A nice piece in the Wall Street Journal is effective advertising by Niall Ferguson for his latest book. It scarcely mentions The Great Degeneration: How Institutions Decay and Economies Die but as a teaser conveys a sense that the issues are important.

The crispness of Ferguson's analysis of the West's dependence culture, together with re-reading last night  Vietnam helicopter pilot Mason's classic "Chickenhawk",  put Ferguson's book on my must-get list.

Chickenhawk highlighted the effectiveness of the Viet Cong and North Vietnamese (and the tough ROK troops' on the anti-communist side in Vietnam), and contrasted it with the lack of equivalent mental toughness of the troops and people who lost despite superior technology. It set me  worrying about just the issues which I understand Ferguson covers in his book.

The Wellington Mayor’s public acceptance that light rail is dead for Wellington is a step forward. So much better than Len Brown’s dogged pursuit of the underground train set, when faced with similar damning economics.
If only she had been able to confine her Plan B to stipulating for noise, energy efficiency and other parameters for buses. Instead she is painting herself into the electric corner. Why tell a businesses how to achieve objectives when you are not an expert, and the implementation is so far out we cannot know which is the best.
We are already bearing the costs of foolish affection for trolley buses, in wasted capital costs ($7m more than for better, flexible, comfortable, efficient new diesels) maintenance, and downtime on the streets.
Still, I think we are likely to see a brief era of comparative rationality here on transport, because the current generation of clerics in our council have had some education about the uncomfortable gap between wishful rhetoric, and reality, in transport economics.

I think there is a good chance ANZ will  lose to the class action promoters. That will not be the best outcome for bank customers generally, but the banks have largely themselves to blame.

Early in my commercial law career I was a banking law specialist. I liked it partly because I got to present papers to banking law conferences. They were memorably held in places like Surfer's Paradise and Adelaide Casino. I could take Cathy (and infants) so I could redeem some of the debits building up in my matrimonial account from working enormous hours.

But I also liked banking law because it was mostly still the work of great judges and law drafters of the 19th century. It was certain, very sensible and clear.

Rob Ogilvie also has deep in his CV lots of lending documentation, enforcement, standard form design, unit trust formation and seminar presentations to bank staff. So Franks & Ogilvie has kept up our interest in the field, though the law is now encrusted with complications created by recent decades' less perspicacious lawyers.

The foundation of the action against ANZ is a general contract law principle, not a specific banking law matter. It claims that the banks have been penalising unauthorised overdrafts and other breaches of contract, instead of just charging what they have cost the bank to deal with. I think the action is more likely than not to succeed because our law has always been against penalties in contracts. You can agree in advance on what happens if a contract is breached, if it is a genuine pre-estimate of the likely costs of fixing the breach. But if it is just a penalty, ancient law says that provision is not enforceable.

It is actually an  inefficient rule that probably costs consumers more than it saves them. Penalties are a standardised disincentive. The cost of handling thousands or millions of actual calculations of what an overdraft limit breach might actually cost the bank could be huge. And in the long run such costs become part of the overhead that is charged to everyone, those who do not breach as well as those who do.

If the banks and the country's business organisations had been investing in getting the law up-to-date and efficient, they would have had a firm like ours draft and promote a sensible change to that law years ago. Now they'll spend millions on a court case, instead of the fraction of that they could have spent on a stitch in time.

Iona Pannett has a licked in constituency of supporters – dog owners. Her willingness to tackle and moderate the original WCC hard line against dogs in the city, even on leashes, has secured her some long term support from across usual political division lines.

She has also been a reliable advocate for more exercise areas where dogs can run free (off their leads).

I've always felt sad seeing poor leashed dogs trailing their people, or dragging them along. The real joy of walking a dog is in sharing its delight.  From the time the dog goes into whirling and dancing at the word "walk", through to off-the-leash area running in ecstatic circles, until she gets home to tell the other members of the household just how exciting it all was out there, one shares the vicarious intensity of the dog world. We can appreciate the possibility of a cat or possum to chase behind the next tree or bank. We can sense the adrenaline rush of surviving stranger-danger (the stiff-legged approach of the monster unknown dog). We may never know just what the world of scents means, as trees, posts, clumps of grass, and other dogs (and humans) are sniffed. But we can tell it is enormously satisfying to know more about the world. A walk seems to be the National Geographic Channel, and the History and Discovery Channels and a good book and some web surfing all rolled into one.

As we 'exercise the dog' we can know we are granting and delivering pleasure.

And now we can be more confident that the pleasure is similar to ours, just as our anthropomorphizing has always told us. There is science to support the human-like joy in running free, and the worry that dogs never off  leads are suffering more than humiliation.

When deprived of the chance to really stretch out and run, they are missing the same highs that humans miss when they let themselves become sedentary. Dogs get from exercise the pleasures our couch potatoes try to replace with chocolate and other stimulants.

The research explains that frantic excitement when a run is mentioned and the deep sulking that accompanies an outing aborted, or worse, when the dogs are left behind. So lets hope that there are more of Iona's tribe in the next Council. Perhaps Gareth Morgan's anti-cat supporters can make a strategic alliance with Iona Pannett.

Judges and lawyers should be shamed by NBR's behind the paywall story today about Barry Hart overcharging a widow four times what the Law Society says was a fair fee, and not paying the $55k to be refunded.  Hart has made a long-running spectacle of the law as he has defied his mortagees, clients and disciplinary procedures to postpone effective enforcement.

The pathetic impotence of the courts in the face of exploitation of protective procedure makes them look like accomplices. In fact they (and Hart's creditors) are victims of collective legal funk, and judicial incompetence at pruning legal process excesses. Leading judges have been unwilling to cut through the mess created by 'natural justice'. As a trump card it has freed judges and lawyers from having to sacrifice their perfectionism, and from subjecting what they do to the normal disciplines (for everyone else) of constrained resources and time.

They could have clung to the overwhelming importance of what they do, if they had been prepared to compensate with simple measures to balance asymetric incentives. For example, there is no need to sacrifice valuable protections of rights, as long as it is clear that those who are found to have exploited them, or made the processes needlessly expensive, are stung with correspondingly more severe outcomes when it is all over.

The Hart shame sits together with the hilarious tangle Messrs Orlov and Deliu have managed to create in Auckland, as disciplinary procedures bog down in a mire of cross complaints and technical challenges. A decade or so earlier Russell McVeagh saw off the Auckland District Law Society's investigation of their shameful horse dealings with clients, because the Society could not afford to throw more money after the millions it spent trying to get past the procedural and jurisdictional skirmishing stages.

Lawyers squealing now (justifiably to some extent) over changes imposed by the Justice Department and Parliament in procedural areas and in legal aid, are paying the price for a lack of leadership and imagination at senior judicial levels, to head off the necessity for more crude reforms.

I foresee an extended time of Parliamentary 'intrusion' on matters that have been left to lawyers and judges, including an unapologetic push-back on judicial review over-reach, because my profession has forfeited its right to cleanse its own house.

[Sunday – Messrs Deliu and Orlov have contacted me to complain about being compared to Mr Hart. I think they are over-sensitive – the opinion that their matters "sit together" with other disciplinary processes that seem interminable, does not prejudge the outcome. I doubt that anyone thinks they are like the greedy Mr Hart, or that anything of which they are accused would be in the same moral territory.

The point is that judges and lawyers are tangled up in the same snares that have made disciplinary proceedings for everyone else a hideously expensive nightmare (employers, professions, schools included) and have been even less adept at getting out of their self-set traps. All lawyers should be embarrassed by the profession's inability to bring these things to conclusion in any timely  way.  It may be some sour consolation to the employers who've suffered the second guessing of employment law that puts foolish process ahead of substantive merits and distressing precedent's effect on future conduct.

Mr Orlov believes he is fighting corruption among lawyers and alleges it against judges. On pressing for what he means by that term he did not describe anything I would describe in that way. He thinks that judges and other lawyers are "twisting the law" to get him stopped from fighting for free speech, and for the rights of the oppressed. He claimed that this blog described him as 'farcical'. From my conversation I'm concerned that he may not share an essential commitment of lawyers to the precise use of language.]

Kathryn Ryan on Nine to Noon this morning followed up the constitutional issues raised by my firm's recent opinion work for the Green Party.

I thought her questions nailed the issues.  Whether the Sky City deal is good or bad is not material, and I did not opine on that. Nor does the opinion suggest that there has been any dishonesty by anyone.

As a lawyer and as a citizen I believe in the advantages of an 'organic' constitution. But it makes the slippery slope steeper. If the government seems oblivious to stacking up bad precedents constitutionally  that could build support for unfortunate constitutional tinkering after Prof Burrow's review group reports.

 Our constitution relies on conventions and respect for written and unwritten rules that constitute behavioural bottom lines. High quality Ministers in the Lange government built good fences against crony capitalism – developing a strong sense of shared understanding of what is, and is not, done around here. It became easy to distinguish New Zealand from countries as similar as Australia, because of the lack of return for businesses seeking political favours. Corruption became practically unthinkable.

Now it is not clear where the bottom lines are the next deal could go further. The next SkyCity type counter party would be a mug if it does not push or test officials and the government to see how far they might go in giving private concessions no-one can really value.  What was unthinkable has become worth testing.

Even if it is the best deal for the purpose of getting the convention centre built, corrosion of those protective expectations is collateral damage.

Unfortunately the Warner Bros Hobbit deal contributes to that concern. To a constitutional lawyer that would not have been at all reprehensible, except for confining the benefit of the law changes to the industry and party they did the deal with. The circumstances should have persuaded them there was a problem with the law. Competent adults should not be able to renege on independent contractor arrangements for which they are paid, by claiming to have an employee's protection from not having the contract continue. So the law change should have been of general application.

Once there is a perception that our law or political favour is for sale, there is plenty of scope for it to operate.

In the  opinion I touched on the lack of protection in our constitution against corrupt use of powers to confer privileges (and to punish financially) without Parliamentary (or court) oversight. We have good procedural protections against casual misuse of powers to tax, and to spend tax money on favourites. But there is next to no protection, for example, against vast wealth transfers by way of regulatory privilege or detriment.  That happens under the RMA, I think mostly without corruption, but  it is mainly because of habits of honesty, not structural protection if our public morality erodes.

I raised this generic risk in Parliament when the ETS regime was under debate. A corrupt Minister could make or break friends or enemies whose competitive position depended on emission credits. The first scheme gave great discretionary patronage powers to those deciding  who would get the credits supposed to protect and reward for exceptional circumstances. Even as legislated there are still few safeguards.

For the first time today I found that my fellow panelist planned to talk about the same thing as me. Dr Sapna Samant (GP) wanted to worry about the self inflicted epidemic of diabetes, and so did I.

I was wondering how academics would manage to blame responsible people for that epidemic. There is great health researcher enthusiasm for alleging huge social damage from the refusal of government to take more from the rich to give to the poor (obligation free of course). But how will they fit that to the rolling wave of fat.

Of course I do not face the daily tragedy of over-eating.  I'm surrounded by people who are growing older vigorously. Many are fitter and slimmer and look better than they did 20 years ago. They cycle and run marathons, and swim at masters games and garden and join walking groups and tramp together, or with their families.

Maybe they'll all be like controlled atmosphere apples, they'll suddenly wrinkle up and crumple. All that deferred withering, slumping puffing up with fat then shrinking will emerge suddenly. But so far, so good.

Yet all around I see evidence that they may be atypical. Diabetes, and fatness are reported at rates that look catastrophic. I see fat kids everywhere.

I've read the propaganda that ties inequality to allegedly inadequate government transfers of wealth and income.

But how will more unearned money to the badly reared and poorly educated cure shocking diets and lack of practice at deferment of gratification (in old fashioned language – self-control). If you walk out of the supermarket with coke and cakes, sugar, fat and caffeine instead of vegetables and protein, how would more free money fix that. The inequality industry folk make a lot of the allegedly unfair distribution of doctoring. How do even free doctors fix greed reinforced and cemented in by years of bad parenting?

The cartoonist Al Nisbet dared to suggest personal responsibility instead of school meals. He became the target of a great media consensus that he is awful and to be shunned and shut down if possible.

How long can we indulge the left ideologues, how many kids will be ruined, while we  wait for the "its not OK" campaign or the drunk driving ad equivalents,  targeting parents who feed fat inactive kids?

[Monday – none of the above means that I know what kind of ads would do the trick – only that in the end there may be no alternative to strengthening resolve and character, child by child. For adults perhaps it is too late for most. Cam Slater's blog refers to a sensitive piece brought to his attention by Kevin Hague]

I've just listened to Nathan Guy talking down concern about Chinese blocking of meat imports on Radio LIve Drive, before Andrew Patterson interviewed me on the topic.

My firm has paid particular attention recently to the way FTAs (Free Trade Agreements) can effectively over-ride Parliamentary sovereignty (our legal self determination).

I've acted for meat industry clients since 1980 and still do. I'm not sure how much they know of what is actually at issue. It is in the interests of all to keep this from blowing up, so neither side makes public claims or explanations that make it more embarassing to settle eventually. If the Chinese government, or some elements in it are just  telling us who holds the whip hand, no one is admitting it.

The explanation could be that simple. And because we have allowed ourselves to become dependent on their market (and, directly or indirectly their loans to the West) we'll just have to suck it up.

It is  a reminder that we should not be naïve signing agreements with the Chinese (or the Indonesians, or any number of other countries).

We will do what we say we’ll do in international agreements, because we believe in the rule of law, and doing what we’ve promised to do, mostly. I suppose we should recall John Key intimating  that it didn't matter that we'd signed up to the daft and dangerous Declaration of Rights of Indigenous People, because it would not mean anything. Michael Cullen had the wisdom to refuse to sign up to it.

We're also keenly aware that as a small country we have a strong interest in large countries adhering to rules, and not simply acting on ‘might is right’. More significantly for our long term, we’ll adhere to our agreements because once we’ve signed up, however stupidly, they have the clout to force us to do what we’ve signed up to, even if  it is then against our interests, and even if we’ve come to realise that it could continue to go mostly one way.

Many of the countries we sign deals with think promises and contracts are for complying with for so long as it works for them, and there is no shame in many countries in dorking a foreigner.

So New Zealanders are right to be wary of the deals we've been stitched into by Helen Clark and her predecessors, and the Key government’s eagerness to stitch us into more.

But we should not blame these leaders. At the bottom of all this is our weakness. This kind of thing either does not happen to Singapore or Switzerland or other strong small countries, or if it does they can wear it more easily.

Our leaders are given little choice about signing up. Our core problem is that the floating voters in our democracy keep electing people who promise to let them keep spending more than we earn, and not to make any hard choices to end living off borrowing.

So we’ll be bullied more and more by other countries because they can.

That could be turned around. But it will not while we spend most time arguing about fairness and who gets what, and boasting to ourselves about our special ingenuity and special capacities and a committment to " excellence". We are no longer valuably outstanding on any of those measures. Our creditors will be much more aware of continued pandering to personal irresponsibility and laziness and excuses for crime and non-performance.

I've managed a backpackers. I know what travellers want. I know how to make money providing the cheapest (safe) accomodation travellers can find. I filled my backpackers in St Anton am Arlberg by greeting them at the Bahnhof (railway station).

I've slept at airports. I will probably do so again. Partly because it sticks in the craw to pay $150 +  for a few hours in a hotel room (after the taxi, check in, check out and taxi back) when all I want is somewhere safe to stretch out. There are other reasons of course – you may want to stay ready for the first standby seat, or not remove your luggage from custody, or you feel safer in the airport than heading into a city you do not know.

But I'm not surprised by Christchurch airport's snottiness to customers who want to sleep until  their flight (or their tour pick-up). Instead of seeng demand as opportunity, and customers as guests, they display the snobby disdain to be expected of a "socially owned" local monopoly.

The grudging reversal of policy shows the imagination one can expect from this town of state dependents. A nearby backpackers with a captive market is a feeble answer. Why not provide Japanese style boxes for safe sleeping? What about showing the Interislander's initiative on late night sailings in renting thin self inflating mattresses, and pointing to safe corners? Why not provide a service for a change, to make some money?

Instead of complaining that some people stay up to 11 nights, what's wrong with a one or two night limit to exclude indigents? What about applying a smell test – say plainly that if people smell they will be discreetly invited to pay for a shower and if they don't pay, they can go?

Wellington Airport is not socially owned.  I've enjoyed its willingness to tweak the noses of the dreary people who usually wield collective power to suck the vibrancy out of any business they control. But its culture may not be different enough in the long run. Perhaps airports are corrupted by living off rents, and  tolls from those obliged to pass through them. They get accustomed to fat returns from charges to taxis and other users for the privilege of actually providing services.

Wellington Airport is stacking up local hostility by not progressing an extension to the runway for a city anxious about its future.

When airports are subjected to Commerce Commission price control they will all have themselves to blame.

Deborah Hill Cone in the Herald has also noted the sinister side of the Labour Justice spokesperson's beliefs on what the state should do with criminals. I posted on this earlier this month.

The  friend who drew her column to my attention says "She cannot bring herself to state the obvious, that talking about rewiring crims brains is creepy elitist nonsense (Clockwork Orange) that distracts from the things that can be done"

Perhaps, but I think she deals with the issues thoughtfully nevertheless, in a return to form on serious topics.

As we get closer to knowing the physical elements of thoughts, and even 'the soul', it may become harder (or easier) to defend notions of free will, and accordingly the useful moral distinctions between mad, bad and simply unwitting. Conscious choices and exposures over time may create synaptic patterns that predestine. That would be consistent with the intuitive wisdom of those who have long wanted to ban pornography, for example, while worrying how to prevent the precedent from opening the door to those who hate free speech.

Neuroscience may come to support long incapacitative custodial sentencing, as the only way to protect the rest of us from those who are predestined to hurt others. Or it may enable them to choose 'rewiring' instead.

That is all for the future. In the meantime we may come to attribute the 'blame' that justifies retributive justice less to the evil event, as to the preceding pattern of choices. On other words there may be a tendency to punish or control for being a 'bad person' more than for particular bad behaviour.That is effectively what the M'Naughton rules on holding drunks to account do, drawing sufficient 'mens rea' or the guilty mind from thewillingness to get drunk and therefore lose normal control. It has always been problematic in theory, though essential in practice.

The law must remain pragmatic. There are  a number of indispensable 'fallacies' without which the law just will not work. For example, everyone is deemed to know the law, though patently none could possibly now know the vast sea of rules in which we now swim. That fallacy is essential, because without it who would not claim ignorance of a law when charged.
 

So even if neuroscience makes free will shaky, we'll need to deem it. We must attribute to people responsibility for their actions, as well as the right to choose courses others think undesirable if freedom is to be defensible intellectually, and endurable in practice.