Mathematically Challenged

One of the great mysteries of life is how seemingly intelligent people become mathematically challenged when presented with big numbers. Today, we'll take a look at the "success" of POD vanity presses. Both of them attempt to impress with large numbers of titles and copies in print. However, some very simple math shows that these same numbers only reveal the futility of their business model for the author who expects "publishing success" from their services. We'll leave the blatant lies that appear on their websites and marketing materials for another time. Well, most of them; this one is just too juicy:

Is this vanity publishing?
No. Vanity publishers will charge you thousands of dollars to print box loads of books they will not help you sell. Xlibris does not require you to purchase any books. Also, since vanity publishers use the printing technology of traditional publishers, their costs are inherently high. Xlibris uses modern computer technology to keep costs down, freeing up resources to provide a wide array of services. Vanity publishers provide a one-time service.

http://www2.xlibris.com/faq/faq_aboutxl.asp#vanity (retrieved 29 Apr 2004). Note that this redefines "vanity publishing" essentially as "something other than what XLibris does." Contrary to the assertions in this passage, the test for whether a particular transaction is vanity publishing does not depend upon the magnitude of the charges, requirements to purchase books directly from the publisher, use of "traditional" printing technology, or the phantom distinction between one-time and "continuing" services. Whether one is dealing with a vanity publishing operation depends on the answers to two, and only two, questions:

1. Is the guaranteed direction of money flow, excluding speculative future sales, on the date that the first copy comes off the press, away from the author?
2. Does the publisher own the books as they come off the press (as opposed to the author)?

If the answer to both of these questions is "yes," then it is a vanity publishing operation; the other factors noted in XLibris's description merely describe just how bad a deal it is. XLibris's major competitors are no better; their statements aren't as well-written, though.

Returning to mathematical challenges, though, consider these sales figures and a few simple calculations:

Vanity POD Publisher	Titles	In Print	Mean Per Title	Resulting Royalty	Base Fee	Breakeven
AuthorHouse	>20,000	1.7 mil	85	$408	$698	146
	Assumes a 250-page 6x9 softcover sold at $16 for 30% royalty under the "standard" publishing agreement, meaning no bound galleys, no cover proofs, no marketing support, no corrections, no copyright registration ($150 for a $30 service), no Library of Congress Catalog Number (without which no library sales), no shoes, no shirt, no service.
XLibris	10,300	1.3 mil	130	$520	$500	125
	Assumes the "basic" level of service with no add-ons, meaning no bound galleys, no cover proofs, no marketing support, no corrections, no copyright registration ($150 charge for a $30 service), no CD-ROM backup. The book in question is also at $16.

I won't bother with more: they're even worse deals!

Too many people let their eyes glaze over when they see "1.7 million in print" and forget to divide by the number of titles. Further, that vastly misstates the experience of the median title, as opposed to the mean title. Just as with traditional publishing, only a few books garner a disproportionate number of sales (maybe the authors' families were just that much larger?). For example, XLibris's per-title median appears to be between 70 and 75 copies, resulting in a royalty of $300 or less—and that's assuming that every single sale is a full-royalty direct sale.

Today's "unintentional irony" award goes to the Supremes. Compare Vieth (2004) (PDF, 1.75mb) (partisan gerrymandering is not justiciable) with Bush, 531 U.S. 98 (2000) (partisan-like, outcome-determinative decision on counting votes). At least they're consistent. Consistently off the wall, but consistent nonetheless.

Just a few random observations—

• Apparently, President Clinton doesn't need an editor, or perhaps even a proofreader. A little examination of the calendar demonstrates this. For simplicity's sake, let's say that My Life released eight weeks from today. Four weeks of that is in production—for 1.5 million copies casebound, plus shipping to stores, one just can't do better (or at least not much better) than that. That leaves four weeks for editorial suggestions, the author's response, review of the author's response, layout, proofreading the layout, integrating the author's own proofread, etc. Perhaps this can all be done if the book is done in "parts" (and the material that has already been turned in has already gone all the way through). It won't be a very good quality job, though, as a good edit does not even begin until one has read the manuscript all the way through at least once. I'd start a contest for "most hilarious error not ascribable to spin," but that would be shooting big fish in a little barrel.
• European competition law often presents an interesting contrast to American competition law, especially when competition and intellectual property overlap. The Advocate General's office offers advisory opinions to its members' national courts on "difficult" questions. West Publishing should be glad that the opinion in IMS Health v. NDC Health doesn't represent the law over here, or its monopolistic position and practices on case law and statutory compilations in this country would disappear. <SARCASM> What a shame that would be. </SARCASM>
• As an interesting contrast to yesterday's Supreme Court hearing on international application of US antitrust laws, consider a not-quite-published-yet WTO ruling on cotton subsidies. What I find most interesting is that traditional jurisprudence for personal jurisdiction over a tortfeasor—the stuff one actually learns in conflicts of law, as opposed to the whitewash in 1L civil procedure—makes the WTO's opinion obvious. Thus, we have yet another variety of "tort reform" at issue…

To Market, To Market

Professor Ribstein noted yesterday that the Wall Street Journal is somewhat selective in its approval of market forces.

All of this points to a more general problem with the right. Government is bad and markets good when government wants economic regulation the right doesn't want. But government is more likely to be good and markets bad when the subject is regulating values. (There's analogous problems with arguments about state law — apparently good for everything but marriage.)

"Decency and Markets." Professor Ribstein expressed disdain for recent WSJ editorials on "decency" in broadcasting. I can think of little that is more indecent than leading the news hour during before-and-after-school drive time with the latest bloody murder of someone by a non-white, but I apparently don't get a vote on defining "decency." Then, too, reading the lips of most of the players during major parts of the Super Bowl—or, indeed, virtually any other televised sporting event—is usually far less "decent" than was the flash of Janet Jackson's mammary while the kids were probably getting snacks anyway (Janet Jackson's prime audience is not the teenybopper set, and her "co-star" is a "has been").

There is another, more subtle, aspect of this neoconservative/social conservative/call it what you will selectivity of acceptable market regulation. If one takes a look in the broader sense at regulation, one can see the real difference between the postmodern right and the semimodern left: The only regulations that the right will consider as appropriate are those that have no influence on wealth distribution, or at worst have only a neutral effect. However, the postmodern right is actually pretty pro-regulation for those kinds of regulations that meet this criterion. Frequently, these are socially conservative issues, like "broadcast decency"; sometimes, they are downright loony and offensive, like the "alternatives to evolution in basic science education" advocacy. On the other hand, the regulations that the semimodern left has and continues to propose usually neglect to consider wealth distribution. This causes the left a great deal of difficulty when it must confront arguments that are orthogonal to its intent; and it creates more than a little confusion regardless.

One classic example of this failure to communicate—although it arises from an earlier era—is the Lochner regulations. The regulations were adopted to protect the health and welfare of employees in the baked-goods industry by limiting hours, both per day and per week. As laudable as this goal is, and as actually good for the manufacturers as this is in the long run (because it limits the higher retraining costs of replacing workers who are "worn out" earlier than they might otherwise have been), this kind of regulation has a pretty clear potential for influencing wealth distribution. Thus the firestorm against such regulation that culminated in Lochner itself.

The marketplace of ideas envisioned by the First Amendment has a simple nonregulatory correction for "bad speech": more speech. Drown out the "bad" speech with "good speech," and recognize that some "consumers" of "speech" will not be "rational actors" as the majority understands that term. One can construct a compelling argument from the premises behind the Intellectual Property Clause and the First Amendment that the Constitution does not condone regulation of speech and "expressive acts"; that any such regulation must come instead from the Necessary and Proper Clause; and, in turn, that the Necessary and Proper Clause must reflexively be read in the context of the Intellectual Property Clause and First Amendment. The Cromwellian subtext is that the majority, in this case the "pro-decency" faction, must recognize in its bowels that it might be wrong, and that its arguments (and speech preferences) must convince of their own merit—not by suppression of differing views. Then, too, there's the not-so-subtle political context of the Comstock Act and its modern descendants, largely designed to maintain political and economic power in the hands of constipated old white men of good families. But that is for another time.

A Circuit Out of Touch

One of the Federal Courts of Appeals is clearly out of touch with the others, primarily because it has adopted an extremist view of the Constitution and statutory and constitutional interpretation. I refer, of course, to the Fourth Circuit.

"The Fourth Circuit? Don't you mean the Ninth?"

Wrongo, Miranda-breath. Few cases indicate how out of touch the Fourth Circuit is better than its most recent decision in the Moussaoui carnival. Admittedly, some of the details do favor Moussaoui, such as requiring that the government grant at least some access to potential defense witnesses being held overseas. At its core, though, the opinion represents both blind deferral to insupportable government assertions, see id. at 17–19—such as the outcome-determinative bare possibility that Moussaoui's closely supervised questioning of detainees held overseas might "interrupt" interrogation two-and-a-half years after the incident in question—and refusal to defer on factual and discretionary findings to the one individual who is both tasked to and in a position to evaluate the credibility of the parties and testimony presented: Judge Brinkema, who is valiantly attempting to run her courtroom fairly despite the efforts of everyone involved.

To say the least, this is inconsistent with Padilla. The only reference to its sister circuit, in fact, is this:

We lack the record evidence of Secretary Rumsfeld's personal involvement that the Padilla court found persuasive. Nevertheless, the Government argues that the witnesses are of vital import to the war effort and to national security. Under these circumstances, it is reasonable to believe that Secretary Rumsfeld is closely involved in their detention * * * *.

Id. at 12 (ellipses in original; emphasis added). Note that this does not even go to the actual holding in Padilla. Nowhere in this decision can one find acknowledgement that the holding in Padilla would require vastly different reasoning, and perhaps even a different result, than the Fourth Circuit reached. What is most disturbing, though, is that "reasonable to believe" is even being mentioned in a death penalty case, even on the relatively trivial issue of whom to serve with process.

Perhaps we should just be relieved that Judge Williams's partial dissent was not the majority opinion:

[M]y colleagues' approach impermissibly jeopardizes the security of our Nation and its allies by intruding on the Executive's ability to perform its war-making, military, and foreign relations duties. Holding that defendants have a right to compulsory process of any alien held abroad in United States custody and control disrupts the proper balance between the coordinate branches. If access is granted, it is undisputed that the Executive's interest is irreparably lost, with the attendant consequences to the multinational efforts to combat terrorism on a global scale.

Id. at 40 (Williams, J., dissenting in part). Of course it is undisputed! The point of Moussaoui's motions and position is that he can only speculate on the testimony of these witnesses, only speculate on how obtaining that information might (or might not) impinge upon "continuing interrogations," without the opportunity to examine them. This is startlingly poor logic: it assumes its conclusion as a necessary premise. Even Chevron does not go this far!

None of this is to say that I am convinced that Moussaoui himself is an angel, that his defense has been wisely or even properly conducted, or that some persons peripherally connected to the actual interrogations might harbor fears as to "interference" with allegedly ongoing interrogations. To be just, though, we must not only provide a just result: we must provide a just process that presents the real appearance of justice. Judge Brinkema's implicit compromise—no direct testimony by potential defense witnesses means that the level of certainty required to impose the death penalty cannot be attained—received little attention, let alone cogent analysis. Perhaps she should have been more explicit that this "compromise" is the basis for her ruling—for then it clearly would be a discretionary ruling. Instead, she refused to conduct a trial in anticipation of a first-class hanging; and, under the Constitution, that is her job. The key belief is not, or at least should not, be that of a "reasonable person" (or appellate judge) reviewing the paper record; it is, or at least should be, that of the jurist charged with implementing the decision and conducting the matter in the first instance. If Judge Brinkema can "reasonably believe" that the government's negotiating posture and tactics have made impossible a compromise on witness access and statements that adequately protects the defendant's rights, that should be all that matters. Judge Gregory's closing paragraph is persuasive:

Here, the reliability of a death sentence would be significantly impaired by the limitations on the evidence available for Moussaoui's use in proving mitigating factors (if he is found guilty). Although it has been repeated often enough to have the ring of cliche, death is different. It is the ultimate penalty, and once carried out, it is irrevocable. A sentence of death cannot be imposed unless the defendant has been accorded the opportunity to defend himself fully; it cannot be imposed without the utmost certainty, the fundamental belief in the fairness of the result. Because Moussaoui will not have access to the witnesses who could answer the question of his involvement, he should not face the ultimate penalty of death. Accordingly, I would uphold the district court's sanction to the extent that it struck the Government's death notice. On this basis, I must dissent.

Id. at 63 (Gregory, J., dissenting in part; italics in original). Note that this goes only to the particular penalty that may be imposed, not to the government's ability to prosecute.

The Writer's Couch

Just to show that Hollywood and entertainment-industry insurance companies are at most peripherally related to the human race, consider this possibility. A woman is fired from the production staff of a really awful, really popular, really long-running TV sitcom involving young adults in purportedly realistic situations that invariably boil down to sex. This being America, she sues for sexual harassment. The producer, head writer, and production company (or, in reality, the lawyers for their insurer(s)) offer the defense that certain kinds of sexual harassment are a necessary part of the creative process, claiming further that this is a complete affirmative defense. What result?

How about a split baby? Obviously, the courts in question needed to consider a more-effective method of contraception.

The trial court bought the argument in toto, granting summary judgment against the plaintiff. The California Court of Appeals reversed on its face, but allowed the defense to be presented at trial. In other words, the defense is not ridiculous—there just wasn't enough evidence for it to justify summary judgment.

Millions for defense, but not a dime for tribute. Besides, "we're special." <a snd="raspberry.wav">Snort</a>

Left Behind

The "No Child Left Behind" program reflects considerable economic ignorance to go along with its substantial political cynicism. On the one hand, it ignores the concept of the diminishing incremental return. As the focus changes from "as many as superhumanly possible" to "absolutely everyone," the additional human and financial costs per student of helping those least able to meet arbitrary standards (usually set by people who have no idea of what they're doing, either in what or how they are measuring) will vastly exceed the costs per student of meeting other children's needs to fulfill their potential. As usual, so-called "talented and gifted" programs will be the first to go—not the football team. (Aside: at the local Division I university, the head coach makes more money than the three highest-paid professors. Combined. And he was 1-10 last year.)

On the other hand, one of the assumptions behind NCLB is that resources available to public education will not grow relatively, thus requiring triage for the conditions specified in NCLB. This seems remarkably short-sighted. What NCLB essentially does is say that "you don't have enough resources to do your mandated tasks, so we're going to tell you what your priorities must be instead of considering allocating more resources." In the meantime, we're busy giving dubious tax breaks to secondary commodities trading activity when the representative volume of that activity exceeds the value of the underlying commodities, and various other questionable priorities based on special interests.

Perhaps this is unavoidable. American public education is extremely hostile to high achievement; one need only realize that all of the teachers are college graduates, many with graduate degrees, but virtually none of the teachers still in the classroom ten years after beginning were themselves true "high achievers" before college. Just how many National Merit Scholars, to use one imprecise measure, end up as career classroom teachers? Without that perspective, the soldiers in the trenches simply don't know what it takes to "educate" the "talented and gifted". Or even accurately identify them.

The sum of this idiocy and disdain will be a completely disaffected generation of artists and writers in fifteen years. In their late twenties and early thirties, they'll still remember middle school and high school—without much fondness. Assuming, that is, that they were ever able to develop their skills to a level adequate to compete with those from elite schools that did provide some support. The disdain expressed for their needs will, in many (and perhaps even most) instances, result in art and literature that reflects disdain for others.

Wait a minute; we've already got that. Those in the public education system between the late 1960s and early 1980s are reflecting exactly that result.

It's Still Not Painless

Something that a great many attorneys (let alone journalists) forget is that many, and perhaps even most, of the major "liberal" decisions from the Supreme Court in the last half century have only enabled litigants to have a losing day in court. As a recent example, consider Jenkins v. Heintz, a major consumer protection case from the 1990s that held that an attorney could indeed be treated as a "bill collector" under the Fair Debt Collection Practices Act; the attorney's status as an attorney did not create immunity. If one looks at the post-Supreme Court history, one will find that the consumer eventually lost the claim, and indeed the entire case. Consider that issue in the Gitmo context for a moment.

Regarding Gitmo, the Perfesser opines that:

My bet, by the way, is that the Court will rule that US courts have jurisdiction. And then we'll get some left-liberal judge (probably on the 9th Circuit) deciding to let the terrorists go.

As I've remarked before, the "suicide pact" aphorism doesn't mean what many commentators would have it mean.

[Kennedy v.] Mendoza-Martinez[, 372 U.S. 144, 160 (1963)] is a draft-dodging case—at least, on its face. The defendant was a naturalized US citizen who evaded the draft in 1942 by going to Mexico until 1946 (according to the colloquy in his guilty plea). After his conviction, the government stripped him of his citizenship and deported him. The case is really about the concept of estoppel—that is, one cannot argue against the result in a prior case that went against one, so long as the issue was (or could have been) fully and fairly tried in the prior case. Yes, that's a mouthful. Consider it in the context of a teenager trying to borrow the car. If the teenager asks Mom to borrow the car, and she says "No," the principle of estoppel would prevent said teenager from walking into the next room and asking Dad to borrow the car. He would be estopped from arguing against the result when he asked his mother (assuming, of course, that Mom and Dad have equal authority over the car). But what if he wanted to use the car to go take a college admissions test, and his mother just said "no" without listening to the substance of the request? Wouldn't that justify asking Dad to consider it anew? Probably not, because he could have at least gotten his reasons before Mom for her to reconsider her decision. Mendoza-Martinez is not really about civil liberties, but about civil procedure. Citing this language in support of deprivation of civil liberties is at a minimum removing it from context. (And the context in which Justice Jackson was using it—another case turning on civil procedure, not civil liberties.)

Post of 18 December 2003.

I find the assumptions underlying the Perfesser's concluding paragraph rather more disturbing. Leaving aside the merits of the "suicide pact" argument for the moment, what does that paragraph imply? First, that the individuals in detention are all terrorists, which seems to me disproven by the release of several UK citizens in the last few weeks. Second, that if the cases are heard in front of US courts, they cannot be proven at the preponderence-of-the-evidence level. Remember, these are the equivalent of habeas corpus petitions: All that the government need do is show probable cause for detention. We can worry later about meeting the reasonable-doubt standard required during an actual trial; presumably, a fair number of cases will be plea-bargained away in return for cooperation or dropped entirely, so we don't even know whom to try yet (assuming a positive answer to the first concern). Third, and perhaps most disturbingly, the Perfesser implies that left-liberal judges will allow their doctrinal preferences to overcome the evidence presented. I could make the same presumption about right-conservative judges and consumer-protection or civil rights lawsuits… except that I've never seen that in practice (not for lack of opportunity). There are enough levels of judicial review that the chance of getting a "liberal" district judge, probably after a hearing in front of a "liberal" magistrate judge, reviewed by a "liberal" Court of Appeals panel, followed by either a denial of certiorari by the Supreme Court or "liberal-dominated" decision there, is vanishingly small—and the chance of all of them allowing doctrine to overrule evidence is even smaller. Anyone who wants to pretend that one "political predisposition" is less or more likely than any other to impose its doctrinal preferences on cases before it has the burden of coming up with some evidence to that effect.

Evidence. The presentation thereof. I thought that's what this whole process is supposed to lead to, for everyone involved. My bet is that the Supreme Court will, by a plurality, find that there is indeed jurisdiction in Padilla and Hamdi, but that the government will either decline to press matters and release them pending trial (citing "national security concerns" that "prevent" it from presenting evidence—some of which may be valid, but some of which will not) or win at the hearing by proving probable cause.

On the Meaning of Treason

(I offer no apologies to Dame Rebecca West, although the context should give one pause.) In the last year or so, a trip to a chain bookstore—especially in a mall, and even including Zondervan (the "Christian" chain controlled by HarperCollins)—has resulted in an assault on the eyes with badly designed book covers trumpeting the personal opinions, and indeed hegemony, of some really disturbing right-wing ideologues. Perhaps foremost among them in intellectual dishonesty—and that's some pretty stiff competition—has been Ann C0u1t3r. The title of one of her books accuses all liberals of being traitors.

Leaving aside the hyperbole inherent in setting a book's title—over 80% of the trade books published each year are not published under the author's title at the time of submission—what does this really mean? My immediate reaction is to recall Richard Nixon ("…opposition in this country is the single greatest barrier" to "winning" in Vietnam) and McCarthyism in general. Without denying the validity of that impression, though, there are three much deeper issues.

1. Opposition does not equal treason. The strict definition of treason is far more complex than mere opposition, or even political and other efforts that happen to support violent opposition to a nation. Instead, a traitor is someone who not only intends a specific regime change through non-legitimate means, but acts upon it to the detriment of both particular policies and the integrity of the system. That does not necessarily mean success; but it extends far beyond public discourse and civil disobedience. Without dissent, there is no room for art. Professor Cass Sunstein (University of Chicago) discussed the necessity of defense last year in the Oliver Wendell Holmes lectures at Harvard Law School, which were recently published as Why Societies Need Dissent. Orwell conceptualized this a half century ago, even if the vocabulary of "thoughtcrime" and "doublespeak" has been so thoroughly corrupted by those seeking rhetorical advantage that he wouldn't recognize it.

   At a more fundamental level, isn't some level of opposition inherent in a democratic society? How, then, does one determine that opposition has "gone too far" when it has not seized power? As Oliver Cromwell once asked the Prebyterian leadership of Scotland, have they considered the possibility that they might be wrong? It should surprise no one that none of these books appear to have considered what "treason" means; the rhetorical advantage of painting one's opposition as disloyal was too tempting.

2. The most obvious corollary of the opposition to dissent inherent in these views—even dissent from what appears to be a minority viewpoint, regardless of claims to be the "Moral Majority"—is bivalued logic. "If you're not with me, you're against me." That these disputes over proper values and policies can exist at all tends to prove that there are, in fact, shades of grey inherent in the argument itself. This is the same approach used by proponents of "creationism"/Inscrutable Design to attack evolution: If evolutionary theory, which on its own terms admits that it is incomplete both in method and in evidence, cannot perfectly explain every aspect of life on Earth, it must therefore be discarded in its entirety, and may be replaced only by a theory of divine creation of life (in varying levels of rhetorical shrillness and deception). Yeah, right.
3. The form of argument is itself a slippery bit of hypocrisy. Consider, for example, their usual target: The so-called "liberal media." Leaving aside whether such a thing exists—it doesn't, except in the fevered imaginations of ideologues; see, e.g., Fox News—apply the logical methods used by C0u1t3er et al. to their own writings and context. If they are so much in the right (pun intended), then why do they need to write these books? A self-evidently true dogma would need no such exegesis, even in the face of deception from opponents. Such deception can't be maintained for the century or more that forms the necessary predicate for such an argument—particularly not in a society with even lip service toward "freedom of the press." The dogma is therefore something less than self-evidently true (note that I did not say "false"). If it is less than self-evidently true, it must be tested by comparison to other dogmas and theories. That comparison, though, must be based upon evidence, and not upon supposition—or we end up again with Copernicus v. Galileo. Eventually, somebody will realize that "it does move;" the question is how many must be sacrificed to maintain orthodoxy.

The subtitle (although not, surprisingly, the content) of Nat Henthoff's book Free Speech for Me—But Not for Thee hints at the real objective: How the American Left & Right Relentlessly Censor Each Other. The objective is more to drown out opposition than vanquish it. The irony that the "target" of this criticism both provides the platform for their own rhetoric and simultaneously makes that rhetoric inadequate to the task seems to have escaped this set of ideologues—as it has escaped every other advocate of totalitarianism in history. This implies a great deal about the problems with consolidation in the media and publishing industries; but then, Malthus has never been taught to MBAs.

As a sideline to the kind of things covered in this blawg, I also try to keep track of developments in expert-opinion evidence. This is not, of course, limited to "traditional science"—valuation experts are critical to many kinds of cases, and seldom does one find a music copyright infringement case in which similarity is at issue that does not include several experts. Increasingly, too, experts are becoming necessary in the non-IP ancillary areas of publishing, such as determining the reasonable value of profits lost to a breach of a publishing contract. Conversely, there are a lot of experts out there whose opinions have been "valued" that should not be, particularly on generalized economic issues. (Sorry, guys, but economics does not have sufficient indications of widespread standardization for most of the "calculations" made in its name.)

In any event, rather than keeping all of that to myself, I'm going to contribute summaries of Illinois state-court decisions on expert opinion evidence (commonly called "expert witnesses"—but the witness is only half the battle) to Blog 702, the blawg part of Daubert on the Web, the small-firm litigator's best chance to avoid malpractice (not to mention serve his or her clients better). Many large-firm litigators and transactional lawyers should refer to it, too, if only to see what they're up against.

Double-Edged, Super Blue

(Two meaningless points to the person who can name the novel and movie, and cite the context, from which I drew that line.) In an astounding display of partisan and historical ignorance masked by lip service to the past, Stuart Taylor has again gotten things wrong concerning the "wall" between intelligence and law enforcement (N.B. This link will expire after today, thus the following quotations.) On the one hand, he says

The wall was one of many pre-PATRIOT Act surveillance rules adopted during the post-Nixon, post-J. Edgar Hoover era, back when many of us feared government spying more than we did terrorist massacres. These rules were not responsible for all, or even most, of the government failures that left us exposed to 9/11. But they do help explain some of those failures.

(emphasis in original) He then concludes that

Such are the alarums of those who have not learned from the past. Let's hope they are not condemned to repeat it.

I am not exactly ancient, but I do remember the era of J. Edgar "Pink Tutu" Hoover. And Watergate. I've studied the Tonkin Gulf Resolution, the My Lai incident, and the Pentagon Papers matter in detail, including reference to source documents (not just after-the-fact secondary sources) for the first two. Mr. Taylor's article reflects itself failure to learn from the past—and from the present. As I've both implied and remarked before, the problem is not with "the wall," but with the nature of the agencies in question. The FBI is a post hoc agency—its people, information sources, main mission, and organizational culture are built around solving a crime after the fact. To say that this is ill-suited for preventing potential, but far from certain, crimes in the future without turning political opponents like MLK Jr. into "enemies of the state" (that is, commies) is understating the obvious. There is a similar problem with the NSA, CIA, and other intelligence agencies: their people, information sources, missions, and organizational cultures focus on obtaining information outside the US for use in future decisionmaking.

Just about anyone should be able to spot the problem—one that, in a structural sense, the UK solved a long time ago, if not perfectly (just ask the Birmingham Seven): counterterrorism requires both domestic and foreign gathing of information for immediate use and immediate use in preventing atrocities. Bluntly, giving counterterrorism (and, in a broader sense, counterintelligence) to the FBI, CAI, NSA, et al. is like asking an orthopedic surgeon to deal with a suspected brain hemorrhage. However competent an orthopedic surgeon he is, and however much he remembers from medical school, his experience in real operations just doesn't translate. This is particularly true when the surgeon is asked not just to operate on a known condition, but to diagnose the condition in the first place.

Mr. Taylor's critical error was in himself not learning from the past. The history of law enforcement everywhere, including this country, is littered with misuse of law enforcement powers—sometimes purposefully, sometimes with all the "good faith" one could expect—for the purpose of suppressing dissent and opposition. The history of the labor movement in this country alone should be fairly conclusive. It's not all just something from the past, either; the impulse to suppress labor movements should have been obvious at that time to anyone who had even read the Alien and Sedition Act. Succumbing to tyranny only proves that those who accuse the US of being an imperialstic monolith are right (or at least increases their justification). The problem is not with the walls themselves; it is that there is nothing on the other side of them.

We now return to our irregularly scheduled programming…

The publishing industry has been unusually quiet of late; almost everything that is "news" has revolved around warmed-over feuds between authors and such. Instead, everything has been about "who knew what when and how" over Iraq, al Q'aida, Afghantistan, etc. That is not to say that the latter is an unimportant inquiry, even though there is so much spin from everyone that discerning the "truth" is well-nigh impossible. It is only to say that April and May tend to have a lot of announcements (relatively, that is) of moves concerning high-profile editors from one publisher to another, and high-profile authors from one agent or publisher to another. Now that I've said this, no doubt there will be five or six this coming week!

A couple of interesting items in the news today (I am not commenting at all on the "press conference" last night, as I'm too disgusted with just about everybody involved).

• A sad and yet fascinating—if you're as morbid as a lawyer or an author—review of a recent book on "authors' worst moments." The kinds of books I've done don't result in readings or invitations to publishers' cocktail parties, so I have little first-hand experience…
• As further proof that Gordon Gecko is alive and well in the telecommunications industry, big DSL providers are busily jacking up their rates by attempting to recover the "Universal Service Fee" from DSL customers—all the while forgetting that, since DSL comes over telephone lines, the customer already pays the fee on another bill. The USF does not subsidize DSL in rural communities, but only basic telephone service. Thus, if I ever go to DSL from SBC, I'll be paying three USFs—one on the telephone service, one on the long-distance service, and one on the DSL service. Am I ever happy about that.

OK, one comment on the "press conference" last night. I think that everybody came off looking bad. George II looked unprepared and unwilling to admit to ever having made a substantial error. The press came off looking as if they want him to tell them when he stopped beating his wife, instead of trying to determine if his wife had been beaten in the first place, and if so who had done it. The broadcasters came off as morons for running it opposite today's staff summary report from the 9/11 Commission on C-SPAN; one or the other should also have offered a later, perhaps 9pm EDT or so, rerun. But nooooooooooo…

Shut Up, You Bloody Vikings!

A short history of spam (note the absence of a trademark symbol). It's not perfect, but it's close enough for government work. And doesn't it just figure that something so destructive came (at least in the "popular" sense) from lawyers?

Amusement

Just because I'm a really sick SOB with a grim and merciless sense of humor, I offer the following for the bleary-eyed on Monday morning:

• John Scalzi describes the publishing industry from an author's point of view in his usual slightly warped, but highly accurate way.
• Remember that total eclipse of the sun? (MPEG, 1mb) Do not drink any beverages while watching this; I take no responsibility for damaged keyboards and/or nasal membranes if you do. You have been warned. P.S. Yes, I really do hate cats; and I have dissected one.

Conflation

I am really getting tired of the current argument about Inscrutable Design v. evolutionary theory in the public-school science classroom. The ID proponents have succeeded in moving the debate away from education to "fundamental value." An excellent example of what has happened is over at Stuart Buck's website:

In short, we might distinguish between several varieties of belief here:
1. Scientists collectively and historically decided a priori to adopt methodological naturalism, without ever having seen any evidence as to how it works. This view is possible, and it seems to be what Leiter and Myers thought they were refuting.
2. Individual scientists working today begin their analyses of any new problems by having defined "science" as excluding supernatural possibilities. Collectively and historically, they have adopted this method because it has worked before. In that sense, it is a posteriori. But as to any new problem, supernatural solutions are ruled out from the start. In that sense, it is a priori. While one can quibble over the definition of a priori, even a generous interpretation leads to the conclusion that this is how most scientists behave, and I can't see why any sensible person would disagree.
3. Individual scientists working today do not rule out any possibilities whatsoever. If there is evidence for the supernatural, so be it. There may not be any such evidence, but that is purely a contingent matter. Whatever the evidence shows is where we should go.… This view is not often claimed by scientists.

"More on Leiter" (09 Apr 04) (typography corrected; my boldface emphasis).

Leaving aside for the moment the serious logical problems and indefensible factual basis here—the two bolded assertions are the opposite of my experience as a science student and in conversation and engagement with scientists—notice that this discussion concerns only the "correctness" (or, more properly, "validity") of Inscrutable Design as a philosophy. Also leaving aside the distinction between proximate cause (explainable thus far only through evolutionary theory) and first cause (illuminated by, but not adequately explained, by current evolutionary theory, and perhaps illuminated by, and definitely not adequately explained, by Inscrutable Design), note that the argument never engages with pedagogy in public schools.

Math is often invoked as a "language" of sorts for the sciences. So, then, what does mathematical education tell us about how to teach science? Well, for starters, one doesn't get into imaginary numbers, non-Euclidean geometry, stochastic processes, and so on until very late in high school if at all. Instead, these advanced concepts, which are certainly "real" in the sense that they have immense impacts on the world we live in—for one thing, the solid-state electronics that you are using to read this depend on imaginary numbers—are reserved for later. In basic high-school math, one lives by the parallel postulate.

Similarly, the distinction between classical and quantum physics is not an issue until after one completes the first year of college-level physics. (Yes, it is referred to in college-level freshman chemistry, but one must pretty much take the physics on faith when studying basic analytic chemistry—irony intended—and in any event the descriptive nature of the material does not require students to use quantum physics.) Does the fact that quantum physics is not taught until later mean that concentrating on classical physics excludes the "religion" of uncertainty from the classroom? Of course not.

The real problem is that one is not prepared to consider first cause until one has an adequate grounding in proximate cause. Inscrutable Design attempts to conflate the two, but it cannot, for a very simple reason: Nothing in anything Inscrutable Design has ever asserted can explain the "evolutionary" trends one can observe in even recent history, such as the mutation of HIV and the annual struggle to figure out what goes in this year's influenza vaccine. At least at the highschool level, a science class is working with students struggling with the concepts of proximate cause and the evidence necessary to reason from it. Inscrutable Design would be a pedagogical nightmare, similar to trying to teach French and German in the same classroom to students with no prior familiarity with either. That is not to say that a high school can't teach French; it just can't hope to do so effectively in a German classroom without seriously harming the teaching of both. <SARCASM> I can just see a mandatory warning sticker in German textbooks to the effect that German designations of gender cannot be considered definitive because German includes a "neuter" gender not included in French. </SARCASM>

If one wants to teach Inscrutable Design in the context of US history, or a basic course in philosophy, so be it. Under no circumstances, however, does it belong in a high-school-level science textbook. Whether one considers the boundaries between the various disciplines to be valid or not—for example, much of modern biology would have been considered chemistry at the start of the twentieth century, and in turn much of modern chemistry would have been considered physics—those boundaries have proven useful in beating the basics into the heads of reluctant students. Without the vocabulary and knowledge base provided by "traditional" science education, students are not prepared to evaluate Inscrutable Design, or evolutionary theory, or anything else.

And that is precisely the problem: Inscrutable Design proponents don't want a comparative evaluation. The ID movement instead seeks to substitute faith for reasoning. Whether science offers a complete explanation of all that is in the universe is open to question; that current scientific knowledge does not is admitted by science. Requiring a method of reasoning that itself holds that its knowledge is incomplete to either offer a complete explanation of everything or be rejected in its entirety is the same kind of "black and white" argument that underlies miscegenation statutes. Understanding ID may be useful to some in understanding the complete context of the world; for example, one simply cannot understand what was really going on in the Scopes Trial without at least some understanding of creationist theory, and the obvious hypothetical from there can create useful classroom discussion in a history classroom. The real question is whether trying to teach these beginning ice-skaters how to do a triple Axel, when they have not yet mastered skating backward, is sound pedagogy. The answer is pretty obvious if one's objective is to actually educate individual minds; unfortunately, it is also pretty obvious if one's objective is to indoctrinate unthinking robots, and the latter is the actual objective of putting Inscrutable Design in the high-school science classroom.

Believe it or not, there is actually a publishing-law corollary from this material; it will need to wait for another time.

Too Important to Be Left… or Right…

Dr. Rice has definitively demonstrated that she is too ignorant of the military planning process to be appropriate as the National Security Advisor. Her testimony this morning, concerning "pre-9/11 plans", focussed on the purported "lack of context" to military plans that made them inappropriate and required her and her staff to give substantial redirection, especially on "regional context." That statement indicates to me that Dr. Rice has never herself read a regional command's contingency plans, and does not understand how individual plans are put together into a package to create an operations order. Dammit, there is a preamble concerning the assumptions on political context in every plan, and most of the major ones include a full annex concerning the then-present political situation and how changes in it might influence creating an operations order from the plan. The whole point of most military contingency plans, such as the "62" plan that she derided as inadequate, is that they designate resources and logistics for a hypothetical force employment. It's sort of like getting all the glassware and instruments cleaned up and laid out for purifying an organic compound in a solution—it's an absolutely necessary step, but one also needs to alter the setup for particular materials (such as not using a Bunsen burner when one of the reagants is diethyl ether). The plan is a baseline, intended to be adapted to particular circumstances by way of an operations order.

I am flabbergasted at what I heard Dr. Rice say this morning. If that's an example of the kind of work the National Security Advisor is doing—essentially imposing nonmilitary constraints on what is supposed to be a purely military plan that only upon need will later be expanded to an integrated operations order—then our current situation in Iraq becomes a lot easier to understand. Of course, all that Dr. Rice needed to do was walk across the street to the State Department and ask what a military plan really means, and how it becomes an operations order. Not only was Secretary Powell a high-ranking military officer… but he also served as National Security Advisor, and even if Dr. Rice disagreed with his particular advice he could at least help her understand what a "contingency plan" really means. The irony is that current officers who criticized Dr. Rice's statement could come perilously close to violating Article 88; fortunately, I am no longer subject to this provision. Further, any discussions by those with direct knowledge of the actual contents of the plans in question risk revealing classified information and capabilities. I thus expect a roaring silence from the five-sided building… even if I did not also expect Secretary Rumsfeld to summarily execute anyone who steps out of line.

None of this is to say that things were necessarily better or worse under Clinton, or under George II, or prospectively under Kerry. It is only to say that Dr. Rice's testimony—and this is just one example of several in this morning's "testimony"—demonstrates pretty clearly that the funnel that was supposed to bring information from disparate sources into the White House wasn't working properly.

Schadenfreude

The Perfesser and Professor Ribstein have written a couple of cautionary notes on what the former calls "guilt by ostentation" and the latter calls "guilt by gelt." In a sense, they have a point; however, they are looking at far too narrow an explanation. Instead, the recent attacks on the "ostentatiously overwealthy" are merely symptoms of simple schadenfreude—the joy in the travails of others "different" from outselves.

At the other end of the spectrum, this also (partially) explains why the US Sentencing Guidelines, for no reason related to drug efficacy or impurity or anything else inherent in the drug itself, provide such vastly greater penalties for the "crack" form of cocaine than "powder" or even coca leaves. Whether justified or not, there has been and apparently remains a perception that "crack" is something those lower-class-origin, melaninically enhanced people do, while most parents in white suburbia have at least heard rumors of some kid in the neighborhood doing lines. This is only one (exceptionally obvious) example. The point is that difference acts as a polarizer to the image reflected from others.

In a both less- and more-disturbing way, I encountered the same problem in the Air Force officer corps. The "differences" involved two factors: what one wore on one's ring finger ("ring-banger" = Academy graduate) and what one wore over the left breast pocket (wings or another specialty badge—or maybe even nothing at all). The ringbanger question is a truism; Academy graduates essentially start out with a 30% promotion advantage, regardless of their actual performance or capabilities. And, leaving aside the whole "rated preference" issue, performance reports for rated officers in nonrated jobs—such as a pilot who was no longer actively flying, but instead was serving in logistics or aircraft maintenance—tended to be somewhat better than even true experts in those very same fields. This was not an obvious matter, as one had to read between the lines of the reports. One might even argue that pilots and navigators are supposed to be the elite, but that doesn't wash once one looks at the precommissioning backgrounds without knowledge of rated assignment. In a sense, this is less disturbing, because after all nobody is getting killed. Or are they, if the most-qualified leaders are not getting to lead—particularly given the glee in the pilot/navigator fraternity (the male term is on purpose) at the advantages they have merely because "the system works that way"?

In any event, the Perfesser and Professor Ribstein correctly point out a variety of "difference" that allows more explicit schadenfreude. My point is that it's far from the only one; and I can think of few people more worthy of disdain than those who rose to their prominence through disdain for others. On the other hand, I'm one of those subversive liberals, too, so I suppose I'm due for my own share…

Don' Go Incorporate in Delaware, Br'er Fox!

Well, now the Perfesser will get an opportunity to see if US corporate law, and almost certainly that of Delaware, is up to the task of dealing with one of the most reclusive "public" companies on the planet. According to a report in tomorrow's Guardian, Rupert Murdoch plans to reincorporate NewsCorp in the US.

Admittedly, I relish the thought of Murdoch having to comply with SEC rules under the greater scrutiny of a US-securities-issuing corporation. I will never forgive NewsCorp for the damage it did to the UK newspaper culture in the mid- to late 1980s. Neither will I quickly forget some of the shenanigans that Fox has pulled over the last decade.

More on Inscrutable Design

The favorite argumentation method of Inscrutable Design proponents is the creation and misuse of false dilemmas. A false dilemma reduces a multivalued argument to a binary result: If not evolution, then necessarily and sufficiently Inscrutable Design is an obvious example. At the metaphoric level, this is a "if not black, then white" type of logic. Sometimes binary logic is the correct way to analyze a puzzle. "Have you stopped beating your dog?" can logically have only a "yes" or "no" answer. The usual form of that inquiry, though, is "When did you stop beating your dog?"—which does not have a necessary and sufficient binary answer. Possible answers include "I haven't stopped"; "I never did"; "last Tuesday at 11am"; "sometime last year"; "I don't have a dog"; and so on.

In any event, Professor Leiter has posted an entertaining dissection of Van Dyke violating the Second Law of Thermodynamics—the three laws are often referred to as (1) you can't win; (2) you can't break even, except at absolute zero; (3) you can't get to absolute zero, and therefore can't quit the game—to which I'd like to add a nonbinary response in support. I apologize for the long quotation.

First, Beckwith notes that Laudan, like every other major philosopher of science now alive, thinks that the "demarcation problem" that exercised mid-20th-century philosophy of science—how do we demarcate science from non-science, or genuinely cognitive domains from nonsense—cannot be solved. This now banal piece of philosophical wisdom goes no distance, obviously, towards showing that ID and creationism aren't bad science, with nothing to commend them as research programs—which Laudan clearly believes, as Beckwith correctly notes. Has VanDyke read Beckwith's book?

If so, he might have also noted that Beckwith quotes Laudan [at 25] noting that ID "is inconsistent with methodological naturalism and ontological materialism… [b]ut that fact has no bearing whatsoever on the plausbility of the arguments for ID." Why does Laudan say that? Because methodological naturalism is an a posteriori doctrine, which means if ID generated any empirical results incompatible with it—it has not, of course—then so much the worse for MN. The problem is purely a posteriori: ID has no research program and no empirical support, so it presents no challenge at all to the reliance on naturalistical explanatory mechanisms. Laudan thinks talk of "pseudo-science" is misleading in the absence of a solution to the demarcation problem; Laudan has no reservations about talk about "good" and "bad" science as measured by their results and the evidence on behalf of their claims.

The fallacy here is Beckwith/Van Dyke/ID's assumption that ID's claim to scientific status is a close-enough question that the exact countour of the "boundary" between "science" and "not-science" matters. In a criminal-law context, they argue as if the definition of "justification" for a homicide is so nebulous that we can't even determine that there was a homicide. (Sorry, but he's dead, Jim.) This "false dilemma by restatement" is a relative of the inductive fallacy; but it is not quite the same thing. As Professor Leiter points out, in different words, ID is so far from any consensus definition of "science" that we need not know the exact boundary; the charcoal is so dark that we can clearly perceive it as "not-white" with no legitimate objection.

If there is one thing that should be apparent, it is that use of the results (or their absence) of scientific inquiry in an argument does not make that argument scientific. Otherwise, we would end up with something like "The simple nuclear fission yield of a standard-design weapon with x kilograms of plutonium is f(x); therefore, such a weapon is a good military choice for its destructive force" as a scientific argument. I will leave the fifty-seven logical problems with such an argument as an exercise for the student. I will not leave it as an exercise for ID proponents, because they have made it clear that they are not students—they already know all the answers.

Even More Still More or Lessig

One of the major conceptual problems that I have with the "copyfreedom" position is the equation it makes between the right/need to make archival copies of deteriorating material (aside: note how little attention is paid to the difficulties of making archival copies of deteriorating material that is not in copyright, but is in "special collections"?) and the right/need to distribute those copies to others. These are not congruent rights. In fact, they are clearly outside the scope of the IP Clause. The IP Clause contemplates advancement of the useful arts and sciences by granting a limited monopoly to creators. The underlying economic theory is that the creators themselves will be encouraged to create more if they are assured that others cannot simply copy their works without recompense. The "archives" argument does not limit itself to explicitly denying the economic basis for the Constitutional imperatives by arguing that "no, wider spread of copies is what encourages more creation." (Note that virtually none of the "archives" proponents are willing to put forth a coherent Constitutional amendment as a proposal to eliminate the confusion.) Implicitly, the archives approach says that market forces outside of the conception of the creator can trump the creator's rights: that distribution of the "preserved" materials is something that must be left to those other than the creator. Cf. Ayre & Muir, "The Right to Preserve."

This should sound a great deal like two popular, but thoroughly discredited (by those paying attention, anyway), arguments against the IP system. IP isn't perfect; it sure beats the alternative of patronage, though. One of these arguments is one that very few people accept: that "everything worth inventing has already been invented." This argument has validity if, and only if, one redefines "invented" in the middle of the argument, from the very broad to the very narrow. Fortunately, not many people accept this argument anymore. I suspect that they are convinced of its invalidity by the hulking research-and-development institutions, and massive research universities, that have sprung up across the Western world like psychedelic mushrooms. However, that's primarily related to the patent system. The corollary for copyright issues is the misguided, indefensible, moronic claim that "there are only six [or sixteen, or thirty-six, to name the other two most-common allegations] plots." Again, this argument depends upon a mid-argument redefinition: just what is a plot? I, for one, do not believe that the sixth-grade book report is an adequate description of the creative impulse or of the creative process. However, the level of detail demanded of these "identical" or "similar" "plots" is less than that of those book reports.

If one actually reads the garbage put forth by the proponents, particularly in light of even a cursory familiarity with literary theory—such as one gets in a junior-year "critical perspectives" course—one realizes that it rests entirely on misusing the term "plot." What these self-interested (because for most of them, the "theory" is only an excuse to sell more "secret formula of writing success" books to suckers inexperienced authors) reprobates really mean is that there are only a few different archetypes underlying the basic structures of narrative works. However, an "archetype" is not a "plot"; it is a much greater/higher abstraction from the underlying work than is the plot. One of my favorite examples is the idiocy ascribed to the so-called "hero's journey" structure. For the moment, we'll ignore the shoddy scholarship behind Campbell's platitudes as irrelevant to this discussion…

Consider these two examples:

• The hero is confronted with a challenge, rejects it, but then is forced (or allowed) to accept it. He travels on the road of trials, gathering powers and allies, and confronts evil only to be defeated. This leads to a dark night of the soul, after which the hero makes a leap of faith that allows him to confront evil again and be victorious. Finally, the student becomes the teacher.
• Frodo Baggins, an otherwise inoffensive Hobbit, comes into possession of the One Ring. On the advice of the wizard Gandalf, who refuses the Ring when it is offered to him, Frodo agrees to bear the ring to the Crack of Doom and destroy it to prevent Sauron from returning to power. Frodo gathers nine companions—not entirely through his own devices—and sets out across wilderness toward the Crack of Doom, all the while impeded by Sauron's avatars. Gandalf is killed in a confrontation with another, independent Evil. One of Frodo's companions attempts to seize the Ring, but is killed himself. Frodo and Sam separate from the others and trudge toward the Crack of Doom alone. Gollum, a previous (corrupted) bearer of the Ring, finds them, and unwillingly guides them toward the Crack of Doom. Meanwhile, the remainder of Frodo's companions rally the West against Sauron and his allies, including a traitorous former advisor/mentor to Gandalf (who himself has been resurrected with greater power than before). They fight several battles, winning each time. Finally, in an attempt to distract Sauron from what they hope and believe Frodo is doing, they attack Sauron at horrible odds. At the climax of the battle, Frodo reaches the Crack of Doom. He is unable to complete his Quest by himself, but Gollum, in his attempts to regain the Ring, accidentally does so. Sauron's power is destroyed, and not everyone lives happily ever after.

One of these is an archetype. One is a plot. The "limited plots" argument is rather like claiming that one can determine the appearance of an animal by knowing whether it has a cartilaginous or bony skeleton (or even a skeleton at all—it might be a worm). However, that argument is actually referring to "archetypes," as in the first example above. "Plot" is something much more complex; even the short summary in the second example leaves out a lot of critical issues and details. Calling the former "plot" doesn't make it "plot."

This really does matter to the whole copyfreedom debate, and more particularly to the archives variation thereon. How should be fairly apparent; but I'll pontificate further another time, as I really do need to do some gainful work today.

Creating the World

My world was created thirty-six years ago today. On the balcony of a motel in Memphis. By someone other than James Earl Ray: It was the reaction and context that shattered my political innocence more than the assassination itself. As young as I was, I saw both the mendacity and the bigotry surrounding all of the TV accounts that day.

Perhaps, in the end, this is what the Inscrutable Design people would be better off claiming: that any intervention of a Supreme Being is not in the physical, but in the psychological, creation of "Man". Evolution, then, for the "religious" purpose, is moving beyond those concerns first brought to consciousness. <SARCASM> In that case, the inability of Inscrutable Design/creationism/fundamentalism advocates to move beyond those initial concerns of establishing and maintaining power is the best evidence available that they, at least, are not evolving. </SARCASM> That this poetic irony is the best way to interpret the storytelling aspects of most creation myths seems lost on just about everybody, because the argument is over history and not over fiction. Or something like that.

In any event, a few decades from now many others will look back at 11 September 2001 as the creation of their world; other dates will mark the beginning of the world for still others. Perhaps I'm stuck back in the mire of what the civil rights movement really means: the struggle of individuals against stereotypes used to enforce existing power structures (whether consciously or otherwise). Perhaps that also explains why I see only progress in degree, and not in kind, from that time. The progress in degree is welcome; but now American bigotry is directed more on account of religion—and sometimes the absence thereof—and national origin than on account of skin color. More; but not entirely; and I am not certain that the difference really represents all that much of an advance.

More or Lessig

Larry Lessig's book Free Culture purports to discuss problems with the "locking up" of culture by "excessive" copyright (what I've come to call the "copyfreedom debate"). Professor Solum is currently engaged in a long, thoughtful summary over at the Legal Theory Blog (the first entry was on Monday). More "traditional" reviews by Adam Cohen (largely positive, NYTBR) and Stephen Manes (muckrakingly negative at Forbes; if I recall correctly, Manes used to be a columnist at PC Magazine, back in the bad old days of copy-protected software, and I don't recall that he defended copy protection). Professor Solum has not finished yet, so I'll reserve judgment (although my "judgment", such as it is, will probably be honest disagreement with some aspects and appreciation for others). I am much less pleased with the two more-traditional reviews cited here, because I believe that they are both grievously misleading.

Cohen's main problem is that he is being flip and summary in his understanding. He never gets at the most significant weakness of Professor Lessig's book: the treatment of all copyrightable material as part of the same class, both by the law as it stands and by Professor Lessig's proposals. More damning, however, is that he just uses the word "copying" without any real understanding of the complexities of artistic influence, of artistic creation, and of same-medium derivative works—and he completely fails to consider non-copyright issues, such as the trademarks created by certain properties. This latter failing is almost universal in its presence in the copyfreedom debates, on both sides. Cohen's review is useful in describing some of the strengths of the book, but completely misses the boat otherwise. Of course, this is not entirely surprising, given that Cohen does not appear to have much experience dealing with those whose works are used as sources (within or without the law); he is a reporter of facts, which is a different perspective entirely. At least Cohen concedes that some of what Professor Lessig has to say reflects real problems, even if he disagrees with nuances.

Manes, however, borders on intellectual dishonesty more commonly found in Inscrutable Design. For example, he makes this startling pronouncement:

To hear Lessig rant, you'd think copyright holders were hauling infringers into court in the manner of a cattle roundup. In fact, copyright suits are stunningly rare. In the 16 years from 1988 through 2002, the average was 2,252 per year, less than 1% of all cases in the U.S. federal courts. Is the number rising drastically in Lessig's beloved cut-and-paste era of the Web? Nope: The high-water annual mark in that period was 2,828, back in 1994, just as the public Web was barely getting started. In 2003, the caseload was just 2448, presumably including all the Recording Industry Association of America's suits against egregious file "sharers." The trend is slightly downward.

(Hyperlink omitted.) Notice the assumption here: That only actually filing a suit means that there has been an assertion of copyright, or that someone has been inhibited from engaging in activity by the threat or even mere possibility of a suit. This doesn't even rise to the level of "bad use of statistics," because the statistics offered aren't even accurate. Copyright issues arise in a lot of other contexts that are not covered by the Judiciary Center's statistics. For example, Dastar is characterized as a "trademark infringement" action, even though the theory advanced by the plaintiff depended explicitly upon interpretation of the Copyright Act. In my experience, this is a lot more common than one might otherwise believe; the distinctions among various types of intellectual property, and antitrust and unfair competition law, are far more nebulous than one might otherwise expect.

More egregiously, though, Manes (and, for that matter, Cohen) assumes that "copying" is an "all or none" activity. While there is a grain of truth in his argument, he perverts Professor Lessig's point.

For all his talk about creativity, Lessig isn't any true creator's friend. His assault on copyright largely helps a ragtag bunch of gleaners who claim that copying is "creativity" because they can't create anything without directly reusing copyrighted material, except when it comes to fictions about Disney's use of other works. Only if Mickey Mouse can be wrestled into the public domain will their true "creativity" be unleashed.

Admittedly, a major part of the problem with Lessig's approach is its unwarranted extension from certain (very real) problems with WFH-based "pop culture" into a questionable assertion that all copyrightable material must be treated identically, even when the current system actually provides more incentive for "advancing the useful Arts." However, this paragraph reflects so much misunderstanding of the creative process that I don't really know where to begin. Perhaps the best place to begin is with literary theory; however much I disagree with the implications Professor Bloom draws from particular instances, his The Anxiety of Influence (1973) does provide a critical window on the creative process that the contestants in the copyfreedom debates neglect. The irony that Manes accuses Professor Lessig, in so many words, of being an "intellectual bully" because Professor Lessig "…demonstrates that he doesn't really know or care what the public domain really is, apparently blinded by his grand wish that damn [sic] near everything be put there" has escaped Manes. Manes's one concrete example—the reuse of other materials by Disney—is actually the converse of Professor Lessig's argument. Professor Lessig's objection is not as to Disney's own use, but to attempts by Disney to prevent others from doing the same. From that perspective the only examples that matter are those that originated in the public domain; thus, seven of Manes's examples are just plain irrelevant.

The substance of Manes's rant is in the pejorative adjectives ("Apparently 9-for-16 on the facts is good enough in the Emerald City of Palo Alto—hey, it's a better ratio than the two of nine U.S. Supreme Court justices Lessig managed to win over to his flaccid arguments in the Eldred case."), which seems to have escaped Manes and his editor. Bullying can certainly cut both ways; <SARCASM> but far be it from me to accuse a right-wing demagog of bullying </SARCASM> . This isn't just bad writing; it's bad thinking, if the knee-jerk reaction Manes displays can be graced with that term in the first place. ("Knee jerking" is not something confined to "liberals"; it is instead inherent in extremism. Hell, there are times that I do it.) I don't have to agree with everything—or even anything—that Professor Lessig says (and much of what he says is, to my mind, correct) to disapprove of the intellectual dishonesty of Manes's attack either in the article I've been citing or in his "book review" of 29 March (also at Forbes, although it's such a shoddy piece of work that I'm embarrassed to link to it).

Duck Duck Goose

Well, the backlash against Justice Scalia's refusal to recuse himself from the Cheney matter has certainly gotten off to a fast start. The arguments on both sides reflect an abject failure to understand the distinction between what is required and what is advisable. (That this also reflects the abyssmally low standards in the legal community is, for once, beside the point.) The problem can be stated more clearly like this:

• No legal rule, whether case law, statute, or clearly accepted ethical standard, requires Justice Scalia to recuse himself in this kind of case. Arguments that he benefitted financially simply don't wash; if they did, White House Chief of Staff John Sununu would have faced charges instead of merely being hounded from office by adverse publicity over the "Air Sununu" trips. (N.B. I have direct, extensive first-hand knowledge of the circumstances surrounding "Air Sununu"; they are both more and less damning than is generally known to the public; and I can say nothing further.) Similarly, contrary to Mr. Lazarus's attempt to turn appearance into requirement, involvement in a prior matter that ended up being resolved in the favor of a litigant—even in the context of an election-outcome-determinative judicial matter—does not require recusal.
• All of that said, Scalia's refusal to recuse himself because he isn't absolutely required to do so is extremely unwise and reflects poorly upon his exercise of judicial discretion. As I remarked a few days ago, the standard to be applied is not whether there exists an actual conflict, but whether a reasonable person might believe that there appears to be a conflict. Justice Scalia undoubtedly knows more about the "real facts" than does virtually anyone else. The problem is that the "advisability" issue looks beyond the "real facts" to how someone in possession of a general understanding, but not all of the technical details, might perceive matters. The standard in the statute is far too loose to require recusal; but the proper standard ("an appearance of a conflict of interest must be treated as one absent either compelling immediate circumstances or a disinterested determination that there is no actual conflict") indicates that the inquiry isn't over, because the determination that there is "no actual conflict" was not made by a disinterested party.

I have lost a great deal of respect for quite a few commentators, and some respect for Justice Scalia, because they seem unable to grasp that appearances and "reality" may indicate different outcomes for the same inquiry. Because conflicts of interest are to be avoided precisely because of the appearance of bias that they create—even in the case of the most ethical, fairminded decisionmakers who have ever existed, whoever they may be—the appearances should trump the not-quite-satisfactory determination that there is no "actual conflict." This is a discretionary function. I do not believe that Justice Scalia has appropriately exercised his discretion in this matter. That is not a "high crime" that justifies removal from office, by any means. Every judge (at least arguably) misuses his or her discretion at some time or another; imperfection is part of the price of being human. That some cases are reversed even under the "abuse of discretion" standard of review more than demonstrates this: the existence of the standard of review should be sufficient ab initio. It's that nasty old "substance/procedure" distinction again. I have little surprise at this result, which was predictable from Justice Scalia's prior jurisprudence; neither have I much surprise that the reason has been ignored by virtually everyone due to their partisan preconceptions.

WASHINGTON, DC (April 1, 2004) In an extra-innings thriller, Bedroc Mines defeated the US Department of the Interior team by a 6-3 score. Only a last-minute double steal by Clarence "The Silent" Thomas and Stephen Breyer turning on two words in a statute repealed forty years ago gave Bedroc the win. Unnamed sources at Bedroc claimed that this game would "go down in history."

PITTSBURGH, PA (April 1, 2004) A fifteen-year-old girl was arrested two days ago for posting child pornography on the Internet. According to police sources, the unnamed defendant had posted pictures of a fifteen-year-old girl in various states of undress and performing unspecified sexual acts. The names of the arrestee and of the victim are being withheld in accordance with local policy. Even though they're the same. Police department officials denied allegations that the victim would be asked to disrobe in open court to prove her identity, and noted that even if she did it would not be child pornography because photography is prohibited in courtrooms.

THE GALAPAGOS ISLANDS (April 1, 2004) In a startling development, a Supreme Being held a press conference at these isolated islands, claiming that he had specifically created each and every creature and plant on these islands strictly to keep scientists so busy that they could not discover the single language that in ancient times united all of humanity. "There is no evolution—I made everything perfectly the first time," he said. He denied several assertions from reporters that he is really the entity known to Christianity as God. When asked how he explained the human appendix, he exclaimed that "If I told you everything, you humans would just find something more dangerous to do. You might even stop electing Texans to national office in the United States if you can pull your puny attention away from highschool textbooks."

The press conference ended when a reporter asked how the Supreme Being explained his uncanny resemblance to a picture from a Waco, TX Easter pageant in which a Baylor University professor played God. Attempts to reach the professor and one of his graduate students for comment proved unavailing; a secretary noted that the two men had suddenly gone on a trip to South America and would be back over the weekend.

Note for the amusement-impaired: One of the above items doesn't go with the others—it's true. Mostly, anyway.