Saturday, July 26, 2008

Don't Tell Me I'm Getting Old

In a few weeks, I will walk, as I have every fall for 36 years, into a classroom full of exciting, young (did I say young?) law students, eager for knowledge. And for 37 years in a row, I will be tall, dark and handsome, weigh 165 pounds, and have a full head of black hair. The students are young. I am forever surrounded by young adults, so I remain equally young.

The neighborhood auto parts, book store, butcher, dentist, doctor, drug store, five and dime, gas station, grocery, hardware store, hobby shop, ice cream parlor, Laundromat, luncheonette, movie theatre, pet store, pharmacy, and tv repairman are gone, but I’m still here. The call box is no more, and the pay phone is following it into oblivion, but I’m as young as ever. The Surf Theatre, Busy Bee Market, and Canterbury Books are no longer in San Francisco, but then neither am I. Bowling alleys are disappearing fast, and generations will miss out on the thrills of drive-in theatres, and the downtown emporiums with their exotic merchandise.

The bars and churches have remained though. Neither has aged a day. The bars have a valuable license from the state, and the churches an eternal license from God.

The reunions have past quickly in the night: 25, 30, 35, 40 (missed that college reunion).

When I turned 40, it was as though someone took out a voodoo doll with my name on it and started sticking pins into it. I discovered muscles, joints, tendons, ligaments, and organs I never knew existed. I don’t know if it was prostatitus or prostatodynia, but the pain was excruciating either way. I leant that as men age, the prostrate gland is women’s revenge on men.

I had crowns put in on the right, and crowns on the left. My mouth is a crown, working on the second generation, but the smile is still young.

When I turned 50, the membership invitations from the AARP flooded the mailbox. AARP is relentless. Even when you pass on, as my father-in-law did years ago, the renewal requests continue.

And when I turned 50 and took a position at Chapman, I immediately became the senior member of the faculty, joining that club, as we called them decades earlier, of “olde farts.”

I started teaching in a cohort of almost a dozen at Ohio Northern University in 1972. I’m the last in the Academy. Most have retired, a few have left us, and one exited the academy in a spectacular manner by shooting and killing a colleague. Who ever said nothing ever happens in Ada, Ohio?

When I turned 55, I qualified for senior discounts at the bank and movie theatres, but where are the movies for non-teens?

60 went by without a peep, except for another round of invasive medical exams.

Yea, I know my hearing’s down, with the weight, cholesterol and blood pressure up. I do not always hear, much less understand, today’s music, but the songs of the 60’s will always be young (cf. Neil Young, Jesse Colin Young, Youngbloods).. They still play on the turntable, and the stereo is as good as young. If Saturday Night Live were as good as thirty years ago, then maybe, just maybe, I might be able to stay up late and watch it.

I still read newspapers and hardcopy. I know though that today’s young will not read “War and Peace” on a laptop by the beach.

Yes, you are only as old as you feel, and I feel forever young at heart. But then again, only the good die young, and that’s a sobering thought.

I appreciate Winston (not Ward) Churchill’s sage advice that “If you’re not a liberal when you’re 25, you have no heart. If you’re not a conservative by the time you’re 35, you have no brain.” So what if he never said it; it sounds Churchillian.

So what’s my point? I received a piece of junk mail today from the American Bar Association, soliciting my membership in the Senior Lawyers Division of the ABA. They’re telling me I’m old. I never joined the Young Lawyers Division, so why would I want to join the Senior Lawyers Division?

As long as I can stand in front of the class, I shall be young.

Wednesday, July 23, 2008

Get the Mercury Out - Out of CFB's

Mercury – the Roman messenger of the Gods

Mercury – the first planet from the sun

Mercury – a mineral used by civilization since the days of the Ancient Greeks

Mercury – a neurotoxin whose toxicity has been known since the Ancient Greeks

Remember the Mad Hatter from Alice in Wonderland? He was not a fictional creation of Lewis Carroll’s fertile imagination. Hatters were first sickened and then killed by working with mercury vapors in the curing of felt in the manufacture of hats. “Mad as a hatter” was a common phrase.

Mercury can impair hearing, vision, balance, speech and vocabulary, and muscular control, especially in small children. Even low levels of mercury are harmful to fetuses. Adults can suffer hair loss, an increased risk of heart disease, and memory loss, not to mention poisoning.

We’ve come a long way since I was a child. We used mercury thermometers to take our temperatures. Drop the thermometer and watch it break. That little silver ball was so cute to play with! Cut yourself, and then apply that handy, potent, stinging anti-septic, tincture of merthiolate, also sold as mercuricom. Mercuricom (mercury) poisoning, either through ingestion or excessive dermal contact, was all too common.

The FDA banned the over the counter sale of these formulas in the 1990’s. Many states, including Connecticut, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington have banned the sale of mercury thermometers. Some have also prohibited the sale of consumer goods using mercury. Mercury switches are no longer used in new cars.

The 1960’s and early 1970’s witnessed a tragedy in Minimata, Japan. A chemical company discharged mercury wastes into Minimata Bay for almost 4 decades. The mercury got into the food chain with devastating consequences to the villagers who subsisted on a fish diet. Children were born with birth defects and mental retardation. The photos of the children are chilling to look at. Japan criminally prosecuted a few corporate executives for the tragedy, which attracted international attention.

Society is currently concerned about the risks of mercury in dental amalgam fillings, which are a combination of silver and mercury, the use of thimerosal (thiomersol) as a preservative in vaccines, and mercury levels in fish. Early reports linked the thimerosal to increasing rates of autism. Recent studies have discounted the risks both in the fillings and the vaccines. Thimerosal has not been used in the United States since 1999 in children’s vaccines.

Adults, especially pregnant women, should avoid eating shark, swordfish, and albacore tuna because of the buildup of mercury in their fat tissues.

Mercury is a problem in coal power plants. Since mercury does not incinerate and is not biodegradable, it lingers in the environment. Mercury is emitted in the effluents coming out the stacks. The mercury molecules will either fall onto the ground or into bodies of water. In either event, the mercury will work itself into the food chain. These power plants are the largest industrial source of mercury in the environment. A similar problem occurs with the smoke from forest fires.

All this brings us to the law of unintended consequences and those green, energy savings, compact fluorescent bulbs (CFB’s).

By law incandescent bulbs will be history by 2012; no more will be sold in the United States, except perhaps at flea markets, garage sales, and tag sales.

The problem is that each bulb contains mercury, less than 5 mg/CFB, but mercury nonetheless. Throw the old CFB in the trash, and mercury will accumulate in the municipal landfill. Brake the bulb, and mercury will escape. The amounts are miniscule, but the quantities sold are astronomical. WalMart sold 193 million CFB’s between October 2006 and June 2008 while Home Depot sold 75 million in 2007. They all have to be disposed of sooner or later, either properly or improperly.

The mercury vapors in these bulbs have caused injuries to workers, and pose a cumulative risk to society.

However, while the mercury levels have been reduced, science has not yet discovered an alternative to the mercury, which to date is the only source of proper vapor pressure that sheds light efficiently without generating too much heat. Scientists are working on an alternative, but in the meantime it may be a Faustian Bargain, as was asbestos.

Friday, July 18, 2008

"What Happened" to Scott McClellan?

Nothing; that’s just it! Scott had his 15 minutes of fame, preceded by 2 ½ years of ignominy. He’s back to being a nondescript nonentity. He’s on a book signing tour, but receiving no publicity.

No matter what he wrote about the inner workings of the Bush Administration, of which he knew little in fact, he did not receive the star treatment of Richard Clarke, Joe Wilson, Valerie Plame, or even Cindy Sheehan.

McClellan possibly could have been a historically valuable source of information on the Bush Administration, which had notoriously kept a tight rein of secrecy on the workings, thoughts, and deliberations of the inner circle throughout the Administration. He had precious little to reveal tough because he was kept outside the loop. Much of his book is based on speculation, conjecture, and frustration over his insignificance.

He testified before Congress on June 20. His statements did not even get Page 1 attention in the press. Instead, they were buried somewhere on an inside page. McClellan’s testimony and presence would have no creditability with the public, so Congress and the Media dumped him.

Was McClellan simply naive or stupid in writing “What Happened?” The answer is both.

He was upset because he was fired as Press Secretary to President Bush, but wasn’t even told by the President. Instead, an emissary, Chief of Staff Josh Bolton, delivered the news. He was chagrined, but that’s how Washington works. The Bush Administration implemented a long needed reorganization; McClellan was worthless in getting out the Administration position. He wasn’t the only failure (Treasury was a running soap opera), but clearly the most visible.

The irony is that anyone who watched any of his press conferences wondered how he could have held the position, much less have been promoted to it. He constantly had the “deer in the headlights” look, or as liberals would have called it 18 years ago, “The Dan Quayle” look, although the former Vice President is in fact very intelligent. McClellan was in over his head from Day 1.

All we have to do is compare videos of his predecessor, Ari Fleischer, or successor, Tony Snow, who died all too young last Saturday. Many press secretaries have distinguished careers after office. Ike’s Press Secretary, James Haggerty, became the first President of ABC News. JFK probably did not need a press secretary because of his skill with the press, but Pierre Salinger served with distinction prior to a media career. Bill Moyers of PBS fame, an ordained minister, and green lighter of the Daisy Ad, held the position for LBJ. George Stephanopoulos, Chris Matthews, and Pete Williams (technically press secretary for the Defense department) currently have successful careers. The odds are no network will offer a position to McClellan.

The cynical theory is that he kept the job because of the Bush Administration’s contempt for the media. They knew he wouldn’t say a thing because he couldn’t.

He got the job and kept it because of loyalty, one of Bush’s attributes. He was with Bush since 1999, and his mom was a powerful Republican in Texas. She lost the race for Governor in 2006, which caused bitterness in the broad McClellan family.

McClellan faces a problem in the future. People don’t like whistle blowers or traitors. Our society and civilization depend on trust. McClellan breached the trust of his political family.

McClellan’s problem is that those he betrayed will never trust him again, and those he benefited will never trust him in the future. Even the British never fully accepted Benedict Arnold. The ancient Greek Alciabides fled his Athenians for the Spartans, and then, when he wore out his welcome with the Spartans, had to flee to the Persians. No Greek would have him.

Our treatment for betrayers in our society is shown by the treatment received by Dr. Mark Whitacre, the President of an Archer Daniels Midland (ADM). The executive informed the Justice Department in 1992 that his unit was engaged in a price fixing scheme with competitors. The FBI had him wear a wire for 2 ½ years. His identity, which was supposed to be kept secret awhile longer, was revealed in 1995 when the conspirators were arrested.

ADM then accused Whitacre of embezzlement. Hw was forced to plead guilty to both price fixing and fraud. He was sentenced to ten years ij jail, a longer prison term than any of the price fixing conspirators. He spent 8 ½ years in jail. ADM even sued his parents for conspiracy, conversion and fraud for the $100,000 he gave them and then sought another $500,000 in punitive damages from them.

The message sent from the Justice Department was twofold: we encourage in theory, but penalize in reality, whistle blowers, and don’t come to us.

Saturday, July 12, 2008

Steve & Barry's, Say It Ain't So!

Steve Shore, Barry Prevor,

Tell us Steve and Barry’s isn’t in bankruptcy. Tell us that it won’t sail through Chapter 11 to Chapter 7 and liquidation. Tell us that you two didn’t take about $160 million out a short time ago just for yourselves. Tell us that Steve and Barry’s really wasn’t an exercise in creative accounting. Tell us that you haven’t stiffed scores of small vendors, advertisers, and builders, who may also go out of business because they trusted you. Tell us what is going to happen to 7,000 employees, including the students working their way through college.

Tell us that you didn’t fall a year behind in paying the Michigan Daily $20,326 for ads in the student newspaper. Tell us that universities such as Purdue and Michigan haven’t cut off your licensing rights to manufacture apparel with their trademarks. We know that Linen’n Things, Sharper Image, and Lillian Vernon recently entered bankruptcy, but tell us that you’re not another Crazy Eddie’s, Krispy Kreme, Adelphia, Global Crossing, or Enron. Tell us that you haven’t been opening stores (200 in the past 4 years) on a pace that seemingly rivals Starbucks and Subway.

Tell us how you could blow through a $200 million line of credit from GE since March.

We really wanted to believe that you had brought real competition to the previously overpriced sporting goods market.

We believed you when you explained that you could sell quality branded college and professional shirts for $10 and $14.98 Stephon Marbury sneakers (Take that Air Jordan!) because you mastered the arcane science of “tariff engineering.” We believed your Mumbai headquarters could make a profit manufacturing clothes in such exotic locales as Lesotho and Malawi without using sweatshops.

Did Purdue terminate your contract because of poor quality?

And did the University of Michigan, for whom your parent company, 4004 Inc., is the largest licensee, terminate the agreement for failure to pay the licensing fees? The Ann Arbor store was a gold mine. Tell us how you blew it.

We believed you when you modeled your business plan on WalMart’s high volume, low margin success.

We knew it was too good to be true, but wanted to believe. We were puzzled when your Orange County, California store did not stock any USC merchandise, but carried UMass.

Is it true that major landlords were so desperate to get you into their vacant big stores that they advanced you $2-7 million/store to come into their malls? How can it be that the landlord pays the tenant, and the tenant still loses money?

Finally, tell us the names of your accountants, for they too will be sued.

Wednesday, July 9, 2008

The Paralysis of Privacy: Jacob Houvener and the Constitutional Sanctity of Dorms

An appellate court in Washington State has just issued a bizarre opinion that stretches privacy to the breaking point. The court held campus police at Washington State University lack legal authority to conduct random patrols of dorm hallways. These common hallways were granted the same constitutional rights as the inside of a private home.

Campus Police Officer Matthew Kuhrt responded at about 5:45am to a report of a burglary in Room 323 of a highrise dorm tower. The Officer proceeded to search the dorm, starting on top and working his way down the floors. He heard music and voices in Jacob Houvener’s sixth floor dorm room. Officer Kuhrt thought these sounds were suspicious at that time in the morning.

Officer Kuhrt listened at the threshold of the dorm room, and heard two voices. The first said: I’m just paranoid we’re going to get caught” and the second: “I don’t think he would call the cops.”

These statements certainly sound like probable cause.

The Officer twice unsuccessfully tried a ruse to get them to open the door. They didn’t, so he tried the direct approach. He knocked on the door, identified himself as a police officer, and ordered them to open the door. Houvener opened the door, and Kuhrt ordered him to step out, and then proceeded to question him.

Houvener made incriminating statements that he had items, which did not belong to him, in the room

A second officer asked the guest to step out. Upon questioning, the guest also made incriminating statements.

Officer Kuhrt then arrested Houvener and read him his Miranda warnings. Houvener was then asked to go back into his room and retrieve the stolen items.

Sounds like great police work!

But not to four judges in the Evergreen State.

The trial judge suppressed the evidence and dismissed the charges with prejudice. The judge relied on several factors to hold that the suspect had a constitutionally protected expectation of privacy in the common hallway.

The dorm floor was for men only, a common bathroom was shared across the hall from Houvener’s room; each floor has a common study room; each floor is only accessible by passkeys; and visitors are not allowed on the floors between 2am and 6:30am.

Not only was the dorm hallway viewed as the equivalent of private property, but the Officer lacked the right either to listen at the door or order the student out of the room.

The appellate court agreed “with the trial court’s thoughtful analysis,” which only shows the bankruptcy of the appellate opinion.

This dorm’s layout is common to many dorms. A reasonable expectation of privacy certainly exists in each dorm room, as long as the door is closed. But we do not have expectations of privacy in common areas. If, for example, the students are using illicit drugs in a zero-tolerance dorm, a police officer randoming patrolling the halls would be precluded from taking action because, according to the Washington court, he has no right to be there, even if the aroma is blowing out the door.

The next two questions for Washington State are if the University could even punish Houvener and the other student for the theft and the braking and entering of another student’s room on a floor they should not have even been on, and if Officer Kuhrt will now be liable for violating the constitutional rights of Houvener. Such is the absurdity of the court’s WAZZU opinion.

At a time when we are increasingly concerned about campus security, drug and alcohol abuse, date rapes, shootings and knifings in dorm rooms, and burglaries, the court has disarmed one of the most effective means to improve campus security, student safety, and reduce campus crime.

The opinion was based on the 4th Amendment to the United States Constitution, so the final word will be by the U.S. Supreme Court if the case goes that far. The judges could cite no federal courts that have held common dorm hallways to be private.

In the meantime, the University should include in the dorm contracts a statement to the effect that no expectation of privacy shall exist in the common areas, and that university police will randomly patrol the dorm hallways.

Friday, July 4, 2008

Obama, Patriotism, and Independence Day

Obama, Patriotism, and Independence Day

As we pause on the 4th of July to celebrate out nation’s freedom, and the brave deeds of our Founding Fathers, State Militias, and the Continental Army which won our independence, let us think about the meaning of patriotism today.

We need to do so because we are no longer to doubt anyone’s patriotism, indeed we cannot because patriotism is so broadly defined by some that it has no effective meaning.

Barack Obama just delivered a speech in Independence, Missouri (Oh, the symbolism) telling us what patriotism means. As far as I can tell it’s patriotic to dissent. The First Amendment certainly protects Freedom of Speech, but voters can still hold the candidate accountable on election day.

We are not to question his patriotism. Both Barack and Michelle love America.

Let me posit therefore that the issue for Obama is not one of patriotism, but of character, judgment, experience, expertise and accountability.

Many liberals in recent years have responded angrily to questions about their support, or more accurately lack thereof, for the military, missile defense programs, or almost any new military program that would improve national security, by asking “how dare we question their patriotism.” Barack was more sophisticated in the speech on Monday through his redefinition of patriotism.

The Democrats’ problem goes back to Eugene McCarthy in 1968 and George McGovern in 1972 and their anti-national security wing of the Democratic Party.

Former Vice President Mondale ran for President against President Reagan in 1984. Mondale ran a TV ad showing him on the bridge of an aircraft carrier, thereby professing his support for the military. Reagan destroyed him in the debates by pointing out that Mondale had voted against authorizing the USS Nimitz carrier.

Governor Michael Dukakis of Massachusetts vetoed in 1977 state legislation that would require teachers to lead students in the pledge of allegiance. Once again, that veto was not a lack of patriotism; it was simply Dukakis and Massachusetts – the only state to vote for McGovern. Dukakis had to answer in 1988 for that veto when he ran for President. The picture of him riding a tank did not change the perception voters had of him.

When Barack removed his American flag label pin prior to the Democratic primaries because it was simply “a pin,” or whatever, that was no reflection on his patriotism. Similarly, when he started to wear it again after clinching the nomination, he did not reacquire patriotism. No, those were simply acts of political expediency.

Barach pinch hit for Senator Kennedy at a recent graduation speech at Wesleyan University. He extolled the virtues of public service, going through a whole litany of commendable public service activities Americans can engage in. We are not to read into the speech a lack of patriotism simply because he omitted the most sacrificing of all public service activities, the military. That perhaps Freudian omission goes to judgment and values.

Hanging out with a domestic terrorist, William Ayres, who bombed the Pentagon in 1972, does not show a lack of patriotism. It shows either a lack of judgment or political opportunism.

When his personal minister, the Reverend Wright, pours out Anti-American, Black Liberation theology venom for 20 years, including “God damn America!,” and the Senator stays with him, then that too shows a lack of judgment, or once again political opportunism to get elected to office in the Black community of Chicago. Obama three months ago said he could “no more disown” Wright than his own grandmother. Of course, Obama later disowned him when the political heat rose.

No, Senator Obama, the question is not one of patriotism, no matter how you define it, but of character as you campaign in all 57 states.

Thursday, July 3, 2008

Get'em to the Church on Time

Get’em to the Church on Time

Get’em to the church on time. AMEN.

They’re lining up in West LA, San Francisco, and Palm Springs to marry. The first legal day of gay marriage was June 16. Marriage licenses in the week after June 16 were 250% of the normal rate for the state. Even the historically conservative Orange County witnessed a boom in marriages. God Bless’em.

They’re dancing in the streets in the Castro, and celebrating on Fire Island, Key West, P’town, Asbury Park, Hillcrest, GaYbor, and Capitol Hill (Seattle).

But for all they know, the California Supreme Court’s 4:3 affirmation of gay marriage may fall to the voters in the November election. And that is how it should be – the deciding vote, yea or nay, should be by the voters – not four judges.

I was born, raised, and educated in San Francisco. I lived my first 24 years in the City. I don’t care what anyone’s sexual orientation is, and in November I will vote against the proposed constitutional amendment to ban gay marriages in California.

If Ellen DeGeneres and Amanda Lee Rogers, aka Portia de Rossi, wish to exchange nuptials, let’s celebrate with them. Let George Takei and Brad Altman live long and prosper when they marry. And if Mayor Antonio Villaraigosa, he of an imploding marriage, conducts gay as well as straight marriages at City Hall, that is his prerogative. And if California can reap an estimated $560 million in tourist dollars for marrying non-residents, which Massachusetts does not, then Hooray for Hollywood. We need the money. We also need in the interim the millions of dollars flowing into the state on both sides of the November referendum.

But I strongly oppose the process by which 4, or even one judge, can judicially legislate and unilaterally change the marriage laws of California, and perhaps America. The voters of 44 states have banned gay marriages, either by statute or constitutional amendments (27).

The California opinion was written by Chief Judge Ron George, who according to both the Los Angeles Times and Orange County Register, agonized over the decision. Had he followed the law, the decision would have been easy. Had the California Supreme Court sat in Sacramento instead of San Francisco, the outcome may have been different. The California voters banned gay marriages by an overwhelming 61%-39% vote a few years earlier. This time the vote will be on a proposed amendment to the California Constitution which will restrict marriages to heterosexual couples.

To some extent the issue is symbolic, since many states including California have legalized civil unions, which provide most, but not all, the legal benefits of marriage, to couples, both gay and straight. Employers are increasingly providing domestic partner benefits to same sex couples. And at some point in the future a liberal Governor would have signed a same sex marriage bill by the legislature. The Court did not have to act.

Americans have increasingly accepted, over the space of a few decades, homosexuals in mainstream society. Few, even in San Francisco in the 1960’s, would have predicted tolerance of the gay life style in such a short time.

But marriage is different for many. Symbolic to some, emotional to many, the issue goes to the heart of the Judeo-Christian heritage, the foundation of America’s moral code.

Some critical social issues must ultimately be resolved by the body politic. The United States Supreme Court in the Dred Scott decision could not resolve the slavery issue. A tragic Civil War was necessary, and the aftermath still affects American society 14 decades later. Conversely, England’s Parliament ended slavery throughout the British Empire decades before our Civil War. Nor could the Court solve racial discrimination in Plessy v. Ferguson. The people will be the ultimate arbitrator of the gay marriage issue.

Some judicial legislation goes too far. Judges, the least democratic branch of government, display contempt for the public and the republic when they usurp both the voters and legislatures in creating new “rights” out of thin air. California and Massachusetts have done so on the gay marriage issue. In a sense, it aborts the critical resolution by the body politic.

Which brings us to Roe v. Wade!

Roe v. Wade is the epitome of judicial legislation, even by the standards of the activist Warren Court. Rather than cut off the debate over abortion, it sharply raised the decibel level. A strong woman’s rights activist, Professor Ruth Bader Ginsburg, thought at that time Roe v. Wade was wrongly decided.

Two personal vignettes from my memory, and a final observation, are important. By the late 60’s and early 70’s, legislatures and voters were legalizing abortion, just as they are currently reassessing gay rights. For example, California protects a woman’s right to choose in the state constitution.

I was completing my dissertation at the University of Michigan in 1972-73. New York had liberalized its abortion laws, but Michigan had not yet. Signs were posted in the Michigan Union:


Justice Harry Blackman, a Methodist, agreed, prior to penning Row v. Wade, to give the dedication speech at the new law building at Ohio Northern, a Methodist university, in 1974. When Justice Blackman rose to give his outdoor speech, a line of demonstrators, led by the Irish Catholic Associate Dean and his Polish Catholic wife, rose in peaceful protest.

I knew then that Roe v. Wade was different. It sat off a rising storm of protest and outrage, including violent protests, arson and murders, that was unnecessary. One by one, the vast majority of states were legalizing abortion, albeit with reasonable restrictions.

Sadly, Roe v. Wade led the way in turning the judiciary into a partisan branch of government. In a few states like Massachusetts, the judges not only have lifetime tenure, but in fact are not even confirmed in office by the Legislature. Thus, these judges are the one branch of government totally unresponsive to the voters. Even in California, the Supreme Court judges have 12 year terms, albeit it is simply a yes or no vote.

My observation: The GOP has to hope the Supreme Court does not overturn Roe v. Wade. If the Court does, any attempt to ban abortions will result in a large turnout, especially by women, against Republican candidates. Women, both liberal and conservative, want the right to choose, rather or not they would exercise it.