20 March 2019

Spring Is Here

So it's official. And that means it's time for the official spring song!

19 March 2019

[Completely Missing] Their Shot

Charter Communications has filed a petition for a writ of certiorari (PDF) in a racial-discrimination-in-contracting suit with a black-owned/oriented/audience-optimized set of cable channels. Here's a summary of its argument from a normally reliable source. Presuming that Mr Gardner's summary is somewhere close to what's in the brief, it demonstrates all too well that Justice Holmes was right in Bleistein: One cannot trust lawyers with the arts. added 21 Mar Gardner's description is accurate, on the issue discussed in this post. The petition is trying desperately to make an entirely different point, but missed egregiously on this one. The petition also misses by essentially claiming that summary judgment standards provability must be applied to a motion to dismiss, a common means of attacking civil rights-related complaints in more contexts than I can conveniently count.

In this particular instance, that means "Don't equate creative decisions and their First Amendment implications with commercial-distribution decisions and their First Amendment implications." Choosing to cast George Washington in Hamilton only with black actors, see Petition at 26, is nowhere near an oligopolist choosing to exclude already-completed expressive works from participating in a regulated marketplace. (Besides — it's not like there are no other opportunities to be cast as George Washington if you're white…) These aren't even the same parts of "freedom of expression."

Shame on the lawyers who filed this petition for even trying to compare the two issues. Perhaps they should try reading The Lathe of Heaven, in particular the section about George's Gordian Knot solution to racism. Perhaps they should just try reading. <SARCASM> And I'm not going to try to guess the racial demographics of the law firms involved… or of Charter Communications' management and Board of Directors. </SARCASM> More to the point, perhaps this says something rather unfavorable about the rest of the brief.

A more-accurate analogy — although imperfect, as all analogies are — would be if Overdrive refused to negotiate in good faith to carry any e-books published by a mid-sized, black-owned/oriented publisher. This would be especially problematic because Overdrive is an oligopolist in the library e-book marketplace. And that's what Charter is doing: It is an oligopolist regarding those markets for which it has regulatory monopolies or limited-competition agreements to provide cable service. Now, if Charter wants to argue that on the merits the particular deal that Entertainment Studios Network demanded was economically unattractive, that's a different thing… and it's a proper defense on the merits of the case. But Charter has gone overboard, seeking dismissal precisely to keep such a defense out of the record, and to claim that its business decisions can never be examined for inappropriate racial animus. Hmm, let me think back nearly thirty years to the basic course in Constitutional Law; I don't think there's any room at that inn.

And, of course, trying to scream "reverse discrimination in casting Hamilton means potential discrimination in a common carrier's carrying decisions can never be questioned" rather misses the shot on both "common carrier" and Hamilton itself, doesn't it?

11 March 2019

No Mo' WaPo

There will be no more links from or to the Washington Post's online edition here for at least a while, for a simple reason.

It's not the "ads." It's the tracking that comes along with them.

Since you've started hiding half of the content part of the page with a demand to turn off ad-blockers and helpfully suggested (incomplete and nonworking) instructions for turning off the ad-blockers — customized by browser, indicating that you're collecting data even for this — I'm voluntarily hiding the rest of the page by not going there at all until you grow up. Just because there are some really good values available at pawn shops doesn't mean I can or should ignore the stolen merchandise that's there (and not labelled!)… or the dubious ethics of how the rest of the merchandise got there and became available for purchase in the first place.

I don't care if my screen is filled with Heffalump attack ads, male-enhancement pill ads, and fifty-seven varieties of ads for writing schemeools. I do care if you're aggregating any data whatsoever regarding what I'm seeing, whether other ads or the content. I do care if you're trying to determine which articles catch my attention — or not — without any determination of why I'm scrolling the page (like, say, a dog nudging my elbow for an article randomly referenced elsewhere). I do care that you're trying to see where I go next. And that's before getting to both the untrustworthiness of your ad "partners"… and the untrustworthiness of your security measures for your database(s) of collected user information, which are far more extensive and intrusive than any "sanitized" or "aggregated" data you provide those same untrustworthy "partners." The irony that the WaPo became a "national" newspaper almost entirely on the basis of anonymous sourcing seems to have escaped y'all. And my tastes in film, or even news stories — especially in this isolationist era — are no more relevant than Robert Bork's… except to those who would misuse the data.

So bite me. I won't be biting your ads. If you can't do the data collection you want from the print edition, you won't be getting me to help you do it from an electronic edition.

09 March 2019

Smile

Capt Carol Danvers, USAF, is a social justice warrior. That's not much of a surprise, is it, dudebros and white supremacists and fundamentalists-of-all-religions? All that warrioring keeps her from smiling like an aspiring cheerleader. So you've driven down a movie rating without seeing it.

So am I. I don't smile much… especially around dudebros. And white supremacists. And fundamentalists of all religions.

So was George S. Patton. He didn't smile much, either, around anyone.

Wait a minute, I hear you whinge from across the 'net and through your podcasts and ad-supported YouTube channels. George Patton sure as hell wasn't an SJW!

Yes he was; all three of us were; thousands in uniform were and are. Everyone who gives a solemn oath to support and defend the Constitution of the United States against all enemies, foreign and domestic… before promising to obey the lawful orders of the President and the officers appointed over them… is a social justice warrior. Whether by the measure of the eighteenth century or the twenty-first, a document that separates government so that no one branch of government is primary; that guarantees every person the equal protection of the law; that guarantees every criminal defendant the right to a fair trial, and if it's a serious matter before a jury of the defendant's peers; that rejects titles and trappings of nobility; that guarantees the right to freely worship (or not, and I know that last is a sticking point for some of you jerks) — is a bloody social justice manifesto. And that's just a start.

Sure, the commissioned officer corps has had its failures and flaws, ranging from Douglas expletive-deleted MacArthur through Curtis LeMay to more recent examples. But then, dudebros, some of your kind have turned on you, too.

Most of us don't smile too much. Probably because we know all too well that our oaths have put us in harm's way, and required us to order others into harm's way, precisely so that you dudebros can continue to spew your poison (without having played the game or paid the price yourselves — not always as high as lives, fortunes, or sacred honor; maybe just a few years as a low-paid citizen soldier). That you have the right and ability to criticize SJWs is due to the sacrifices of SJWs in the past quarter of a millennium. So don't expect us to smile about it when you attack us or our families or our very reason for being SJWs in the first place. Or our entertainment and freedom of speech.

04 March 2019

Unanimously Founded on Bad Writing

…but not the Court's own bad writing. Two civil procedure decisions masquerading as copyright matters were decided by the Supreme Court this morning. One of them is unexceptional (literally) and relatively quickly explained. The other… not so much, exposing a century of Congressional greed and incompetence, with inadequate consideration of the practical consequences and sources of information on them (especially in a time in which more and more individuals and small businesses are copyright claimants and defendants).

First up, the easy one. In Rimini St., Inc. v. Oracle USA, Inc., No. [20]17–01625 (04 Mar 2019) (PDF), the Court held that despite goofy language in the Copyright Act (obviously inserted by a combination of nonlitigation-aware staff attorneys and lobbyists), "full costs" (17 U.S.C. § 505) means "costs as provided in the general litigation statute at 28 U.S.C. § 1821 and § 1920." This case concerned primarily expert witness fees, which are not explicitly included in § 505 (unlike, say, 42 U.S.C. § 6972(e), also enacted in 1976, showing that at least some Congressional committees knew how to include expert witnesses… but in conjunction with attorneys' fees). In a unanimous opinion, Justice Kavanaugh declared that "expert witnesses" are not "costs" unless explicitly so stated… and because § 505 does not explicitly include expert witness fees (as consistent with prior decisions in other contexts), the word "full" does not suffice. Oracle's purported historical arguments were rejected as unsupported by the actual historical record. What I found most frustrating about Oracle's various briefs in this case, both at certiorari stage and on the merits, is a refusal to directly engage with the opposing argument. There is a good argument to be made that expert witness fees should be recoverable routinely when a matter must be tried to an inexpert jury… but it's at least as much a policy matter for Congress as it is a single-case-that-sets-precedent matter for the Court.

The Court might as well (and perhaps should) have pointed out that § 505 already makes copyright claimants special snowflakes by allowing them — under appropriate circumstances — to recover their reasonable attorneys' fees, not just the "costs" recoverable by any winning party under § 1920. But this just means that the next round of copyright statute revisions will include probably-stealth-mode lobbying to explicitly add expert witness fees to § 505 — a change that ultimately benefits almost exclusively transferees who are well insured, whichever side of the dispute they're on. A freelance author/artist/musician/composer much below the wealth of a Stephen King simply cannot afford expert witness fees as either a winner or a loser. I therefore call for rejecting such a change, unless accompanied by removal of copyright matters from a jury's provenance, preferably to a special master with specific expertise (which would require constitutional gyrations).

Now the harder decision. Justice Ginsburg for a unanimous Court came to a defensible conclusion in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, No. [20]17–00571 (04 Mar 2019) (PDF) that a litigant may not file a copyright action until the Registrar actually acts on the application. This "must register" requirement (17 U.S.C. § 411) is a holdover from prior law, particularly the 1909 Act, and it has two fundamental problems with its premises before getting to the factual and doctrinal issues.

  1. It's probably inconsistent with our obligations under the Berne Convention; Article 5(2) disfavors formalities but unfortunately distinguishes between "enjoyment" and "protection" (which are otherwise undefined). Sadly, Fourth Estate does not engage with the Berne Convention outside of a single sentence, slip op. at 9, although a treaty is of higher order than a "mere" statute (if slightly below constitutional provisions). The most-natural reading of the English-language official text (remembering that this Article was originally written in French… by nonlitigating lawyers) is that a failure of a formal registration requirement may restrict remedies, but not the very act of suit. Which leads to:
  2. It's Congress's cheapskate way of adding to the Library of Congress without actually appropriating money to do so — functionally, it's a tax on original and hence copyrightable expression. Not only must registrants provide two copies of the best (presumably "library-ready") edition of their works, but they have to pay a processing fee on top of it! And I'm not just being cynical; this rationale was explicitly provided and/or acknowledged in both reports to Congress and in Congressional proceedings prior to the 1909 Act, and indeed for a number of years before that. Those who look only at the legislative materials for the 1976 Act would have to delve deeper to find it… but it's there, in the early 1960s reports and hearings. <SARCASM> Apparently, Congress had gotten smart enough by the time there was actual legislative language on the table to keep its conflict of interest less visible. </SARCASM> The irony that the actual appropriated cost of properly acquiring materials for the Library of Congress in 1976 would have been just about the operating cost of an Enterprise-class aircraft carrier is a bit much.

That's bad enough. The real problem, though, arises in the civil-procedure implications that are soft-pedalled in Justice Ginsburg's opinion.

Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Fourth Estate’s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application.

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow us to revise § 411(a)’s congressionally composed text.

Slip op. at 11–12 (internal citations omitted, typography corrected).

The tl;dr version: Bad and noncomparable data sources lead to poor conclusions. A longer version:

  • In a practical sense, that "seven months" figure is not accurate, not even for just group registration of periodicals as it issue here — and even if it were, it's only an "average." Reading the GAO report from which it is drawn more closely (and with more knowledge of the actual context) discloses that this "average" is calculated by accreting noncomparable applications from noncomparable sources; more formally, it is a cross-population mean of uncertain variance. Seven months is probably about average for a single text-printed-on-paper work submitted as part of a frequent-but-not-otherwise-related batch by trained staff at a commercial publisher. It egregiously underestimates the delay for group registrations (such as material appearing in periodicals as at issue in this case), and for photographs and other fine art, and for first-time-or-occasional registrations, and for musical recordings (as distinct from compositions).
  • The claimant's proposed remedy — a mandamus action against the Registrar (see slip op. at 8–9) — would not and does not extend the statute of limitations against the infringer absent a later application for "equitable tolling"… and recent Supreme Court decisions (as in "last week" (PDF)!) indicate increasing skepticism of tolling.
  • I must disagree with this unanimous decision on the facts relating to "preregistration as a safety measure": Preregistration under § 408, particularly as implemented by the Copyright Office, simply is not available to many types of works likely to be infringed prior to the ability to actually obtain registration, and have all of their value destroyed (both retrospectively and prospectively) by that infringement. In particular, preregistration functionally is not available for periodicals, the equivalent of "hot news" (which may include photographs of breaking events)… and musical compositions, an area of copyright law even more dependent on the "expert testimony" issues raised by the other opinion issued today.
  • This last point becomes more important in the internet age when determining who is actually infringing may not be as easy — in fact, almost never is as easy, cf., e.g., 17 U.S.C. § 512 — as it was in the case in front of the Court. "Sure, go ahead and file a Doe complaint." <SARCASM> Yeah, that always (ever, in copyright matters) turns out well. Even when you really aren't Prenda. </SARCASM> And, of course, this also assumes that infringements are detected immediately.
  • Just blaming increased processing times on inadequate budget and staff — implying that there's a quick-and-easy solution if Congress has the will, and pretending that these were not that significant an issue until the "increased security" imposed after 11 Sep 2001 — ignores the explosion in copyrightable material eligible for registration since 1956; this blawg entry is just the tip of the tip of the tip of the iceberg, just considering that in 1956 it would have required at best a manual typewriter, and more probably my illegible scrawl. And that's before considering the explosion in sources of copyrightable material since 1956, when copyright attached not on fixation but on publication.

In the end, this is a bad decision that is a predictable consequence of bad Congressional drafting and bad Congressional intent. So-called "registration" should be eliminated unless and until Congress makes it like a car registration or real-property registration — including mandates for current contact information, current ownership, and everything else. Which cannot be done as long as the Copyright Office is a subunit of Congress rather than the Executive Branch. Guys, it wouldn't be that hard — the Patent and Trademark Office has had such systems in place for decades — but it's an executive function… meaning that to keep building the Library of Congress, materials would have to be transferred between branches, which is not as easy as it sounds. And then the registration issues will have to interface with bankruptcy matters, and state-law estate matters, and… naah, just do away with it. Use a carrot (if you want an injunction for seizure or destruction — US law remedies that are in excess of what is required by the Berne Convention — you have to provide the copies to the Library of Congress and prove up with the proof of receipt only) instead of a stick.

01 March 2019

Son of Article 88 Link Sausage Platter

Just put the <SARCASM> tag on everything on this platter — but it's also full of serious points, which may perhaps be best appreciated with a shot of bitters (Angostura is probably the most widely available).

  • You really know that things are bad in political discourse when the White House sounds substantially less credible than a convicted perjurer (who, at least this time, brought documentation to back up his sworn testimony and offers more). If there's any contempt here, it's the contempt endemic in those who have power who believe that they're entitled to both power in the sense of being "representatives" and power in the sense of "autocracy." And that's regardless of purported ideology or party affiliation.

    After all, the mythical computer that always lies gets defeated every time, even in the worst-written dreck. The hard part is distinguishing the true bits in a habitual liar's sworn testimony. It's not that there are none; it's that believing them in isolation from anything else is difficult, especially when those accusing them most vociferously of lying sound like they've never heard of Proverbs 28:1 by fleeing from showing their tax returns, which would tend to refute some of the lies coming from that liar.

    What this fiasco says about legal ethics and the efficacy of bar discipline is left as an exercise in frustration. And I'm explicitly referring to professional misconduct during the hearing by more than one member of the bar (which no longer includes Mr Cohen…).

  • More shocking, shocking news out of H'wood: Nobody in LA can spell "conflict of interest" if given the first dozen letters. There's another potential writer's strike looming, this time because the (largely coopted, but that's for another time) Writer's Guild is demanding that talent agents refrain from being on both sides, especially in the same transaction. The agents' trade association, however, wants signs that the Guild is willing to "compromise" on a basic principle of ethics. Many industry "insiders" claim that the entire system of H'wood would collapse if social-climbing rentseekers couldn't shift from role to role, even in the same transaction when their clients' interests are in making producers pay the talent more but their personal interests are in making producers (themselves) pay talent less — let alone the temptation to do so in general, which even a profession with as many loopholes in its ethics rules as the law forbids (at least without a knowing waiver) (and see also the next three rules thereafter). And H'wood falling apart would be a bad thing after this round of Oscars?

    This is precisely why unionization is all too often not just helpful, but necessary. Of course, because the WGA needs to continue working with these hypocritical assholes, it can't actually call them hypocritical assholes. At least not in public. Non-screenplay authors don't have the same insulation (or unionization rights!), so they can't call all too many book packaging operations out for even worse misconduct. In short, unions in the arts (and, for that matter, in public service, ranging from teachers and nurses and cops to disability-claim processors) aren't so much about the facial-rate-of-pay issues as about the outright abuse and fraud issues… but the only leverage available for the latter is giving unions power over the former, in a system in which "capital accretion" is the only purpose of damned near anything and venture capitalists will buy out or otherwise take control of the exceptions.

  • Meanwhile, Apple's COO says trust him, Apple isn't elitist. Nope: A company that obstinately refuses to conform to any standard it can possibly hope to evade for the last few decades — the one-button mouse, the lack of filename extensions, spiral floppy disk formatting, refusal to provide service manuals to non-employees, nonsegmented addressing (and that's just the 1980s); we'll avoid, for the moment, the non-user-removable/replaceable battery (which is also a security issue), the utterly nonstandard connectors. the missing connectors that force users who want to use a headset with their phones, as implicitly required by the laws of a couple of dozen states for drivers, to pay an order of magnitude more for a substantially less-capable headset — isn't elitist at all. Neither is it elistist because it disables transfer of purchased iTunes content to a new machine (even a new Apple machine) without paying for a more-bells-and-whistles-but-actually-less-capable software "update" and a subscription fee for access to material that is not stored in the cloud, but locally. Neither is it elitist because it continues to refuse to comply with data-storage formats and standards, such as the completely unnecessary workaround required to embed fonts in epubs to make them readable on Apple devices and saleable through Apple "stores." Neither is it elitist because it charges an exhorbitantly premium price for often-inferior and source-locked hardware.

    I've seen more accommodation and flexibility from cable-TV providers!

    Nope. That's not elitist at all. In this sense, I believe Mr Williams… because it's almost all an obvious and almost inevitable consequence of corporate dumbism, not elitism. Consider the legendary hostility of Apple hardware and software to people who — unlike the late Mr Jobs — got decent grades in eighth-grade typing, and have since gone on to write long documents all by themselves (instead of assembling parts other people have provided) and edit them and revise them extensively into a coherent whole that does not rely upon cheap and often irrelevant eye-candy (elitism would include a help system linking directly to Tufte, if "good and clear communication" is "elitist"). Or who can independently operate their index and middle fingers (same underlying issue, I suspect) and therefore demand a two-button mouse, just like in the 1970s at Xerox's lab just down the road from Cupertino… and other 1970s military applications that used trackballs. Or who select things to do by other than pointing at items on a list someone else has created at the factory without detailed knowledge of what actually needs to be done. Or who think that fine points of design that are to the taste of high-level, highly-paid managers with little or no experience working in resource-restrictive environments definitively determine the functions directly available to people in the field without extensive customization that gets trashed with every upgrade.

    Apple isn't alone in this. It's merely one of the worst offenders; in that, it's up against some pretty stiff competition. Just try comparing the user interface of current versions of either Microsoft Office or even LibreOffice to functions actually used in writing more than a two-page letter or crappy-graphic-laden sales flyer… let alone an academic paper, a legal document (especially on lined pleading paper!), or even as plain-vanilla-formatted an effort as the draft of a novel. But it's not elitism: It's contempt. OK, I guess that is a form of elitism. Never mind.

  • This one has been fermenting for a month, so it's rather kimche-like. Shame on you, Grauniad books editor and interviewees, for your shortsightedness concerning short fiction. The closest any of the fifty stories on the list come to speculative fiction — you know, the stuff that appears in books and magazines with dragons and rocketships and occasionally a single, staring eye on the cover, even when it's as unrelated to any of these tokens as "The Ones Who Walk Away From Omelas" and "Repent, Harlequin! Said the Ticktockman" — is one piece from Angela Carter, and perhaps (but only perhaps) one nineteenth-century story from Edgar Allan Poe that is "speculative" only in that it presents a horror-like internalized view of quasi-Judaic guilt. If it was good enough for Borges (whose notable absence from the list can perhaps be excused by the "written in English" trope, which has problems of its own!) and Saramago (ditto) and Voltaire (ditto, ok, last time I'm giving them this monolinguist excuse, even if the list does include Chekhov-and-I-don't-mean-the-Star-Trek-one) and Le Guin and Ellison and Wells — not to mention any of several much superior pieces by Angela Carter to the one on the list — the best short speculative fiction is good enough for more than 2% of this list. The less said about the other blind spots on this list, the better.

    I specifically expect better from Hilary Mantel… except that the article itself is misleadingly cast with her name first when only a single one of the stories is her selection. The real "villain" here is Chris Power, responsible for half the list. In the end, this is the elistist entry on this platter (as noted, the Apple item is just contempt).

  • Last, a more hopeful item, but it still has some contempt for (aspiring) officials in it. Chicago is going to choose a black woman as its next mayor, after the Democratic primary rejected a Daley. Good {unbelievably foul and offensive string of expletives deleted} riddance. At least for the present: I strongly doubt that family is capable of learning a damned thing, let alone that "family connections do not entitle one to office in a representative democracy." And, as that article neglects, it appears that liberal white voters played an important role, due to low voter turnout which was even lower among black voters.

    Neither of these women is immune from connection to Chicago machine politics; politics in Chicago really is a dirty game dominated by dirty players. But at least one of them appears to have had a bath recently, before diving back into the mud puddle. And both of them are demographically distinct from Chicago's past "leadership," although they're still going to be stuck dealing with a City Council (and County Council, of which one of the two candidates is a member) that is ardently nonrepresentative and a national synonym to this day for "corruption" — deservedly so.

25 February 2019

Unhosted Just Desserts (and Deceptive Advertising)

Hollywood got what it deserved last night: Consequences that it cannot live down because they're set both in text and on live broadcast forever. And those consequences are entirely the Academy's own damned fault. In no particular order:

  • Best Picture was, as is all too frequent, an avoidable mistake. Inevitably so, thanks to the Academy's membership demographics. It's ironic that the segment of the Academy that is most responsible for entrenching the awful demographics in the "working" branches — the public-relations and associates branches — is also the least diverse, least amenable to considering either the value of a complex work as a whole or long-term merit/value, and entitled to nominate (and vote) for Best Picture while having no credentials to do so. The Academy makes a big deal about limiting nominations to those portions of its membership who actually work in those areas, but allows the publicity dorks — who work in precisely no areas relevant to a completed film's merit (except in excluding the "hard to market" folks from opportunities, that is) — to vote on the category that requires the greatest appreciation for how the elements of a film fit together for themselves and not for ticket sales. It's not quite like putting three Klansmen on a jury considering the 1957 slaying of a civil-rights activist in Mississippi (even today!), but the optics are unfortunate. Ironically so.

    I suppose we should just be thankful that there isn't an Oscar for Best Publicity Campaign. Harvey Weinstein would claim the right to even more of them (and, BTW, we won't talk about the intellectual property theft intertwined with more than one of "his" wins in the past; I literally can't due to confidentiality requirements). But as an "executive" Weinstein isn't/wasn't part of the publicity branch…

  • Spike Lee must have a suspended driver's license. Whether or not Do the Right Thing was "the best" film of 1989, there's little question that it was objectively superior in virtually every aspect not related to ease of publicity to the winner that year, Driving Miss Daisy. Repeat for 2018, with BlacKkKlansman sideswiped by Green Book. (The irony that the scripts for Driving Miss Daisy and Green Book seem to have consciously avoided obvious aspects that would have made publicizing those films more difficult seems a little less than merely "ironic.") At least Lee got something this year. Almost exactly three bloody decades late.
  • It's time for my periodic disgust for the "community" of critics' collective wet dreams over The Godfather — a film I've always found vastly overrated. Maybe it was more meaningful to the Pauline Kaels and others from N'Yawk who considered that city to be in the grasp of The Mob (especially immigrants and first-generation Americans) at that time, and for whom it therefore had immediate resonance. (The tinge of nepotism in selecting some of the secondary acting — and other — roles seems to have escaped them, however.) Fundamentally, The Godfather (singly and as a "trilogy") is an idiot plot in which none of the protagonists or antagonists demonstrated much grasp of either tactics or strategy… and the central protagonist was set up as an Army veteran who was a commissioned officer… But the critical community is just unwilling to look.

    I'm sick to death of critics using "But The Godfather only got three Oscars" as their touchstone; they'd be better off looking slightly later in the decade, but then they'd have to reverse course and explain why Dustin Hoffman's Best Actor award for a film I refuse to name is blowback for The Graduate or the prudishness of Midnight Cowboy or… and then the critics would just engage in some particularly unconvincing film-is-all-and-no-other-artform-matters critsplainin'. And "particularly unconvincing critsplainin'" is up against some really, really stiff competition.

  • Worse yet, the Academy magnifies that first point above by making the awards too bloody soon; the cart is so far in front of the horse that the horse hasn't been cast yet, and the script is still not locked down so it might turn out to be a V–8 Interceptor instead of a cart anyway, and then we'd need about four hundred horses… "Best" (or "outstanding achievement" to use the official title of many categories) cannot be judged based upon a single viewing helter-skelter at the end of the year, usually specially arranged by those nonworking branches. If these awards are supposed to reflect merit and not marketing opportunities… oh, there's the problem: I'm expecting the awards to be what they say they are instead of what they've been coopted to become. Bad shark, no chum.

My proposed solution to the above is to let nonworkers be members of the Academy if that's what the Academy wants, but restrict both nomination and voting to past award nominees in a given category and members of the relevant branch(es) active within the preceding quarter of a century. And I'd hold the nominations in April (after DVD releases for all eligible films, with no more of this "release in NY and LA just before the calendar flips because only the beautiful people matter" bullshit), voting in early May, and the awards ceremony the first weekend after Memorial Day (traditionally a "slower" new-release weekend).

Just to shut them up, I'd give the nonworking branches their Outstanding Achievement in Publicity Campaign award, too. If only for the fun of watching the logrolling and hairpulling. I'd then tell those branches to STFU for the rest of the bloody year because they're already getting more than they deserve: It's their job to market what other people make, not predetermine what and how it gets made. No more Creech Brown paint, please; it was decent camouflage in Oklahoma, but not so much in Europe (or, for that matter, most of the rest of the US).

22 February 2019

Source Confusion

Well, I've run into yet another article demonstrating that the legal academy and profession don't know enough about science to perform reliable "empirical legal studies." And it's a particularly egregious example that fails at multiple points from beginning to end as an experimental design. But I'm not going to name it… because this instance is the third one that I've come across, in three different scholarly areas in which I have both experience representing parties and continued scholarly interest, in the last several weeks. I'm particularly disappointed in this one because the author's acknowledgement footnote thanks someone I would have expected to object to these flaws, but that's a secondary process flaw that is subordinate to the fundamental problem:

Lawyers not only don't know what "replicable evidence" is — they don't care so long as they have something to feed into a black box that has the Authority of Statistical Manipulation to support a preconceived ideological or doctrinal viewpoint.

And they can get away with it precisely because the profession's leadership (including, but far from limited to, both academia and the judiciary) is so ignorant concerning scientific and mathematical method and proof. So ignorant that as a whole, it doesn't understand either this cartoon or its implications. Obviously, my misspent youth has caught up with me.

Not in the order that they should occur to a researcher, nor in the order that they should be dealt with, but in the order that they're easiest to describe, here are the critical problems shared by all three of these unnamed works (all accepted for publication, one at a "top ten"ish law journal and one at a "peer-reviewed" law journal):

  1. The data set consists solely of reported decisions. This is inherently a fundamentally distorted data set rife with problems. To begin with, it is functionally the equivalent of determining the public's acceptance of civil rights for negroes in 1962 by setting up a table in an upper-middle-class residential district between 4:30 and 6:30pm, manned solely by white men wearing suits (and locally appropriate hats) speaking in the local accent… and only asking the question of similarly dressed white men who walk up to the table, and recording only an unnuanced yes-or-no answer.

    As ridiculously obvious and obviously ridiculous as that seems, it understates the self-selection problem with relying upon "reported decisions" for anything other than what reported decisions themselves say. And it's not just the most-obvious problems with "no women" and "no minorities," either — consider the disabled who don't walk (or are embarassed by a stutter and don't speak), the shift workers and at-home workers who don't pass by during that time window, the idle rich (and, more egregiously, the unemployed), the nonnative speakers of English, the nonconformist self-made millionaire who hates hats. The fundamental problem with relying upon "reported decisions" for one's data set is that the economic circumstances of the respective parties, and therefore their ability to get into a court that issues a reported decision, are completely independent of the merits or the representativeness of wider context.

    More subtly, some circuits (and state courts) have policies discouraging reported decisions — "cultural," official, or de facto. I'm thinking specifically of the federal Fourth Circuit here, such as this well-taken reservation. Whether or not one agrees with that "culture" for any reason, it strongly undermines the validity of any study that restricts itself to "reported decisions."

    In some fields, restricting the data set to "reported decisions" has another, more disturbing effect on data integrity: Some courts obstinately refuse to reconsider their past decisions in the light of new authority (whether simply a statutory change or even, in some instances, intervening Supreme Court authority). A per curiam decision earlier this week demonstrated that the Texas Court of Criminal Appeals doesn't, umm, understand the Supremacy Clause (PDF) (being as polite as I can because my only understanding of the facts comes from those portions summarized in the respective opinions; see next point below). This is an obvious example; the Second Circuit's refusal to engage with the inability of its judge-made work-for-hire interpretations under the Copyright Act of 1909 to satisfy the definition stated in the text of the Copyright Act of 1976 is less obvious, but more central to my particular concerns. Further, it's never clear from these studies reflecting "reported decisions" how decisions that are later overturned, abrogated, or abandoned are treated — and that matters a lot (see below).

  2. Which leads directly into the next point: The presumption that reported opinions are accurately reporting the relevant facts, let alone accurately characterizing them after being filtered through at least two sets of attorneys who probably don't have all that much understanding of the distinction between "admissible evidence" and "factual knowledge that influences parties' decisions and actions." To use an obvious example, one party's years-afterward recollection of verbal promises made that induced agreement to a written contract that includes the kind of integration clause taught to first-year law students aren't going to make it into the record that is behind a reported decision, not even in the trial court when trial courts' decisions are reported. Not even — and perhaps especially — when the other side admits to its own counsel that those representations were made (or different ones with similar weight) and then denies it during a deposition. <SARCASM> But that never happens. </SARCASM> A motion in limine will successfully keep that "fact" out of the record and therefore outside the consideration for a "reported decision."

    Some contextual issues that really matter also fall inside this problem, especially relating to allegedly derivative works. The Cariou fiasco, and the more-general problem of "appropriation art" and noncreator-made derivative works, depends upon an understanding of artistic process that is unique to individual circumstances… and that is precisely what is not supposed to be at the core of reported decisions. Reported decisions are supposed to make generally applicable legal doctrine clear and known to the public in a manner that will enable the public to comport its conduct to the requirements of the law. This is particularly problematic for the "transformative use" doctrine because — leaving aside the insoluble and nongeneralizable ex post / ex ante (a/k/a "retconning" and "post hoc rationalization") flaw inherent in the doctrine — there is no universal "creative process" to which it can be applied. Even the slightest modification of the context in Cariou demonstrates this: How would one evaluate this if we were dealing not with photographs, but with painted portraits? How about sculpted likenesses (before considering whether that's in clay or in marble or in collected objects bound together)?

    This is an institutional problem inherent in reported decisions: The presumption of judicial (and, more generally, lawyerly) competence. I can only repeat Justice Holmes's imprecation regarding the seemingly lawyerly concept of "originality."

    It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.

    Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251-52 (1903) (internal citation omitted). And it's even worse in many other less-lawyerly areas, such as "what does a DNA match really mean" (thank you ever so much, Justice Scalia) and even more-lawyerly ones like superiority of class-action litigation as a means to resolve disputes, or the cost-benefit factors behind a policy "favoring" arbitration (which is based almost entirely upon a leap of faith expressed in a judicial opinion).

  3. Then there's a deeper, methodological problem: Are the particular statistical tools applied to the data set in question valid in the domain of that data set? Leaving aside the "empirical versus epidemiological" debate (and the intentional absence of controls), consider two questions raised by the presentation of a different article. First, are we dealing with a two-tailed, a multi-tailed, or an indeterminate-tailed decision tree that must emanate from that data set? In law, the assumption that everything is "two-tailed" dominates judicial decisionmaking: "Guilty" or "not guilty," "liable" or "not liable," "reversible error" or "not reversible error." Sometimes, however, degree matters as much as kind, and I don't mean just "murder in the second degree." Any time one sees a balancing test or multifactored inquiry, one must be suspicious of binary outcomes. "Fair use" (17 U.S.C. § 107) is an obvious example; so is "piercing the corporate veil" (e.g., under Alabama law (and this case remains valid)). Many statistical tools, however, are only valid for two-tailed decision trees, such as the so-called "t test" — and using them outside their boundary conditions is comparable to using the handle of a screwdriver in place of a hammer, or more often to using a hammer to try to drive in a screw. With enough force, it can sorta work… but usually ends up damaging things further and making rather impermanent connections.

    Second, there's the more subtle problem of internal data integrity. When one is dealing with judicial decisions, the most-obvious factor is the comparative quality not of the facts, the parties, or justice, but of the lawyers. Too often — especially in areas outside the experience or expertise of the specific judge(s) actually hearing the matter — "persuasiveness" issues get too much weight, resulting in sampling from non-normal distributions with unequal variances. This isn't precisely a consequence of the "economic status of the parties" issue in point 1 above; sometimes really exceptional counsel represents the "less well-endowed" side, such as in almost all significant civil-rights cases. But that is far less correlated with the true merits of claims and defenses than it might seem.

  4. Last, and most lawyerly of all, there's the influence of pure civil procedure upon the doctrinal result — and this problem is almost always neglected in statistical studies of case outcomes, whether just reported decisions, including "nonreported" decisions, including "resolution of cases actually filed," or Cthulhu-forbid consideration of nonjudicial dispute resolution (whether administrative or arbitral). Consider, for example, a reported decision that denies summary judgment because there remains a material fact in dispute. The standard here is that there was enough evidence presented to avoid summary judgment — that some weighing of evidence would be required by a finder of fact at trial. Cf. Fed. R. Civ. Proc. 56.

    There are two pitfalls here. One is an improper presentation of the motion or opposition that — despite its underlying merit — results in an adverse finding. When I was practicing in Chicago, I observed (not in any of my own cases!) that failures to satisfy the exacting "statements of fact and evidence" requirements of (former) Local Rules 12(m) and 12(n) in the U.S. District Court for the Northern District of Illinois were frequent causes for adverse decisions on summary judgment… because a failure to follow all of the purely presentational aspects of those rules resulted in a finding that the opposing party's factual assertion was deemed admitted for the purpose of that summary judgment motion. Cf., e.g., Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1102–04(7th Cir. 1990) (failure to meet formatted-opposition requirements of Rules 12(m) and 12(n) affirms summary judgment, even though "Standing alone, Tapy's affidavit would be sufficient to create genuine issues of material fact"). Aside: I fully support Rules 12(m) and 12(n) and wish that they had been formally adopted, including required forms, into the nationwide federal rules… but it's impossible to deny that they place a significant burden on pro se parties and inexperienced counsel. That is, indeed, my point.

    The second is more subtle, and relates to a judge's understandable tendency toward Dunning-Kruger fallacies (abstract only). As a group, judges issuing reported decisions are smarter than the average bear — they've got graduate degrees and passed the bar exam, which makes them smarter in some realms of knowledge than Airman Basic Slugworth (a barely-graduated-from-high-school kid, despite his undoubted auto-mechanic and woodland-survival skillsets). The difficulty, parallel to the problem noted by Justice Holmes and quoted above, is that judges are not very good at acknowledging that failure to really comprehend the details of complex factual and doctrinal contexts impairs the accuracy of decisionmaking — and, more to the point, decisionmaking that makes or alters doctrine. Judge Hand's inability to recognize his lack of mathematical sophistication in attempting to extend the so-called "Hand Formula" of Carroll Towing from a particular narrow instance to a universal rule — without even inquiring into whether the variables B, P, and/or L were independent, or continuous, scalar, or even had compatible units, let alone whether his purely-additive meme related to a stable function surface — is just a particularly obvious example. Returning to summary judgment for a moment, though, lays bare a potential worse alternative: Throwing complex decisions of fact into the hands of a far-less-educated-on-average-than-is-the-judge jury, and adding the spectre of not just "lawyerly persuasiveness" but "expert-witness persuasiveness" to the boiling-over pot.

For all of these reasons, relying upon "reported decisions" as the data set from which to draw defensible and replicable conclusions not as to judicial behavior, but as to doctrine or merit or even underlying factual circumstances, is indefensible and inappropriate. Statistical analysis of invalid data sets just isn't helpful… especially when the decision to "publish" or not is nonobjective.

21 February 2019

SurUnreal TV

One of the… privileges… of more-than-a-week-long residence in a care facility (like happened to me pretty recently, multiple times) is basic cable. In particular, cooking shows, which — if one has a roommate — may be about the only thing that doesn't cause distress or an argument. Even when there are individual TVs, frequently a hearing issue will cause one of them to be really loud!

But even through druuuuuuuuugs — or maybe especially through druuuuuuuugs — that leads to some serious questions about some of the unstated assumptions on the shows. I've mentioned a couple of them before (such as the artificial 20/30 minute "limit" that means the only rice that could be included is either cold and precooked and therefore nasty, or perconverted long-grain white rice and therefore nasty). Here are a few more, especially as they relate to the classism and too-often downright racism hiding in the producers' — and, all too frequently, creators'/presenters'/stars' — rules just for TV. In no particular order:

  • Do your own damned dishes. Especially between segments of a show like Chopped and Cutthroat Kitchen, the rule should be — unless the producers actually show (and pay and credit!) the army of minions washing that expensive cookware and those custom plates and the celebrity chefs' personalized cutlery — "If you use it, you clean it to Health Department standards before you (or anyone else) can use it again."
  • With the possible exception of the Iron Chef Kitchen Stadium, no kitchen or cooking station should be designed for the convenience of 1970s-era TV crews and equipment. One of the worst offenders is the so-called "farm kitchen" that appears on several shows and has a square footage (once one accounts for the out-of-sight storage, let alone the camera/production area) roughly equal to the whole damned farmhouse. And it's perhaps even worse with many purported "restaurant" kitchens, which in reality for all of their size are dominated by storage for the food and plates (and high-speed, high-temperature dishwasher and personnel) necessary to feed people. Camera technology is now good enough to rig a mid-level smartphone on an old-fashioned microphone stand and actually get better video in tight spaces.
  • Cost is an issue. Period. At a minimum, any segment that assumes using a butcher or fishmonger needs to be balanced with "using the trimmings" and economical accompaniments. I'd love to see an episode of Iron Chef in which the secret ingredient was a $100 bill… and that had to suffice for all five courses, with a zero awarded for going over budget. I strongly suspect that all of the Iron Chefs would get that zero, because they all have obsessions with expensive ingredients that are seldom available except by special order to the restaurant trade (about fifteen years ago, I dimly remember one working foie gras into every meal).
  • Health and dietary restrictions are an issue. I've mentioned the obsession with salt on the part of a few "judges" before. So is sugar. So are other dietary issues, ranging from "one judge is a diabetic" to "one judge eats halal only" to "one judge (or contestant) is violently allergic to shellfish." That last one is particularly annoying: No contestant should ever be asked to prepare dish that he/she medically cannot taste before presenting it in a competition! That's more than just disrespectful and counterproductive — it's abusive. Even more abusive than Gordon Ramsey's frequently misguided rants. Especially since the producers have complete control over what mandatory ingredients are matched to any particular contestant. So, basically, producers, you're bigger assholes than Gordon Ramsey when you force a contestant who is allergic to shellfish or religiously does not eat pork to use those in a dish prepared under time pressure to be judged by strangers.
  • Every piece of equipment needs to be provided equally to every contestant. No more fighting over the single ice-cream machine, please. (Not to mention that it's a particularly goofy piece of equipment to make into an artificial bottleneck when every cooking station in Kitchen Stadium has its own deep fryer, convection oven, and gas grill.) And then cleaned, within whatever time limit has been imposed.
  • Speaking of equipment, if your sponsor/affiliate sells an endorsed line of (usually crappy and almost always inconsistent from batch to batch) equipment "from" one of your chefs, all appearances by that chef should be limited to using that endorsed equipment. To pick on a past example, Paula Deen's kitchen should have been limited to "Paula Deen" brand equipment… including the thin and substandard plastic-handled nonstick pans (and she almost never used nonstick or other coated pots and pans, even when it was most appropriate or even necessary to do so). Endorsement = use… unless, that is, you don't care about the strength and protectability of the marks in question, let alone unfair trade practice statutes and regulations.
  • My proposal for a real-world, but absolutely crippling, additional challenge: A four-year-old whom you cannot banish from the kitchen… but whom you must keep safe. And occupied. Go ahead, Iron Chefs: I'd like to see you do an exquisite presentation or intricate butchery with that kind of assistance… and have it come out consistently on four or five plates. Before, of course, doing the dishes and keeping the knives away and the fingers from getting burned and…

In summary, producers, your upper-middle-class, Upper-West-Side bigotry is showing, even when you're supposedly celebrating the richness and variety that immigrants have brought to American cuisine. For the home audience who can't shop at your specialist suppliers in the first place. Your offerings, with rare exceptions, aren't close enough to reality to be merely surreal.

15 February 2019

Leftover Cheap Chocolate Assortment Link Sausages

Definitely overdue thanks to Life. Despite the tendency of the current media to do their jobs on druuuuuugs — especially, but not only, Reynard's descendants (and it's worthwhile to check that out, as "sly, amoral, cowardly, and self-seeking" is a pretty good description) — I try not to do that.

  • Speaking of druuuuugs, have you ever stopped to consider the dubious factual assumptions behind drug dogs and warrantless search doctrine? They're almost as credible as those behind Palsgraf. Almost.
  • <SARCASM> Last month's shutdown had at least one set of beneficiaries. Temporarily. But these new squatters on federal land are undocumented and probably illegal immigrants, so they have to go! Even their children, who are obviously just freeloaders and need to be separated from their parents for their own good (and ease of deportation). And I don't want to hear any nonsense about "refugees" from stupid things like climate change and ecological-niche collapse and habitat destruction — those aren't grounds for withholding deportation. </SARCASM>
  • Someone who should have won a Nobel Prize for Literature (or at least gotten more acclaim than the white male upper-middle-class maroons who have dominated American literary awards) received some overdue recognition from the NEH recently. Of course, the literary/critical theory underlying the article is fundamentally wrong; Le Guin's work was the epitome of an intelligent observer purposefully designing distorted mirrors not to create the new, but to comment on particular aspects of the present. But then, the literary/critical theory underlying the article is precisely what led to overweening praise for Carver and Cheever and so on (and that's just the Cs).
  • And then there's the fundamental contradiction between "We need more government money for dubious 'national security' measures" and "We need to give the very richest a biiiiiiig tax break." Rich (usually amoral) people and rich (totally amoral, almost by definition) companies. It leads to a nerdishly fascinating inquiry: Just WTF do they mean by "capitalism" anyway? Does that include the silent siphoners, who have the "right" to siphon off individual data because an individual's data only has economic value when it is merged with many other individuals' data? (Hint: No, that's mercantilism, not capitalism.) And speaking of mergers and silent siphoning, how 'bout them pricing algorithms? I'd ordinarily just say "do the math," but there are so many divide-by-zero and other boundary-condition violations there that doing the math won't get very far.

02 February 2019

Where Were You Then?

Here's another entry in my overflowing file of reasons that law-enforcement officials should not be directly elected, but instead should be qualified professionals appointed by (and subject to appropriate, limited, for-cause-related oversight by) elected officials. One of the local sheriffs in this supposedly ultraliberal state — consistent with the rest of his county government, so at least he's not being (locally) disloyal — has stated that he's instructing all of the law enforcement professionals under his authority not to enforce any part of the new voter-approved Initiative 1639. Just look at that smiling picture and ponder its dissonance from the subject matter!

Don't ponder its dissonance from reality too much, though: You'll hurt yourself. What I really want to know is this, Sheriff Scott (and the same of your white male colleagues and predecessors in the rural and semirural counties of this state): Where the hell were you when your upstanding local citizens were attacking Native Americans over the damned fish catch? Did those citizens' "property rights" and "commercial advantage" somehow justify ignorance of treaty obligations, and justify not just punching holes in boats and nets but beating the crap out of the Others while deputies failed to respond? Where the hell were you and your ilk when American citizens of Japanese descent were being rounded up for internment camps? Where the hell were you when any other civil-rights issue — especially those based on clear constitutional authority like the Fourteenth Amendment's demand for equal protection of the law — arose? Where the hell were you the last time there was a gay-bashing incident off campus at the local high school? Where the hell were you the last time some of the Real Americans in your jurisdiction torched a non-Christian place of worship or business?

You do not get to pick and choose which statutes to enforce, Sheriff. Sometimes there are legitimate allocation-of-scarce-resources issues that mean in practice that you have to prioritize (I've run into them as a CO myself)… but you've made no reference to that. Admittedly, there are ambiguities that need to be resolved in some of the details of I–1639… just like there are ambiguities and professional judgment involved in damned near any enforcement of any law at any time. That doesn't mean you get to decide, in your supreme self-righteous arrogance, that an entire law that appears consistent with even the most generous-to-gun-owners Supreme Court decisions is to be unenforced just because you think some parts of it could be clearer. If it doesn't work for Kim Davis in her merely administrative capacity, it bloody well shouldn't work for you when you are charged primarily with protecting public safety. <SARCASM> But I'm supposed to respect your professional judgment. Just like I learned exactly how much to respect the professional judgment of the popularly elected sheriffs (and their deputies) in Oklahoma and Cleveland Counties regarding airmen and NCOs under my supervision and command who, for whatever reason, didn't look like them. To some of us with moderately long memories and/or horizons beyond, well, the local curvature of the planet, "Sheriff" comes right before "Clark" or "Arpaio" — and it's going to take a few more decades of demonstrated even-handedness before that reaction fades, even for those of us with pale skin and military haircuts who were merely paying attention and actually gave a rat's ass about protecting the constitution of the United States against all enemies, foreign and domestic. Probably not as long as it takes your collective "the gummint is grievously harming my political patrons' civil liberties by moderately impairing their military-class firepower that has no legitimate civilian usage and no realistic training for any usage" hysteria to fade, though. </SARCASM>

And for you morons who claim that you need to keep a large-magazine firearm handy at bedside for home defense against intruders, do a little bit of math. Compare the amount of time that it takes you to wake up, reach over to that bedside table, retrieve your "equalizer," sight down on a target in a dimly lit bedroom, and pull the trigger… to the amount of time that it takes an intruder with a $12 plastic-handled hunting knife purchased at some nearby convenience store to cross your ten-by-twelve bedroom and really mess up your day. Meanwhile, make sure the "intruder" wasn't your ten-year-old kid having a nightmare or videogame rush who came in your bedroom door. <SARCASM> Besides, your kid might have a chance to live if you don't have one in the pipe and fifteen in the magazine, given your usual marksmanship (which seldom approaches that on display in any Star Wars film). </SARCASM>

31 January 2019

Frostbitten Midwestern Internet Link Sausages

Rumors that these link sausages were left outside in Chicago this morning because it was both faster and cheaper than using a commercial freezer are just rumors.

  • It's not just US judges who are being subjected to overt political selection and pressure. (And that's leaving aside the dubious constitutionality of electing state-court judges; one must wonder how an elected judiciary is a "republican form of government" when their counterparts were not elected at the time the Constitution was adopted.) When the problem extends to the International Criminal Court, the rule of law is in jeopardy. Well, more jeopardy than it always is…
  • …from assholes like this guy, who apparently believe that whatever benefits them individually and can be somehow presented as a general benefit (even when that presentation is fundamentally bullshit) is not just allowable, but admirable. It's almost as if people aren't really robotsrational actors in reality — sort of like the difference between reality and the Ideal Gas Law.
  • Ignorance of that kind of difference is just one example of the critical need for greater scientific literacy among political leaders. Hard-core research scientists don't, themselves, tend to make great political decisionmakers (Exhibit #1408: Dixie Lee Ray), but that's still better than the kind of ignorance that makes calling the internet a series of tubes rather routine.
  • All of which reinforces the need for fact-checking in commercial publishing. The fundamental flaw in that article is that it treats commercial publishing as all of publishing, and neglects other publishing industries (like limited-circulation periodicals and academic of all sorts) as if they necessarily have the same standards, mechanisms — and flaws — as NYC-based commercial general-audience publishing (whether for books or periodicals). For all its flaws, peer review appears to do at least as good a job as keeping a cadre of in-house experts (who, if they're any good, know damned well that they don't know everything).

    It also, sub silencio, ignores the ethical standards of the authors, whether we're talking journalism, science, or something else. This is a problem, because the article presumes that only the editorial process in commercial publishing will ensure any allegiance to a defensible factual foundation… whereas that's true only in politics.

  • And then, there's for-all-practical-purposes permanent fallout from the temper-tantrum shutdown caused by the thing on Drumpf's head. Or, perhaps, his fundamental nature.