information to Create a Comprehensive, Mandatory Track-and Trace Regime

We already have the technology that would enable us to create a comprehensive track-and-trace system for every American with a cell phone.

If we wanted to, we could, with the right motivation and administration, upload data from hospitals and other medical facilities where people test positive for COVID-19 into a national database and alert everyone with a cell phone who had contact with the person in the last 14 days to go into quarantine. We could then share that cell phone data with local law enforcement to enforce the quarantine. This would be more effective in controlling and reducing the spread of the virus than anything we’ve done to date.

But we’re not going to do that or anything like it. HIPAA would almost certainly not allow it. There is a narrow exemption from the general HIPAA restriction against sharing health information to communicate with local law enforcement. But taking that information and sharing it across multiple agencies, with the help of tech companies—that’s not something we’re seriously considering.

Similar digital tracing approaches have proven successful in South Korea and Taiwan to limit the spread of the disease. And we have the same technology here. But having the ability to do it means nothing if there isn’t the political will to make it happen. And, if anything, political will seems to be shifting away from, and not toward, more aggressive and restrictive solutions.

Problem #3: If You Leave It Up to 50 States to Fight COVID-19, Some of Them Will Get It Wrong

To paraphrase Nate Duncan of the COVID daily news podcast, one truism of pandemics is that an outbreak anywhere has the potential to affect people’s health outcomes everywhere.

Some states implemented stay-at-home orders in early March. Some waited until April. Some never got around to it. Each of these approaches will doubtless produce different outcomes and different virus trajectories. Some states aren’t ready to lift stay-at-home orders. Some are lifting their stay-at-home orders with only a slight modification of the stay-at-home status quo. Some are allowing for aggressive and major changes immediately.

You and I might have different opinions about which of these will work best. But by leaving it up to the 50 states (and county and local officials), we create at least 50, if not hundreds or thousands, of different policies, which thereby create an equal number of points of failure.

A single state that fails to implement effective control or remediation efforts, even among a subgroup of the population (as we are now learning from Singapore’s example), could lead to a new outbreak among the general population.

While a 50-state regime for determining stay-at-home orders might be the correct interpretation of the Constitution, it leaves the US open to more points of failure than are likely possible to manage. When it comes to eradicating a pandemic, that’s almost certainly a sub-optimal approach.

Problem #4: We Can’t Control All of the People All of the Time

What’s more, it appears that coronavirus is increasingly becoming a political issue, with an increasing percent of the population treating the rejection of stay-at-home orders as an act of political defiance.

There’s an argument to be made that this is more of an issue in the media than it is in real life. Most states that had protests of stay-at-home orders last weekend only had a few hundred protestors. In the context of a country of 330 million people, it’s unclear how much that subgroup really matters.

Squeaky wheels tend to get their grease, however. I suspect that many governors and local officials are making decisions on when to lift stay-at-home orders not based on what they believe to be optimal policy, but rather because of political exigencies.

This is just one more example of where weak political control results in a higher death toll and worse economic damage than might otherwise be necessary.

Problem #5: The Endgame Might Not Be the Endgame if Enough People Refuse to Play

Right now, given the loss of life and economic hardship caused by COVID-19, it might be hard to imagine someone refusing to take a vaccine to prevent it, if one were available. But given widespread mistrust of government and prevailing opinions about vaccines in general, is it so far-fetched to imagine that scientists might develop a vaccine in 18 months, only for 30-60% of the population to refuse to take it?

COVID-19 is a killer. But so were the measles, mumps, and rubella. Plenty of parents today are defying science and refusing a known way to nearly eliminate a known lethal health risk. We shouldn’t be surprised if that process repeats itself with COVID-19.

Some states, like California, have laws that permit only narrow medical exemptions for mandatory vaccination programs. Most states’ laws are nowhere near as strict. Right now, 16 states allow for broad philosophical exemptions to vaccines. Nearly all states allow for religious exemptions—which basically consists of filling out a form that says you have a religious reason to opt out.

Unless states move to tighten these laws now, this debate could well play out with COVID-19 in the coming years. Even after hundreds of thousands of Americans die of this virus, many won’t take the precautions to protect themselves. It’s just a question of how many and how big of a social impact this will have.

It is beyond the scope of this post to comment on whether these above-described policies are optimal under most circumstances or whether they are the best for our society in general. But it would seem self-evident that our current form of government is underperforming what might be considered an optimal policy at the moment.

Perhaps if there were a way to implement what Nick Bostrom describes as “turn-key authoritarianism” in the event of a pandemic, with an enlightened despot technocrat—a sort of American Lee Kuan Yew—available to take over the management of this crisis, things might be better. But turn-key authoritarianism in the hands of Donald Trump holds no more appeal than the current fumbling response of mixed messages, incoherence, and outright deception (And, ultimately, that is the deepest flaw with any form of authoritarian government. Sooner or later that power falls into the hands of a deeply unsavory character).

In the end, the only likely improvements we can make to our system are at the state and local levels and at the margins. While you might not be able to force people to take tests in general, it may be possible to refuse admission into a business or a location if people refuse to take tests. Imagine checks coming in and out of cities, or in and out of restaurants. We don’t have the supply of tests to do this yet, but we probably will eventually. It would be possible to imagine cities, states, and businesses with the resources and the initiative to ensure that persons moving across state borders, entering city limits, or entering certain establishments were being tested.

You can’t force someone to download the new Google-Apple track-and-trace App by law, but you could probably refuse entry to someone into your bar, your town, or your festival if they refused to download a verified COVID-19 tracer app on their phone and show they weren’t infected or at risk. Localized mandatory opt-in programs won’t solve the whole country’s problems, but they might help ensure that certain organizations and events are reasonably safe.

Similarly, we can work at the state level to close loopholes in vaccine exemptions to make sure as few people fall through the cracks there.

These tactics aren’t universal solutions, but they may be effective in saving some lives. Given the government we have, that’s likely the best we can hope for.

22 COVID-19 Predictions for 2020

Every year, I try to do predictions at the beginning of the year and score them at year end. In 2019, my predictions were pretty good. So far, my predictions for 2020 look pretty terrible. So it goes in black swan years.

Regardless, for further educational purposes, here are my new 2020 predictions based on what we know now about COVID-19. Let’s see if I do any better now than I did at the beginning of the year.

1. More than 50 million reported/estimated cases worldwide by Dec 31, 2020. 80%
2. More than 100,000 COVID-19 deaths reported/estimated in the US by Dec 31, 2020. 80%
3. No more stadium events with capacity live crowds in NBA, NFL, MLB, NHL, or NCAA basketball or football in 2020: 60%
4. If any one of the above attempts to perform in front of live crowds, likelihood of going back on that strategy before the end of its season. 80%
5. At least one of the NBA, NFL, MLB, NHL will attempt to have a season 2020, with or without crowds. 70%
6. If that happens, on of those sports will cancel or at least postpone its season once because of a repeat COVID-19 outbreak before it ends according its normal schedule. 60%
7. Boston Marathon, Chicago Marathon, NYC Marathon, London Marathon live events (at least in their traditional format with full participation) will all be cancelled in 2020: 70%
8. Events of more than 1,000 people will be generally prohibited for at least six of the remaining eight months in the US in 2020. 80%
9. The percent positive for testing in the United States will not be below 5% for more than three months on average in 2020. 60%
10. Colorado will have fewer than 100,000 confirmed cases of COVID-19 by year-end 2020. 70%
11. No more high school sports (specifically, track, football, cross country) in Colorado in 2020. 50%
12. Dow Jones Industrial Average is lower at year end than it is at close on April 7, 2020. 80%
13. Dow Jones Industrial Average is more than 20% lower at year end than it is at close on April 7, 2020. 50%
14. More people die in Europe of COVID-19 in 2020 than in Africa: 80%
15. In addition to the current period of lock down happening right now, there will be at least one more period of lock down, where at least 10-plus US states decree stay-at-home orders. 60%.
16. US economy will shrink by more than 10% in Q2 2020. 70%
17. The recovery from that decline will look more like a square root shape than V-shaped recovery. 80%
18. Government SBA loan program created as part of CARES ACT 2020 will generally be considered a governmental failure on Dec 31, 2020 (vague but I’m pretty confident here). 80%
19. The United States will not have an effective track-and-trace program in place, or an equivalent, by year-end 2020. 60%
20. The US still holds a general election by some means in November 2020. 80%.
21. Donald Trump’s popularity will be higher, according to 538, on Oct. 31, 2020 than it was on Feb. 29, 2020. 70%
22. Donald Trump will be re-elected in 2020. 60%

Enjoying the Emergency

Dainan Kaitigiri once said:

Every moment of every day is an emergency. You have to do your best to face every moment, because this moment will never come again. The moment that you are living right now is a very important opportunity to make your life vividly alive. If you want to live with spiritual security in the midst of constant change, you have to burn the flame of your life force in everything you do. (emphasis added)

I read that quote last year and I wrote it down. I have a calendar system where the quote appears in my workflow a few times every week. Every time I read it, I try to pause and appreciate exactly what it means.

I have always tried to stress the importance of each instant, but of course, like everyone else, sometimes I take things for granted.

Thinking of that quote, I try to force myself to focus my attention on the present, whether the present is positive, a negative, or neutral.

It’s easier said than done.

I’ve been thinking of that quote a lot lately, if only because my life has included a good number of what people more conventionally think of as emergencies.

To wit, in the past two months:

-My wife, seven months present, was a t-boned in our new car, driver-side. The car was totaled, and she was taken to the emergency room and released about five hours later.
-Two days later, my wife was readmitted to the emergency room in Denver with pregnancy-related complications. She had to stay there for the weekend.
-Our family was forced to temporarily relocate from Salida to Denver.
-Three more times in February, she was readmitted to the hospital and twice more had to stay overnight for extended stays.
-Eventually, because of those complications, on 2/27/2020, she had to have an urgent C-section.
-Our first child was born that day, 36 days premature.
-Our baby spent the first 16 days of his life in the NICU.
-Around the same time, global pandemic engulfed the world.
-In the last few days, my father came down with coronavirus symptoms.
-Yesterday, one of our dogs was given a terminal cancer diagnosis.

That’s a lot of emergencies for less than two months.

I’d be lying if I said I handled them all with equanimity and grace. I’ve lost my cool quite a few times this month.

And I certainly won’t pretend that I have enjoyed every minute of it.

If I had my preference, I wouldn’t have asked for any of these things. But they happened anyway.

So it goes.

Life might never return to normal again, you know. And perhaps what we’d like to think of as normal, namely, the status quo before global pandemic engulfed the planet, isn’t really normal, after all. Maybe that was a cosmic glitch. And wishing for it back won’t make it come back again.

All moments in time require billions or trillions or kajillions of different variables to align for the moment to be exactly as it is. Each subsequent moment, things change and those variables never will align the same way again. When the changes are slight or moderate, it’s easy enough to go through life and not notice the many ways that things change. But change they do and change they must.

Sometimes, it’s impossible not to notice the changes, like now.

There’s a great danger in “waiting out” an emergency, because you never know how long an emergency will last. Sometimes, such as during the hundred years war or the dark ages or during the bubonic plague, emergencies consumed entire lifetimes.

In those emergencies, if someone had tried to wait out the emergency in hopes for a better time, they would have missed their whole life.

Here’s another great quote:

Before something happens, it is not our way to worry about it too much. In that way, we maintain complete calmness of mind.

That one’s from Shunryu Suzuki.

Whatever the next emergency in your life might be, I’m pretty sure it won’t be lack of toilet paper.

In my calmer and wiser moments, I try to appreciate every moment, with all of its impermanence and changes, even when it’s not pleasant. Even when it’s super unpleasant or terrifying.

Because each scary moment is like a thunderstorm. You can yell or blame or curse at it all you want, but the thunderstorm can’t be wished away. You can worry about how bad it will get or tremble about whether lightning will land on your head or on your house.

Maybe it will, maybe it won’t.

Or you can appreciate the beauty of the rain as it falls to the ground; the majesty of the clouds as they rush through the sky. Maybe there will be a rainbow after it’s all done. Probably not. But there will almost certainly be that rich, musty smell that feels so full of life.

Maybe you’ll notice it, maybe you won’t.

It’s easy to let fear swallow the whole moment in an emergency.

Sometimes fear doesn’t leave much room for anything else. That’s unfortunate, because there’s always other stuff going on, if you pay attention.

You and I will die.

But I suspect that no one reading this blog will die of coronavirus (thank heavens for my small readership). We will likely die from something else.

But some day we will die. Maybe we’ll know it’s about to happen, and that moment will very much feel like an emergency, just like this moment also feels like a horrible emergency for so many of us right now. But probably worse.

Perhaps best to practice now, when we’re probably not in our final moments. To use this moment as emergency practice. So that when the final moments come, whether 10 hours or days or years or decades from now, we might not let fear consume us in that moment.

Moneyball for Presidents (Or, Why We Should Nominate 23-Year-Olds to the Supreme Court)

The way we approach presidential elections is totally bewildering to me. Each candidate proposes a series of policies that they might like to enact if they were in charge of the country. People latch on to those proposed policy ideas and embrace or reject them, and thus the candidates who propose them.

But this approach bears no resemblance to the actual duties and responsibilities of the office. Presidents are not enlightened despots with total control over policy; they’re heads of the executive branch, with certain limited and enumerated duties and responsibilities.

Stated more clearly: Presidents aren’t in charge of policy. Congress is in charge of policy (and they totally suck at it). 

Why do we elect Presidents as if policy was their main job, when a precocious 12-year-old with a pocket constitution could easily understand that it is not?



As Robin Hanson might say, politics isn’t about policy.

This isn’t to say that the presidency doesn’t matter. The presidency absolutely does matter. Just not as much for express policy reasons as people seem to want to think.

Here are some of the things presidents actually do, as explained by the Constitution and summarized by dummies.com:

  • Setting foreign policy: The president sets foreign policy of the United States and has authority, “by and with the consent of the Senate” (as indicated by the concurrence of two-thirds of the Senators present), to make treaties.
  • Appointing key personnel: Subject to Senate confirmation, the president appoints ambassadors, federal judges, and “all other Officers of the United States.”
  • Pardoning felons: The president also can choose to pardon felons, or even to preemptively pardon people who have not been convicted of any crime.
  • Vetoing legislation: Presidents also have the power to veto legislation, which requires a 2/3rds majority to override in both the Senate and the House.

Focusing on just those bullet points, you could easily effect major change as president, even if not a single item of legislation was passed during your tenure in office.

In my opinion, nothing a US President does matters more than whom they nominate to federal courts.

Presidents today, under the Constitution, cannot remain office more than 8 years. Clarence Thomas, currently the longest-tenured member of the US Supreme Court, could ultimately remain in his position 5-6 times that long. George HW Bush, the man who nominated him to the Court, is dead and gone. Even before he had died in 2018, his actual influence had long since waned. But his legacy lives on, and will continue to live on, through critical binding legal precedents enacted by Clarence Thomas.


This is also the strongest counterargument I know to the now-common Democratic argument that, “if my preferred candidate isn’t elected, then I’m not going to vote for a Democrat.”

Maybe you’re a progressive and you didn’t love Hilary Clinton. I can understand that. This was a common refrain a few years ago. But if she were elected president, instead of Trump, she would have nominated 250 federal judges with at least moderately progressive tendencies, and those 250 federal judges would have had an average tenure of around 25 years. That’s a stark contrast to what we can expect from the 250 or so federal judges appointed by Trump. That matters to environmental policy; that matters when lawyers bring cases of discrimination and harassment before those judges; that matters in a million other ways that matter, on issues big and small.

Maybe you’re a progressive and you hate Bill Clinton, too. That’s fine. Do you hate Ruth Bader Ginsburg? Of course not. No self-respecting progressive has a bad word to say about her. But alas, it was a Clinton who nominated her to the Supreme Court.

When Ruth Bader Ginsburg was nominated to the Supreme Court, she was already 60 years old. She started her tenure on the most important Court in the world around the same time most people are taking steps to retire from their jobs for life.

Nothing against RBG, but this was a wasted opportunity. Instead of nominating RBG, Clinton should have been looking to find the 23-year-old equivalent of RBG, and instead, appoint her to the Supreme Court.

If he had appointed a 23-year-old to that job then, that person would now be turning 50 this year, instead of 87. And that person would have the capacity to influence another three to four more decades worth of legal precedents. Three to four more additional decades of influence!

Now, if RBG passes away when Trump’s still in office, that influence will swing in a conservative direction, most likely for the next 30 or so years.

You can’t become US President if you’re under 35. You can’t be in the Senate if you’re less than 30. No admission to the House if you’re under 25. But there are no minimum age requirements to be a federal judge—even though it’s the only job that entails a lifetime appointment.

That seems like a glaring omission by the drafters of the Constitution. But even a more glaring omission: why has no one tried to exploit this yet?

If I were the president, I would hire the smartest young law school graduate who was ideologically aligned with me, had 4 living grandparents, had healthy habits, and who had a history of good health. Instead of influencing the law for 20-30 years, my nominee would likely influence the direction of the country for 60-70 years.

RBG shouldn’t have been appointed the Supreme Court by Bill Clinton. She should have been appointed by JFK.

The other party would scream bloody murder, of course. But given how polarized politics already is now, the other party is probably going to scream bloody murder regardless. Democrats all loathed Brett Kavanagh. Would it have made any difference if he was 23?

Certainly, there are tradeoffs to nominating a 23-year-old to Supreme Court. But the most obvious criticism, lack of experience, probably wouldn’t matter that much. Right now, kids straight out of law school are already writing Supreme Court opinions as law clerks. These young men and women are often hired straight out of law school to do the bulk of the legal research and writing for judicial opinions. Depending on the judge, sometimes a clerk might direct the writing and the opinion itself.

If we brought these young men and women in as actual judges, as opposed to just clerks, there are things we could do to minimize the impact of their inexperience or naivete. Instead of hiring another law clerk straight out of law school, a 23-year-old member of the Supreme Court could likely hire an experienced federal court judge to assist them as a law clerk instead. There’s nothing in the law to prevent this, and the prestige of the position would probably be mutually beneficial. Between the experience of the federal judge serving as a clerk and the initiative and intelligence of the baby judge, the actual quality of legal work would likely be little affected by the change.


Why is not a matter of public record whom every presidential candidate would plan to nominate as a Supreme Court judge if elected? It’s such an important decision, it’s such a simple question, and the answer is totally knowable by each candidate. Why is this not talked about more?

Again, the only explanation I can think of is that politics isn’t about the substance, but rather about identity and mood affiliation.

The biggest risk of nominating a 23-year-old to become a federal judge, in my estimation, is the risk that the young woman or man might change ideologically over time. People are much more likely to undergo meaningful ideological changes between 23 and 50, compared to the ages of 50 and 87. Nominate a conservative, red-meat-eating Christian who later adopts a vegetarian, agnostic, left-leaning lifestyle, and you will have empowered a political enemy for generations. Oops!

Also, our children’s generation might resent that we’ve stacked the federal courts with judges not of their choosing. But the way we’re running things, that might not even make the list of their biggest complaints.

Creating Space

One underrated skill is that of creating space. And by that, I mean creating blocks of emptiness in our lives. These can be in the form of time, attention, mental activity, or even actual, physical space.

I’m sure that sounds abstract.

Let me give a couple of examples. Imagine you’re waiting in line at the post office. Most people’s natural reaction in 2020 is to take out their phone and fill that time with something—the score in some game. Updates on Facebook or Twitter. News. It doesn’t really matter what—just something.

Another is with the mind. Most people’s minds are always spinning about something. Some project at work. A conversation with a coworker where we wished we would have said something other than what we actually said. Worries about whether we’re saving enough for retirement. Regrets about things we did years ago.

When was the last time you were thinking about nothing? Or, stated another way, when was the last time you were fully focused on what was happening in this very moment?

It’s getting harder to create spaces in our lives.

Many of the most profitable businesses owe much of their success to the ingenious ways in which they eliminate these spaces. Twitter and Facebook are essentially that—little morsels of stimulus, developed from our social networks, algorithmically designed by teams of the smartest people on the planet to capture our attention and then keep it for the maximum time possible. With Netflix today, if we don’t have the remote control in our hands to affirmatively stop it from doing so within five seconds, the next episode of whatever we’re watching will begin immediately after the last episodes ends. On nearly every for-profit site on the internet, paid or internal links with headlines that have been scientifically tested to smithereens scream for our attention at the end of every article we read. YouTube videos are like Doritos. They’re designed so that once you start, it’s very hard to stop.

We’re in the midst of an evolutionary arms race to consume all the free moments of our lives.

Companies aren’t making these products so addictive because they’re evil. They’re doing it because that’s what businesses do—create products that people will consume. And we use them because we want to use them. Or, at least, it’s what we think we want in those moments.

Throughout most of my life, I’ve had a bit of a temper. One of the things I’ve been working on in recent years, is just creating a space in between the things that have traditionally caused me to lose my temper, and my reactions to those things when I lose my temper.

I like to think of it in these terms: stimulus (space) response. Some stimulus triggers something that makes me want to get upset. This may happen 10 or 50 or 100 times a day. But if I can create enough space in between the things that cause me to lose my temper, and my responses, I usually can avoid losing my temper.

I now keep track of how often I lose my temper. I 2010, I probably lost my temper an average of 10 times a day (I didn’t track it then). In traffic, watching a basketball game, with my loved ones.

In 2020, as of today, I have lost my temper twice (knock on wood).

There’s a danger in talking about meditation—perhaps in selling the practice of meditation—of talking about it as a means to an end. You meditate because it improves your concentration, it gives you a sense of peace, or it reduces your anxiety. And if you can improve your concentration or reduce your anxiety, you can do well at your job, or maybe start a new and successful company. If you can do those things, perhaps you can get more money, power, or status.

I think of this as the Silicon Valley version of meditation—meditate, because if you do, you’ll get more and better stuff.

But, at least to me, this is the exact opposite of a healthy meditation practice. To me, by developing a healthy meditation practice, one becomes (or at least aspires to become) liberated from any need for stuff –whether it’s in the form of material things or even life experiences–to maintain a sense of peace or well-being.

By creating space in our lives, we remove the stuff from our lives, and strip life down to life itself. Life’s not about the information we consume. Life’s not about the things we have to do. Life’s not about the things we use to identify ourselves. Life is about life itself.

In a sense, creating space is all that meditation is. You have a million things to do every day. I have a million things to do every day.

In spite of that, we can choose to delay doing more stuff, to short-circuit the non-stop leaning of our lives from one activity into the next one, by doing nothing for some period of time.

At its core, that’s what meditation is—doing nothing, even though we know there are many things we could be doing. When we meditate, we will, at least at first, think about those things we should be doing. But as we practice more, we can put space into between those thoughts as well. And then, perhaps, over time, those thoughts will become less frequent. Or maybe we can pause them altogether.

I suck at creating physical space for myself. I am cluttered. I am messy. I am disorganized.

When I stayed briefly at Eiheiji, the original monastery of Zen Buddhism, in Japan, perhaps what struck me most about that experience that was how uncluttered their spaces were. My wife and I’s room was just an empty space with two mattresses on the floor, and a table, with no chairs. There were two books about Zen on the table for me and my wife. There was absolutely nothing else in the room.

First, I will fix my temper. Then, I will become uncluttered.

Creating spaces is about insisting that this moment matters. That this moment is valuable in-and-of-itself. Not because we can learn something that will make us successful or rich. Not because it gives us time to do one more thing. But because it is there. Simply because it exists and we are conscious of it at this moment in time.

Yesterday, you were 18 years old. Today, you are 42 years old. Tomorrow, you will be 80 years old. Or, you will be dead.

There were a million things you had to do when you were 18 that you thought were important then but now seem trivial. There are million things you have to do today that will seem trivial in a few years.

When we are dying, all of it will seem trivial.

Perhaps that is the most compelling reason why creating space in our lives is worth our time.

2020 Predictions

National and International Affairs

  • There will be no recession in 2020 in the United States. 90%
  • The Federal Reserve in the United States does not raise interest rates more than twice. 70%
  • Brexit (invocation of Article 50 or something similar) will actually happen in 2020. 50%.
  • Donald Trump will be re-elected president. 60%
  • There will NOT be any military conflict that results in more than 1000 dead persons in the American military. 80%
  • There will be no retaliation from Iran that results in more than 1000 dead American civilians. 80%
  • Joe Biden will be the Democratic nominee for president. 60%
  • There will NOT be a contested Democratic convention (no candidate will achieve a majority of elected delegates by the time the convention takes place) 70%
  • Other than the UK, no other nation will leave the EU. 90%
  • Jair Bolsonaro will still be President of Brazil on January 1, 2021. 90%
  • John Hickenlooper will be elected Senator in Colorado in 2020. 70%
  • Maduro is still ostensibly in charge in Venezuela at year’s end. 70%
  • Roe vs. Wade will not be overturned in substance in 2020, despite the conservative direction of the Supreme Court. 90%
  • The S&P 500 will be higher at year-end 2020 than it is at the beginning of the year. 60%
  • The S&P 500 index will NOT be more than 20% lower than it is at the beginning of the year. 80%

Personal

  • I will publish more blogs in 2020 on this site than I did in 2019. 70%
  • I will publish more blogs in 2020 on my professional sites than I did in 2019.
  • I will publish some content on some site other than my personal & professional blogs in 2020. 60%
  • I’ll get top 3 in my age group in the Bolder Boulder. 70%
  • I will finish on the masters’ podium at the Pikes Ascent. 60%
  • I will finish on the masters’ podium (or top 3 in my designated age group) in the majority of races I run in 2019. 90%
  • I will run a sub-5 minute mile in 2020. 60%
  • I will NOT drink alcohol in 2020. 90%
  • My law firm will still have only two full-time attorneys as of January 1, 2021. 80%.
  • I will NOT be active on social media at year-end 2020 (defined as using any social media platform more than once a week for three months). 60%

Sports and Trivia

  • FC Barcelona will win La Liga in 2019. 50%
  • Real Madrid will NOT win the champions league in 2019. 90%
  • Duke will NOT win the NCAA basketball championship. 90%
  • The Los Angeles Lakers will NOT win the NBA championship in 2020 60%
  • The Milwaukee Bucks will NOT win the NBA championship in 2020 70%
  • The Denver Nuggets will make the playoffs this year. 95%
  • The Denver Nuggets will NOT win a playoff series this year. 60%
  • Americans will NOT win more than four medals in distance races at this year’s Olympics (defined as men’s & women’s 1500, 5000, 10,000, steeplechase, marathon).
  • Americans will win a medal in the men’s and the women’s 800 meters in the Olympics this year. 60%
  • No Irish person will win a track medal. 90%

New rules for predictions:

  • Since this is just entertainment, I can update this post any time before the end of March, whenever I think of something that strikes me as worth estimating
  • Once I post, I can’t update the odds based on new information
  • I’ll only make predictions for uncertain events in the future (no predicting Super Bowl results in March)

Scoring My 2019 Predictions

At the beginning of 2019 I made some predictions. Time to score myself to see how I did. If it’s crossed through, that means it ended up wrong.

2019 Predictions

  • There will be no recession in 2019 in the United States. 80%
  • Rather than a full Brexit, the UK and the EU will agree to some version of a “punt,” that allows the parties to delay the invocation of Article 50 to leave the EU. 60%.
  • If the UK does not agree to punt on Brexit, the country will have at least one quarter of negative GDP in 2019. 60% (N/A)
  • There will no major antitrust action in the United States against Facebook, Google, or Amazon. 90%
  • There will be no major legislation in the United States that will substantially limit the growth or business prospects of Facebook, Google, or Amazon. 80%
  • Donald Trump will not be impeached in 2018. 80%
  • Donald Trump will still be president on January 1st, 2020. 95%
  • The Chevronstandard for deference to administrative agency interpretations of law will be substantially revised or overturned by the Supreme Court in 2019. 60%
  • Other than the UK, no other nation will leave the EU. 90%
  • The “gilets jaunes” will still be active (more than one public protest per month) throughout 2019. 70%
  • The Mueller investigation will be finished by January 1, 2020. 60%
  • Jair Bolsonaro will still be President of Brazil on January 1, 2020. 90%
  • Current Colorado governor John Hickenlooper will announce that he is running for president in 2019. 70%
  • Brett Kavanagh will not be impeached in 2019. 95%
  • Roe vs. Wadewill not be overturned in substance in 2019, despite the conservative direction of the Supreme Court. 90%
  • Public hullabaloo notwithstanding, Facebook will have more active monthly users on January 1, 2020 than it does now. 80%
  • The government shutdown will still be ongoing on March 1, 2019. 50%
  • Trump’s approval rating will be below 45% on January 1, 2020 (538). 80% (42.2%)
  • Trump’s approval rating will NOT be below 40% on January 1, 2020. 60%
  • The S&P 500 will be higher at year-end 2019 than it is at the beginning of the year. 60%
  • The S&P 500 index will NOT be more than 20% lower than it is at the beginning of the year. 70%

Personal

  • This blog will have at least 12 posts in 2019. 80%
  • It will have more traffic in 2019 than in 2018. 60%
  • I will launch my new tech law policy blog in 2019. 90%
  • My tech law policy blog will feature at least 12 posts in 2019. 75%.
  • My new tech policy blog will have more traffic than this blog in 2019. 50%.
  • My law firm blog will feature at least 6 posts in 2019. 60%.
  • My law firm will still have only two full-time attorneys as of January 1, 2020. 80%.
  • At least one other attorney will work at least 50 hours for our firm in 2019. 50%
  • I will average at least one hour a day of meditation this year. 80%
  • I will go to at least one meditation retreat this year. 70%
  • I will do at least 1000 hours of “deep work” this year. 50%
  • I will spend at least 250 hours writing this year. 60%
  • I will win at least one race in 2019. 60%
  • I will finish on the masters podium in the majority of races I run in 2019. 80%
  • I will finish at least one ultramarathon in 2019. 50%
  • I will get at least one lifetime PR in one of the following distances: 10k, half marathon, or marathon. 50%
  • I will run faster than a 2:20 800m in 2019. 60%
  • I will NOT run faster than 2:15 in the 800m in 2019. 70%
  • I will run NOT faster than 17:30 in a 5k this year 70%
  • I will finish on the masters’ podium at the Pikes Peak Ascent. 50%
  • I will skimo at least once in 2019. 70%
  • I will buy skimo gear in 2019. 50%
  • I will not drink alcohol in 2019. 90%
  • I will finish at least one law review article in 2019. 50%
  • I will publish at least 2 articles in publications other than my own blogs in 2019. 60%
  • I will be capable of having at least one conversation that lasts a minute or longer in Japanese when I travel there in March. 50%

Sports and Trivia

  • FC Barcelona will win La Liga in 2019. 80%
  • Real Madrid will NOT win the champions league in 2019. 90%
  • Alabama will win the NCAA football championship. 60%
  • Duke will NOT win the NCAA basketball championship. 70%
  • The Golden State Warriors will win the NBA championship. 60%
  • The Denver Nuggets will make the playoffs this year. 95%
  • The Denver Nuggets will win at least one playoff series this year. 50%
  • The New England Patriots will NOT win the Super Bowl. 80%
  • There will NOT be more than 20 new tiny houses built in Salida in 2019, despite the various announcements of proposed tiny home communities. 80%

Overall conclusions:

Despite not following politics very closely, I got very few wrong in national and international affairs.

On the personal side, I horribly overestimated my own productivity, and I was thrown off in my running predictions by having a badly broken leg early in the year. But really, where I was most off was in expecting to write more than I did. I just prioritized other things this year.

I would not have beaten Vegas in my sports predictions. Meh.

Here’s the end-of-year calibration.

95% – 3 of 3; 100% (slightly underconfident)

90% – 7 of 7; 100% (slightly underconfident)

80% – 9 of 12; 75% (slightly overconfident)

70% – 6 of 8; 75% (slightly underconfident)

60% – 7 of 13; 54% (slightly overconfident)

50% – 3 of 9; 33% (overconfident)

In terms of general weaknesses in my predictions, perhaps most of my 90% predictions were actually more like situations with 99% odds, and my 50% predictions were situations with 33% odds. Or maybe that’s just some randomness, since I didn’t make that many predictions.

On the whole, I think I did pretty well for a first attempt. I might try it again this year.

The Pleasantness of Preference-Less-Ness

Most self-help books are built around the premise that we should change who we are so that we can get what we want.

And the implicit message behind those self-help philosophies is that getting what we want is a good thing.

But what if that’s wrong? What if getting what we want has been consistently shown to be ineffective at making us happier?

***

Most people are stuck in the problem of, “how do I get what I want?” their whole lives. As a baby, life’s about getting burped, fed, held, and changed. As an adolescent, life’s about becoming cool to your peers, finding a mate, getting good grades, and fitting in. As an adult, life’s about getting money and status. And on and on.

We spend our whole lives living like a greyhound chasing a fake rabbit around a track.

But what happens when we get what we want? What then? As soon as the brief feeling of gratification wears off, it’s just back to life again.

Back to the track to chase another fake rabbit.

***

To me, the most impressive people aren’t the ones who always get what they want. It’s the ones who know that getting what they want isn’t what matters.

***

There are few people more successful than Michael Jordan. He’s the consensus pick for the best basketball player ever. He won six NBA championships and five MVP awards. There are few people who have ever succeeded more, against more elevated competition, on the biggest stages, in American sports history.

About a decade ago, he was inducted to the Hall of Fame. I invite you to read his speech. After all that success, he was still desperate to prove himself. He still seemed bitter and resentful to those who didn’t respect him enough, even though he’d received as much public adulation as anyone alive.

If success made a human being happy, if getting what you wanted was a panacea for human suffering, then Michael Jordan would be among the happiest men alive. But he’s not.

***

If there was any person on earth who was more famous than Michael Jordan in 1992, perhaps it was Michael Jackson. He was so popular, from the early 80s to the mid-90s, everywhere he went, huge throngs of people would scream in his general direction, driving themselves into a bizarre, idol-worshipping, hysterical Bacchanalian trance because they were merely in his presence.

30 years on, it appears that what he really wanted in life was to have sex with pre-pubescent boys.

He died in June 2009 of a prescription drug overdose. He was trapped by the false belief that avoiding pain was possible—that with money, with fame, and with power, you could spend your whole life trying to pursue positive affectation and always avoid the negative ones.

He died in that pursuit.

***

Elvis died from a drug overdose, in a pool of vomit, lying on his bathroom floor. Almost certainly trapped in the exact same fruitless pursuit.

***

I spent the better part of my 20s and early 30s obsessing over my preferences. I tried to cultivate knowledge of the best music, the best food, the best wine, and the finest life had to offer. I read thousands of books, searching for the best information life had on offer.

I spent a small fortune and who knows how much time pursuing these things.

Perhaps David Chapman would call this “the false stance of materialism.” And maybe that was part of it. But in my defense, I wasn’t just pursuing stuff, or material objects, I was pursuing “deeper” experiences. I knew that buying a fancy car wouldn’t make me happier, but I thought that pursuing a life with some different characteristics just might.

But in retrospect, the whole endeavor feels like a lost couple of decades. Pursuing a world of elevated preferences was just a more expensive and time-consuming form of hedonic trap.

***

We elevate those who have what we think we want: Warren Buffett, Michael Jordan, Elon Musk. Money, status, and power. But underneath the veneer of status, what’s below? Different versions of the same problems we have.

Rather than idolizing the powerful, perhaps there are other traits worth revering.

Perhaps a better indicator of person’s character is how we deal with life when things don’t work out in the ways we want. How we deal when the temperature is too warm or too cold. When there are mosquitoes. When there is a delay. When there is sickness. When there is death. When life gets inconvenient, and when it gets downright awful.

Perhaps it is those who learn to appreciate life’s wide range of experiences, rather than always trying to cultivate the most elevated ones, who have the capacity to live well.

Because sooner or later, these things come for all of us. In various forms and at various times. In ways we might expect and in ways we could never expect.