06 October 2014

Mob Rule Is Unsafe

... for the next few months. It's the first monday in October, so the US Supreme Court is back in session, rudely interrupting my post-migraine recovery.

  • And one of the first things that it did was turn away appeals from states in a mob-rule-based controversy. By refusing to hear the appeals at all from several states that want to ban gay marriage but were rudely smacked down by courts below, the Court allows the lower-court rulings to stand without ruling itself. On one hand, this means that the restrictive laws in those states are immediately ineffective, because the Court's ruling allows the particular rulings below — all of which rejected restrictions on gay marriage — to stand. No need to wait up to nine months for briefing and argument and a decision! On the other hand, it's not a uniform, nationwide ruling, either; there are other pending disputes on similar laws, and a refusal to hear a case has no formal precedential value.
  • Meanwhile, the Nobel Prize Committee has begun announcing the 2014 honorees, starting with a three-way sharing of the prize in Medicine and Biology.
  • The so-called "Public Editor" at the NYT has pontificated with a mansplanation about the NYT's coverage of the latest Amazon-versus-publishers "dispute." She asserts:

    It’s important to remember that this is a tale of digital disruption, not good and evil. The establishment figures The Times has quoted on this issue, respected and renowned though they are, should have their statements subjected to critical analysis, just as Amazon’s actions should be. The Times has given a lot of ink to one side and — in story choice, tone and display — helped to portray the retailer as a literature-killing bully instead of a hard-nosed business.

    "Publishing Battle Should Be Covered, Not Joined" (04 Oct 2014).

    This is fundamentally wrong, and reflects a blindered, self-interested misunderstanding of a century of copyright law. Three developments before Europe went up in flames — the player-piano cases, the 1909 Copyright Act, and the Townsend Amendment — turned US copyright law from a law of creator's rights into a law of transferee's exploitation. Just look at who the actual litigants have been in most of the major copyright decisions since the rise of the recorded-music industry and the film industry put some real money at issue — President Ford didn't assert his rights, the publisher did; Dashiel Hammett didn't litigate over "ownership" of Sam Spade, the studios (and publisher) did; neither Professor Tolkein nor Sir Arthur Conan Doyle has asserted a damned thing about their respective creations since their deaths, but estates composed of the purported economic interests of their heirs did; it wasn't Roy Orbison, nor even his heirs, but his "publisher" (actually the equivalent of a vulture-capital takeover firm), who sued 2Live Crew; and so on. It has actually been quite rare to see a "human-creator versus alleged-infringer-and-not-distributor" battle actually reach a decision, let alone set precedent.

    That's what is actually happening between Amazon and the publishers: A struggle between transferees over how much of the pie each transferee gets to claim, with increasing disdain for those who bake the damned pie in the first place. This time, some of the bakers spoke up, which counts as "news" in a rather disturbing way. The Streitfeld piece was itself woefully incomplete... by failing to point out that the authors in question had all, long before this dispute arose, transferred their rights to third parties in a largely forced transaction involving multiple layers of oligopoly and other unfair trade practices, and so were dependent upon not being crushed by the rocks thrown by giants at each other while running around at the feet of those giants. None of the coverage in the NYT has come even close to acknowledging that there's either a transference of or imbalance in power at issue here, nor even that the interests of the publishers are not fully aligned with the interests of the authors. Neither has there been any acknowledgement that this kind of "disruption" has occurred at least half a dozen times in the last century, but that this time everyone has access to uncontrolled "news outlets" and so-called "modern" publicity mechanisms in a way that they haven't previously. Consider, for example, the 1990s consolidation of distributors that simultaneously laid the groundwork for the Crown and Borders bankruptcies and the demise of the true generalist bookstore; had the predecessor of Ms Sullivan (or anyone else at the NYT) been paying attention to the actual creator communities at the time, they would have seen quite a bit of distress... on CompuServe and GEnie semiclosed bulletin boards. Now, though, it's "all over the 'net," and so it constitutes "news" that is somehow worthy of notice.

    For the moment, we'll leave aside the irony that this is all coming from a representative of the company that screwed up electronic rights forever, leading to the Tasini matter and bullying of writers later by imposing "if you ever want to work for us again, you have to sign away the electronic rights to all of your past works" contracts on freelancers after it lost; that is, the playground bully still persisted in stealing lunch money after a trip to the principal's office. We'll also leave aside the irony that without its century-long misuse of the work-for-hire doctrine, the NYT would not — and probably could not — exist in its present form. Failing to acknowledge these critical pieces of context rather thoroughly undermines any opinion coming from the NYT... even before we get to the "civilization ends at the Hudson" problem underlying all of the NYT's coverage of "publishing" and "literature" issues, which only begins with its supercilious treatment of even elements like the University of Iowa's renowned MFA program like they're short breaks from the necessary life in NYC. For all that I value the attempts by many NYT writers (both employees and freelancers) to cover problems of national scope, that perspective all too often results in egregious misunderstanding resulting in a positive-feedback loop of diminishing credibility outside the NYC echobox.

    Then, too, there's a critical unstated normative assumption: That "the end of the world as we know it" would not "feel fine" — the next line in that old REM song that Ms Sullivan cites at the beginning of her mansplanation. This normative assumption parallels the NYT's failure to acknowledge context, either in general or its own. To put not too fine a point on it, this is the perspective of the buggywhip industry — interestingly enough, from just about a century ago, too. The arts would definitely be better off without [names of the guilty withheld for the nonce] acting as economically empowered gatekeepers (with really bad taste and little or no critical acumen or distance) and controlling literature not just for that island and its surrounding burroughs, but the nation — and perhaps the English-speaking world — as a whole. Not that other competing potential power centers, such as Nashville and Los Angeles and London, would be all that much better...

    Try again. And this time, begin by admitting that the NYT itself has a distinct stake in whatever results from this dispute; better yet, take that into account in your statement, Ms Sullivan, because that's what your job title implies you're supposed to do. But I suspect that you won't: To self-appointed arbiters of what is "news," their own self-interest never matters (and that's not just the NYT).

30 September 2014

The Silent Type

How many syllables does the word "design" (v., də'zīn) have? Well, according to most of the people responsible for designing web interfaces — and, for that matter, operating systems/environments — it has four; there appear to be two syllables before the word "design," sort of an inverse of "silent e at the end": 'grafik. And that's a serious problem for those of us who wear bifocals... or who actually passed typing in eighth grade.

It's more than just annoying when a major communications provider (a) has so many advertiser cookies and tracking cookies embedded in its site that it freezes in Firefox, requiring me to use Internet Exploder (2004 tech there, guys — that really says "We're down with this interwebs security thingy") to pay my bloody bill and (b) throws an autorunning popup video at me to get my attention for a new product that I don't want and have previously rejected when I'm attempting to give it money. And it's not just marketing dorks this time: It's the very design (without those two preceding syllables) of the site.

I would have just griped quietly into my coffee about this, but there's the same bloody problem with student loan providers. And my bloody bank. Don't make it pretty, then secure, then operable, if you actually want my business instead of my disdain. Make sure that the data does what it's supposed to, and that people with unusual-for-Americans names (such as two middle initials) aren't locked out, and that everything remains secure when dealing with personal data, before you ever let a 'grafikdə'zīnər near it (or at least one who hasn't thoroughly digested Tufte's introduction and thoroughly considered its implications). At least, that's what you should do if you want people to actually use it with words and numbers, such as names and credit card numbers.

And a little less hostility to touch typists would be nice, too. But that's probably asking far too much.

26 September 2014

[Insert Witty Title Here]

This week has been spent largely behind the scenes, so these link sausages are a bit distorted. More than usual, that is.

  • As it's Banned Books Week, I suppose I have to link to at least one item on the idiocy of censorship. On one hand, as a (relatively recent) parent myself, I understand the concept of "just wanting to keep my own children from being exposed to damaging, inimical things they're not emotionally or intellectually ready to process." On the other, consider the actual messages — and selfish, self-aggrandizing subtexts — of the We5tboro Bapti5t Church, or 4ch4n (irony of the extra measure of leetspeak fully intended), or the still-clogging-the-courts "birther" controversy with its unacknowledged-but-archly-omnipresent focus on race (PDF). And so, in that spirit, I refer to a surreal list of banned books from this century.
  • Scott Timburg stops his inquiry into "What Broke Hollywood?" a few steps short of reaching a defensible position. Leaving aside that there isn't a single answer, the largest factor probably has little or nothing to do with intent. I can make a good argument that the actual cause is a combination of the shareholder wealth-maximization meme (which, one might recall, is not found in any US corporate statute, but is instead a judicially created and imposed parallel to fiduciary duty imposed to prevent perceived abuse of minority shareholders) and the quarterly reporting requirements descended from the Depression-era Securities Act and Securities Exchange Act, which in turn were ideological responses to certain kinds of manipulation that were wrongly blamed as the cause of the stock-market crashes at the end of the 1920s (which is not a defense of that manipulation, just a dethronement). On the other hand, it might be as simple as asking "who makes creative judgments in H'wood?" and remembering just how creative people from those backgrounds — more to the point, how sensitive to narrative quality and values — tend to be (whether by training, education, experience, or inclination)... or not.

    Applying the preceding thought process to the current problems in publishing is left as an exercise for the student. Which, I suppose, gives away a substantial part of my training, education, experience, and inclination.

  • So, the meme that New York City used to have a lot of crime and has less now, thereby justifying its insane prices (he says living near San Francisco with tongue firmly planted in cheek and full awareness of irony), isn't really true? I'm shocked. I'm so shocked that I'll pretend that the increasing prevalence of nonviolent, white-collar crime in New York City-based commerce — ranging from the obvious, like securities fraud, to the less-obvious, like Ford-Pintoesque calculations of profit, loss, and the cost-of-maimingdoing-business in the garment/fashion industry — hasn't merely moved the crime off the stoops and into the highrises, where the cops have neither expertise nor awareness. Nor, for that matter, jurisdiction.

Back to the salt mines, looking for tasty salt varieties for the next batch of link sausages...

20 September 2014

Irritatingly Overspiced Internet Link Sausages

I'm not irascible. I'm rather permanently irasced.

  • For the thirtieth anniversary of a groundbreaking TV sitcom (for whatever that's worth), let's hear it for Bill Cosby. Perhaps Dr Cosby — an athlete himself at Temple, as an undergraduate — understands those prominent in football better than one would expect. Just substitute "football hero" for "cocaine" and let Dr Cosby explain the obvious pitfall... which is the best explanation I can come up with for the NFL, NCAA, and FIFA administrations — and too damned many of the players. However much I love the games themselves and respect the prowess of many of the athletes, I lose almost all of that respect in the face of so much other crap. I deal with the dubious participants in music, publishing, and theater (both stage and cinema) in the day job... and the sleaze factor is lower, despite the prevalence — a near majority — of, umm, intensified personalities.
  • After being stationed there for several years, I found this description of a vile, bigoted, unAmerican Oklahoma politician's behavior all too unsurprising, indeed predictable. After observing the treatment of our Saudi allies/customers, there for training on AWACS, when they ventured off-base, and the treatment of other non-evangelical-protestant people — including servicemembers and their families — ranging from the obvious targets (Jews, atheists, agnostics) to the less-obvious (fellow-protestant Mormons and nonevangelical Methodists) and the disturbingly sectarian (faithful Catholics), not to mention the melanin-enhanced, my eyebrow didn't even twitch at that story. I have a low tolerance for intolerance that I try desperately to suppress — usually, but not always, successfully — every time someone I don't know tries to intervene for my soul (it's over thirty years too late — the devil has even paid off the mortgage and owns it free and clear!), but this sort of nonsense really makes it difficult.
  • The results are in, and Scotland will not (immediately) become fully independent of the United Kingdom. <SARCASM> That also (temporarily) ends the possibility that an independent Scotland would adopt the Unicorn as its new unit of currency, even if — in stereotypical depictions of Scots, particularly from the mid-20th century — a unit of currency was as illusory (and elusive) to the average Scot as any other unicorn. </SARCASM>
  • On a slightly lighter note, an article on the purported pitfalls of footnotes is actually about the pitfalls of citation form and format... and what that does to clear writing. At least Mr Parks isn't stuck dealing with default citation forms that don't relegate the citations to notes where they can be looked up, but embeds them inline — in string citations — where they are far more likely to disrupt the reader's understanding of the substance than to illuminate. Like, say, legal citation, <SARCASM> which was obviously invented as a way to save on the cost of typesetting (no smaller characters, no varying page lengths/borders, etc.) </SARCASM>. Unfortunately, I don't have a good citation for that assertion... but there's a meme (myth?) out there that it also explains many of the peculiarities of Chicago Manual of Style citation system.

    That said, there remains at least one excellent reason to retain some method of what we in the law call "pinpoint citations" (citations that pull up the exact location within a work of the passage supporting the point made): Not all citations meet excrutiating standards of accuracy, and pinpointing can later be important to uncover those inaccuracies. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 2798–2801 (2008) (historical research of dubious accuracy as expounded in a "non-official" edition, which remains frustratingly "current" due to the extreme and unjustified delays in issuing the official edition); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580–81 (1994) (definition of "parody" that is nearly a self-parody); see generally any copyright case relying upon the late Justice Story without acknowledging his limited understanding of creation as a process.

17 September 2014

A Midweek Snack

Just a couple quick bites of sausage.

  • Congratulations to this year's new MacArthur Foundation Fellows. At last: The Bechdel Test has imprimatur from the wine-and-cheese class! All seriousness aside, this is an eclectic group to watch.
  • Meanwhile, over across the Pond, Scotland votes tomorrow on full devolution — unwinding the union between Scotland and the other three members of the United Kingdom. Naturally, The Economist weighs in with a ridiculous and relentlessly upper-middle-class-oriented assertion that Scots will be "better off" staying in the UK. I hate to imagine what the corresponding item might have looked like in 1775 in Philadelphia as opposed to Edinburgh. The key problem is that the poll is inherently unfair and inaccurate: It asks only "Continue with the UK or do something else?" without specifying in any form what that "something else" might be. A binary decision of the specific against the aspirational is never accurate... or fair to either alternative, let alone to the people who have one particular vision of that aspiration but will be closed out of it, and would in the end have preferred Union to what actually emerges.

    That said, I do think there's a significant risk of Balkanization, driven — as usual — by centuries-old tribal rivalries cloaked in religion. And I don't just mean financial or even civil chaos, either.

  • There has been a lot of interesting copyright litigation activity in the courts in the last couple of weeks, but a fuller update awaits two more pieces of the puzzle in Europe. On this side of the Pond, though, Judge Easterbrook has rather expressly created a circuit split with the Second Circuit on the value — and perhaps even propriety — of the "transformative use" meme in fair use. In Kienitz v. Sconnie Nation, LLC, No. [20]13–3004 (7th Cir. 15 Sep 2014), he criticizes the Second Circuit's nonstatutory revision of the Copyright Act in Cariou (discussed here a while back).

    Fair use is a statutory defense to infringement. The Copyright Act sets out four non-exclusive factors for a court to consider. 17 U.S.C. § 107. The district court and the parties have debated whether the t-shirts are a “transformative use” of the photo—and, if so, just how “transformative” the use must be. That’s not one of the statutory factors, though the Supreme Court mentioned it in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). The Second Circuit has run with the suggestion and concluded that “transformative use” is enough to bring a modified copy within the scope of §107. See, e.g., Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). Cariou applied this to an example of “appropriation art,” in which some of the supposed value comes from the very fact that the work was created by someone else.

    We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in § 107 but also could override 17 U.S.C. § 106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under § 106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under § 106(2).

    Slip op. at 3–4 (hyperlinks added).

    Despite the rather understated rhetoric, this exposes a serious problem with current copyright litigation and theory. Once upon a time, fair use was a purely judge-made doctrine — a doctrine that was not consistent across the country, and especially not regarding the visual arts. Then along came the 1976 Act, which included a specific statutory framework for fair use. Unfortunately, there are also inconsistent statements in the legislative history of the 1976 Act claiming that this wasn't actually a substantive change, but merely codified the case law. Of course, that would have been sensible if, and only if, the case law had been consistent. There are several competing theoretical frameworks for fair use, which have varying relationships to the statute. Of course, fair use isn't just a matter of copyright law; as the Supreme Court pointed out in Campbell, there are constitutional dimensions to fair use... and similar, difficult constitutional dimensions to derivative works.

14 September 2014

Oversmoked Internet Link Sausages

Lots of travel-related distractions in the last week or so have kept these internet link sausages getting all hot and smoky in the smokehouse. Of course, some of the smoke is coming out of my ears...

  • Dame Judi Dench touches on an issue extending all the way across the arts in the Grauniad with her lament that the current system of developing acting talent in the UK preventably, and unreasonably, inhibits those from lower- and lower-middle-class backgrounds (fake paragraphing removed for clarity, typography corrected, and presumably declaimed in M's slightly exasperated tones).

    [Dench], who won an Academy award for her performance as Elizabeth I in Shakespeare in Love, believes it is vital for young actors to watch professionals on stage. "I always say to young students, 'Go and see as much as you possibly can', which is what we used to do. But then we paid a pittance for sitting in the gods," she said. Ideally, she said, she would reinstate rep[ertory theatre]s all over the country, but knows this is impractical, though she does not believe that government has to choose between hospitals and theatre: "In a civilised country, there's money for both." She accepts that talented aspiring actors can make it without going to drama school. "But it's a hard and rocky road," she added.

    And at that, actors have it better than do authors, artists, and musicians. Ignore, for the moment, that the skill set and feedback obtained from drama school is much, much more closely related to the actual demands of being a working actor than what is obtained from any form of training offered for authors, artists, or musicians. Completing that Royal Academy of Dramatic Arts program is simply a much bigger foot in the door toward a career as either a working actor or in the drama-support areas than is a writing degree from even a top-notch program (Over Here or Over There), or time in one of the few artist-apprentice programs or non-architectural art programs that does not funnel artists into the commercial horrors of "graphic design" (which I will excoriate another time; for the moment, just try using any of the "wonderful graphic design" smart phones out there wearing bifocals), or even a full degree from any of the leading undergraduate-level music programs.

    Then, too, there's the problem of how those from the must-work-as-a-teen-for-personal/family-support/survival cohort can even come to the interest of the prawn-sandwich-munching "patrons" of performance arts. The only potential solution to the problem is one that blends patronage, market incentives, and basic human decency... in a way that nobody has tried, let alone made work administratively.

  • Which leads directly to the question of exploitation of publicly purchased and displayed works and who benefits from them. Mr Rushton is, to put it bluntly, full of manure on this one. His position depends upon two critical assumptions, both of which are blatantly false (or at least are blatantly false if you're not East of the Hudson... or an economist like Mr Rushton). First, it assumes that all of the proceeds and other benefits must necessarily flow to either the patron or the artist — that there's no way to share those benefits. Just because Michelangelo never benefited further from the Sistine Chapel once he put down his brush does not make that either "right" or "the proper default"... and neither does the converse case in which the municipal context of, say, that Picasso in front of the Daley Center does not become part of the work itself and therefore subject to overruling by the artist. Second, it assumes that any negotiation between artist and patron is one between equally informed and empowered parties; I have yet to see one in all the time I've been dealing with commercial exploitation of the arts.

    Instead, Mr Rushton is seeking to apply that fifth fair-use factor — administrative convenience — in yet another aspect of the ownership of copyright/ownership of copy struggle.

  • Congratulations to Ursula K. Le Guin, who will be receiving long-overdue recognition from the National Book Foundation for her Distinguished Contribution to American Letters. The Foundation's Executive Director notes that "She has shown how great writing will obliterate the antiquated—and never really valid—line between popular and literary art" — that is, that the literary judgment of the people who haven't read her works but nonetheless persist in categorizing them for commercial and administrative convenience isn't worth very much.

08 September 2014

Quoted — But Not "Scare" Quoted — Internet Link Sausages

Don't worry, it's just an ingredient forming less than 2% of the content of these link sausages.

  • A NYT quasi-dialog asks "who owns fashion?" without ever coming to grips with the two essential predicate questions: "what is 'fashion,' as distinct from 'clothing'?" and "what does it mean to 'own' a fashion design/trend?" Of course, that's not surprising: None of the participants in the dialog live outside the echobox of the NYC-based garment industry (very much like proclamations concerning books from east of the Hudson), and none of the participants appear to value function as much as form. In short, this is a marketing exercise in which the value of that being debated is assumed without examination; it parallels whether Frank Lloyd Wright "owns" Falling Water (no — leaving aside that he's dead — he didn't/doesn't) and whether Bob Dylan "owns" the Jimi Hendrix rendition of "All Along the Watchtower," but without even the pathetically inadequate rigor applied to those questions.

    The fashion industry (or at least some of its exponents) needs its jockstrap pulled up over its head anyway, for its rejection of function (e.g., the loss of the chest pocket on men's shirts, just when it has become increasingly necessary for reasonably-sized cell phones) and its celebration of crappy branding and logos on everything. Dammit, the only logos/branding I've ever voluntarily worn on my clothing — at least where visible to others — is a matching silver "U.S." on the lapels of my uniform. That was enough of being a billboard to last me a lifetime.

  • Further proof that "conservative" does not mean "protective of and derived from the honorable elements of our past": conservatives are objecting to minor revisions to history curricula that don't meet their preconceived notions of truthiness. Excuse me, but when further research into documents of the time discloses that, say, the so-called "states' rights" movement of the late 18th century was founded on the presumed property rights in human beings, it makes sense to disclose that at least as much as it does to criticize the hypocrisy and excesses of Marx and Engels half a century later. And when the purported changes are criticised not concerning their factual basis, or even their discussion of contemporaneous doctrine, but how we look at both of them today through the eyes of our contemporaneous doctrine — that is, we look at basic-level historical analysis like we'd look at anything else — the "movement conservative" doctrine begins to look more than a little bit hypocritical and self-interested without the "enlightened" part that is an essential and critical part of both this nation's founding and any realistic chance at avoiding genocide. Although, to tell you the truth, I'm a lot more interested in the purported Howard Zinn "version," which is a rather unnuanced characterization of Zinn's own writings... and in a couple of hundred years, it'll be the same damned thing all over again.

    Tom Tomorrow, 08 Sep 2014

  • An Australian rants against a short-term-economics worldview and gets accused of being an "economist". Remember, enlightened self-interest...
  • The IPKat mewses about "harmonisation" of moral rights. Which, of course, would require some kind of agreement on what moral rights are — across nations, across art forms, across cultures (I can already anticipate the hard-core Confucian response!).

05 September 2014

I Suppose Weenies Are Link Sausages, Too

Non Sequitur, 02 Sep 2014

  • I'm shocked — shocked, I say — that the former governor of Virginia has been found guilty on eleven counts of political corruption. Not the corruption; I did, after all, spend two decades living in a state in which half the former governors were convicted felons. No, I'm shocked that in Virginia they'd bother prosecuting.
  • I usually find the Melville House blog replete with shortsightedness and conventional wisdom... but not this time. Sal Robinson rightly notes that translated works sell a lot better than the S&M mythology/predisposition alleges. The problem is that publishers still have a 1960s-imbued notion of what the actual costs of publishing a work are — and can't, or won't, get their heads into relevant contemporary data, insisting on continuing to analyze both costs and revenues under 1970s automobile-industry accounting paradigms.
  • I suppose that beats the problems with academic publishing, which on either a return-on-investment/equity basis or a gross-profit-margin basis is by far the most-profitable publishing industry. Gross margins at Pearson's academic imprints (book and periodical) and at Springer have exceeded 30% for years, and frequently exceed 40%. Naturally, this distorts the expectations for trade imprints/industries at the same conglomerates... as implied by the previous item.

  • This reflects the problem of intellectuals refusing/failing to adequately challenge stupidity/ignorance/shortsightedness of those in power. Of course, it might help if more of those in power — especially across the Pond, and I don't mean just in the UK — actually had real educations... and therefore could see some of the criticisms for themselves and/or understand them when expressed using words of more than two syllables, even if they didn't act on them. It might help even more if those in power did true public service, such as military or the equivalent, before going into politics and the upper reaches of business. It's really disturbing that, at around 3%, our Congress, federal judiciary, and cabinet-level executive is an order of magnitude more "experienced" in that sense than any in Western Europe (except Germany, due to the mandatory national service up to the early 1990s).

    Sadly, the same goes for the intellectuals, and it contributes rather disturbingly to the blind spots. No one set of backgrounds has a monopoly on either good or bad perspectives, ideas, or abilities. After all, Eric Blair (George Orwell) didn't really unleash his own prowess until after his little trip to Catalonia.

31 August 2014

Open Your Blue Exam Books, Please

... or, these days, fire up your word processor.

1. (60 min/30%) Consider the following passage:

Such phrases [as "Middle Ages"], obviously, are not self-contained; they are in fact incomprehensible unless we know some other facts. They designate something at first sight very vague, and need to be anchored in time (and, for that matter[,] in place) before we know what they mean. They refer to an unspecified number of centuries distinguished only by coming between others, and we are entitled to ask "between what? after what? in the middle of what?" Most people who read this book are likely to know the answers to such questions, approximately at least, before they open it, but only because the phrase "Middle Ages" has come to be taken for granted; has come to carry with it certain assumptions and presumptions — among them, that they apply to European history. But they were not there when men started to talk about medium aevum or media aetas, or coined other phrases as they cast about to express what they wanted to say. There was a time when the Middle Ages was a new idea, an invention, in fact.

J.M. Roberts, A History of Europe 162 (1996 U.S. ed.) (italics in original, punctuation corrected to US standard).

Discuss at least three of the following five items in light of this passage:

  • Justice Scalia's assertion that the legislative record is irrelevant to statutory or constitutional interpretation, particularly as declaimed in his majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) and in his concurring opinion in Citizens United v. Federal Election Comm'n, 558 U.S. ___, 130 S. Ct. 876 (2010)
  • The set of Hirabayashi v. U.S., 320 U.S. 81 (1943) and Korematsu v. U.S., 323 U.S. 214 (1944), contrasted with U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013).
  • The meaning of the word "author" in 17 U.S.C. § 201(b), contrasted with the meaning of the word "author" in the enabling constitutional provision (Art. I, § 8cl. 8)
  • The meaning of the word "parody" in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) as interpreted in Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
  • The general judicial refusal under "rational basis" review to consider only what a legislative or executive actually considered as reflected in the contemporaneous record, but instead consider what it might hypothetically have considered, as a valid rationale for an action or provision challenged as "unconstitutional"

Your response should include specific examples and counterexamples from both legal and nonlegal sources. Your answer may not exceed 1,250 words (approximately five double-spaced pages) excluding citations.

30 August 2014

Astroturf™: A Modest Proposal

Well, I'm stuck in California, where there's a severe drought in progress that, in reality, shows little chance of abatement (despite hopes for potential relief this fall from El NiƱo). It's gone so far that even the California legislature has noticed and actually done something, even if it's very much a case of trying the close the barn door after the horses have left. And the barn has burned down.

Indian Wells, California, golf courseBut it's worth taking a closer look at a photograph I might have used to illustrate that story on the legislature taking some action. One would think it would be illustrated by farmland, perhaps a wasteful wide-cast irrigation system running in the heat of the day (when even more water will be wasted through simple evaporation... and the plants may be harmed through lens effects from water droplets). But as noted, the legislature has at least begun to address part of that issue. Without addressing another issue:

Why the hell don't we demand that golf courses convert to Astroturf™ and eliminate their "water hazards"?

Is it, perhaps, that golf is such a preserve of upper-class and upper-middle-class white men that we can't regulate their bloody leisure activities? And for those who would claim that golf courses are "parks" and/or "nature preserves," just try having a picnic on a fairway; or testing the runoff from a golf course; or finding a natural habitat that consists of bloody lawn cut to a uniform height without ever being allowed to go to seed. And if you've ever seen water-consumption figures for a golf course — such as, say, the course on Andrews AFB, DC, frequently played by Congresscritters and Presidents — you'll begin to wonder just how many of the purported 17,000 jobs that might be "lost" through California's groundwater regulation might be "saved" if the water expended on golf courses was reallocated to those lower-class and lower-middle-class agricultural activities in the Central and Imperial Valleys, with all the women and children and melanin-enhanced people who hold those jobs benefitting from the reallocation.

Besides, there's always Astroturf™ as an alternative for golf courses. It can even be Astroturf™ designed to retain more groundwater. There won't be issues with divots any more, either. Neither will anyone be able to whinge about inconsistent mowing... or the groundskeepers getting in the way of spoiling a good walk. Golf isn't exactly a high-impact-on-the-knees "sport," either, unlike (say) football of any variety. Given the heavily Heffalump-leaning demographic of golf "enthusiasts," it seems that imposing Astroturf™ on them would be fitting for other reasons, too...

So that's my modest proposal and modest contribution to the groundwater debate in California.