09 December 2018

Non-Kosher Holiday Link Sausages

These link sausages have all been hanging in the same smokehouse, many for far too long. They're all concocted from the same recipe, though — and leave the same aftertaste of "adulterated contents," if not necessarily too Jungle-like. More importantly, they're all directly relevant to freedom of both communication and creation, and who controls the channels. They focus on the intellectual property world.

  • First up is an incredibly obtuse bit of bullshit from someone who should know better: A lament that "Indiscriminate use of ‘intellectual property’ has unsurprisingly bred absurdity." Leaving aside its reliance upon Richard Stallman's entitled, tenure-protected nonsense for damned near anything, the article fails to answer two critical questions that each must be answered in a particular way for its conclusion to have any validity. First, if it's wrong to group "too much" under "intellectual property," shouldn't we also make the same distinctions at the core legal and, umm, intellectual levels in "real property"? Shouldn't use of farmland be treated distinctly from redevelopment of brownfields in all respects (not to mention easements, riparian rights, etc.)? Second, and more to the point, what is the realistic alternative for encouraging those not protected by tenure or leisure to "advance the useful arts and sciences" — and more to the point, how do we get from here to there, and at what cost?

    Bluntly, this is typical utopian bullshit. There's no consideration of costs, alternatives, pathways, or wider consequences. More to the point, there's no consideration of "achievable imperfection" as the true goal of the rule of law… because the rule of law imposes a veil of ignorance ab initio, but cannot guarantee a just outcome in each instance. Nothing can; reality is all about acknowledging the existence of outliers and accounting for them (PDF image).

  • Stepping slightly farther back in the chain, consider glitches in the production-of-creative/useful-works subprocess
  • …and how those glitches are reflected in the publishing-and-distribution subprocess, both before actual publication and afterward at both large scale and somewhat smaller (with more-detailed data). Note, however, that not one of the entities appearing in any of these pieces (specifically identified or otherwise) has been subjected to any realistic antitrust scrutiny — not even hypothetically.
  • But that's just the specialized world of academia, where we can't expect economic realities to intrude, right? <SARCASM> In the purported "real" world, attribution and the nature of works is never a problem, is it? Or reuse — directly, through new publication, or indirectly, as "inspiration" for new works? And, of course, everyone in the distribution subprocess benefits equally, just like rising tides lift all boats (except those already holed below the waterline, perhaps). </SARCASM>

Ultimately, these sausages demonstrate that Marx was fundamentally wrong about any society moving past pure industrialism. It's not control of the means of production that creates power disparities and injustice, but control of the means of distribution. During the early and mid-nineteenth centuries — the data set upon which Marx (and Engels et al.) unleashed their black-box ideologies and post hoc rationalizations — in Western society "production" and "distribution" had largely coextensive ownership, so it was perhaps more difficult to understand that they're equally important loci of antitrust. Of course, if they weren't distinct, the leading US antitrust cases of the first three decades of the Sherman Act wouldn't concern railroads…

Whether one's loyalties are pledged to the Montagues or the Capulets, the Sharks or the Jets, it's still about organized crime. Even if it's not that organized.

22 November 2018

The 2018 Turkey Awards

An annual tradition for two decades! This is my list of ridiculous people from 2018 (so far). Pass me one of those rolls, please:

  • The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to Hop-Hop Productions and its proprietor, who shall not be name-checked here (because that would, after all, feed the publicity beast)… even before going limp.
  • The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the American Bar Association for its institutional arrogance. Yeah, I thoroughly believe the ABA is "liberal" in the face of anti-science ethics opinions and support of the most racist, fraud-and-class-warfare-enabling segment of its membership. (Note on the latter: I participated in Heintz v. Jenkins on remand and dealt with "Van Ru", assholes; I know what I'm talking about, even if you refuse to see it, and I've seen the same bullshit spouted forth in the last two months by one of these miscreants.)
  • The Broken Wishbone Award for shattering dreams goes to Wayne LaPierre, although there's a good argument that the damned award should be retired in his name. Unless and until gun-rights advocates accept that there is a price for their position, there will be no discussion — only sniping that almost always shares the same defect as all NRA gun-safety courses (no coverage of target acquisition or downrange clearance).
  • The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to everyone trying to treat the state-sanctioned murder of a journalist inside an embassy as anything other than, well, state-sanctioned murder; this is just one example. n.b. I still remember some of the people who have been involved/blamed/scapegoated/etc. That does not increase my confidence level at all.
  • The Conspicuous Consumption Cranberry Relish Award for the most-outrageous example thereof goes to the entitled asshole who bought this for $90 million — which is approximately $90 million more than the current administration wants to spend on all arts funding. p.s. The artist will get exactly nothing.
  • The Crabapple Pie Award for marketing something sour as something sweet goes to Amazon's HQ2 extortion of localities. Guys: You didn't need to do this.
  • The Wilted Salad Award for the one part of the meal that's supposed to be "good for you," but is instead rather past its sell-by date, goes to Ivanka Trump and her "private" e-mail account. One wonders if Hilary Clinton is in her address book… ok, maybe not.
  • The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to Brexiteers, who almost uniformly hope to profit by having less scrutiny placed on their activities by people who didn't go to the same public (private) schools they did.
  • The Dried-Out Breastmeat Award for overcooking the books goes to Brian Kemp, Governor-Elect of Georgia, who obviously couldn't spell "conflict of interest" if spotted the first eleven letters.
  • The Rancid Drumstick Award for something that should be edible, but isn't, goes to Laura Ingraham… although the rejoinder by a teenager was much tastier.
  • New Menu Item This Year! The GMO Tofurkey Roast Award for a main-dish item that's supposed to be more wholesome, nutritious, and/or ethical than factory-farmed turkey, but merely hides something that's perhaps worse under that veneer of virtue, goes to #metoo excesses and blind spots. There are no winners here, and anyone using the problem as a platform for their own advantage is lower than pond scum.
  • Special Limited Time Offer! The Salmonella Carrot Medley (Artificial Color Added) Award for discrediting an office and a nation goes to this guy — hopefully, only through 2020. Although now that I think about it, he'll continue to do so long after he's left office under whatever circumstances that happens.

16 November 2018


RIP William Goldman (1931-2018). I find it fascinating that his contributions to everything except All the President's Men (the film) are getting extensive coverage in the "appropriate" places — when arguably, All the President's Men exists as a film (and something in the consciousness of America) only because Goldman both hid and reinforced Mark Felt's role. It would have been incredibly easy to write the mysterious Deep Throat role in a way that would have been inconsistent with Felt, but he didn't. Casting Hal Holbrook helped, but wouldn't have been possible with a more looming-conspirator role as popular in H'wood (ranging from The Manchurian Candidate through many others to The Parallax View). Of course, Goldman himself downplayed his experience on that film as "miserable," but one of the inferences one can find between the lines — and not very far between them — is that there was too much "star power" trying to make itself/themselves the hero in a story in which the real heroes are a document and an abstraction, not a person.

But perhaps not as surprising given the disturbing parallels between Drumpfian electoral shenanigans and Nixonian electoral shenanigans. Or, for the matter, the evolution of the Southern Strategy. Or… never mind, this blawg is not going to turn into a conspiracy theory outlet. I hope.

But at least James Caan's feet are now safe. And so are Dustin Hoffman's teeth.

12 November 2018

"Military Initiatives" My Ass

I'm really rather pissed off, again, at the self-serving hypocrisy coming from the legal profession and its "we care about veterans — we really do" rhetoric, a biannual feature near 11 November and the last Monday in May every year. This year, it's from and about a firm that didn't interview any veterans in my law school class (free registration required), despite "actively seeking" the prospective specialties1 of two of them (both in the top quarter of the class at a top-twenty law school) while trying to expand in the Chicago market and/or bring in top talent to its home base.

One of the problems with the profession's occasional trumpet-blowing is that it fails to distinguish among the kinds of service that veterans have. Ms Blakeslee's service was important; it was different from mine (or those two classmates who should have been on that firm's radar in the 1990s). There's a difference between single-tour/enlistment veterans and career military;2 there's another difference between enlisted and officers. Lumping them together is sort of like saying "all lawyers"… BigLaw has a disturbing tendency to prejudge what military veterans will want to/be suited to specialize in — the presumption that they'll all go into either criminal law or government-contract-related transactional/real-property practice is pretty strong, and (anecdotally) continues today.3 Being older than junior partners (let alone mid-level and senior associates) on the first day of law school doesn't help interview dynamics when an interview does get offered; it's not "get off my lawn, you young whippersnappers," but "playing that kind of game like I haven't seen it before doesn't make for good communication."

The real problem with BigLaw, though, is that it doesn't actually want young associates who will speak truth to power. (It seldom promotes to partner those who will speak truth to power, either, let alone puts them in leadership positions within the firm.) I cannot count number of times during depositions and at trial that I've observed finance-industry and entertainment-industry insiders who obviously had not been told by their own lawyers (transactional before, litigators now) that their only responsibility was to tell the truth as best they knew it; that they could not sneeringly assume that anyone who asserted a claim against their company was greedy, ignorant, and doing so in bad faith; that they could not just parrot the party line no matter what their perception or knowledge of "the truth" (even as to subordinate facts) was. And I'm pretty good at math. Not once did any opposing lawyer fulfill his/her duties under the relevant rules to prevent or correct misstatements made by any of those witnesses,4 which is what veterans — and especially line officers — would have at least considered and probably found a way to accomplish, if only via an informal back channel… specifically including, but far from limited to, the firm named in the linked article (regarding a finance-industry client).

So it's a nice thought. These are nice examples, and I wish the individuals named in the article the best. They are, however, the magician's assistant…

  1. The ABA's ethics establishment can kiss my ass. Contrary to Mod. R. Prof. Cond. 7.2(c)'s misguided old-white-guys-in-the-70s arrogance, the words "specialty" and "specialist" do not necessarily imply extra certification or training. Plumbers say so in their ads; so do football players in their job descriptions (yeah, after watching San Diego a week ago I'm really confident that the "kicker" iswas a certified "specialist"). Get over it and admit that the profession and practice of law are actually more specialized than medicine; have you ever heard of an ENT doctor who did only surgery, and then only on the left side of the throat? That's roughly analogous to the "personal injury" trial specialist who only represents plaintiffs whose injuries arose from automobile collisions, and to the bankruptcy specialist who only handles low-income consumers in a turnkey operation (however necessary it is), and to the family-law attorney who only represented women in contested matters, to name only three obvious examples.
  2. Of course, those of us who served more than four years and/or were officers also had another strike against us: We didn't overcredit some of the bullshit games of the law school experience because we'd already seen them, and they weren't as "new" and impressive as law-school faculty (who almost uniformly are/were not veterans!) seem to think they are. And are usually better done by sergeants anyway. Law school was a vacation because we didn't keep a packed A3 bag, there were no imminent-threat exercises or actual alerts, and nobody was shooting at us.
  3. Leaving aside, for the moment, that the most-impressive leader among military lawyers I worked with while I was on active duty specialized in employer-side labor law….
  4. See Mod. R. Prof. Cond. 3.1, 3.4, 4.1, and 4.4. Perhaps this is continuing damage from the pre-Model-Rules imprecation of "zealous advocacy"; perhaps it's a result of the B-school imprecation that "the customer is always right," which forgets that the very nature of a profession is that its customer is the public at large at least as much as it is any individual client/patient. Or perhaps it's just rampant ignorance.

06 November 2018

Notorious RBG: Textualist

I win my internal over/under bet: I predicted to myself that the first opinion from an argued case this term would be before Thanksgiving. And this morning's opinion in Mt. Lemmon Fire is well inside the "under." (Yes, this is my sarcastic homage to last Term's gambling-regulation decision; get over it.)

In a unanimous (8–0, Kavanaugh recused, because it was argued before he was confirmed and seated) decision this morning, Justice Ginsburg took an archly textualist approach to confirming — as her opinion notes, not actually expanding — that the Age Discrimination in Employment Act reaches all state-government activities regardless of the number of employees. Private actors are exempt from ADEA requirements unless they have twenty employees,1 and a lot of smaller state units also have fewer than twenty employees — like the Mt. Lemmon Fire District.

Employing a strictly textualist approach, Justice Ginsburg points out that the statute is written otherwise.

For several reasons, we conclude that the words “also means” in § 630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. As the Ninth Circuit explained, “‘also’ is a term of enhancement; it means ‘in addition; besides’ and ‘likewise; too.’” [Opinion below,] 859 F.3d at 1171 (quoting Webster’s New Collegiate Dictionary 34 (1973)). Indeed, reading “also” additively to create a separate category of “employer” seemed to this Court altogether fitting in EEOC v. Wyoming, 460 U.S. 226 (1983). There, we held that applying the ADEA to state and local governments does not encroach on States’ sovereignty or Tenth Amendment immunity. Id., at 240–42. In the course of so holding, we described the 1974 ADEA amendment as “extend[ing] the substantive prohibitions of the Act to employers having at least 20 workers [as opposed to 25 in the original version], and to the Federal and State Governments.” Id., at 233 (emphasis added). In this regard, we note, it is undisputed that the ADEA covers Federal Government entities, which our opinion in Wyoming grouped with state entities, regardless of the number of workers they employ. 29 U.S.C. § 633a.

Instructive as well, the phrase “also means” occurs dozens of times throughout the U.S. Code, typically carrying an additive meaning. For example, 12 U.S.C. § 1715z–1(i)(4), provides:

“[T]he term ‘elderly families’ means families which consist of two or more persons the head of which (or his spouse) is sixty-two years of age or over or is handicapped. Such term also means a single person who is sixty-two years of age or over or is handicapped.”

“[A] single person” plainly adds to, rather than clarifies, the preceding statutory delineation, “two or more persons.” Just so with States and their political subdivisions in the ADEA’s definition of “employer.” Notably, in § 1715z–1(i)(4), Congress repeated the “sixty-two years of age or over or is handicapped” qualifier to render it applicable to “a single person.” In the ADEA, by contrast, Congress did not repeat the “twenty or more employees” qualifier when referencing state and local government entities. This Court is not at liberty to insert the absent qualifier.

Mt. Lemmon Fire Dist. v. Guido, No. [20]17–587 (PDF), slip op. at 4–5 (record citations omitted, typography corrected). Plus, Mt. Lemmon Fire is an ardent affirmance of the Ninth Circuit, which now has a 100% affirmance record for this Term. <SARCASM> But that's not a partisan issue. Not one little bit. </SARCASM>

This is a sensible opinion. It also points out a critical problem with legislation: Ambiguous writing. There was no good reason except the tradition of not using typographical and other clarifying devices to leave this in a narrative paragraph that would have rightly been criticized as containing multiple subjects by your ninth-grade English teacher. Consider this alternative — the form that should always be chosen when creating definitions (I'm looking at you, 17 U.S.C. § 101 and your run-on definition of works made for hire):

The term ‘employer’ means:
(1) a person engaged in an industry affecting commerce who has twenty or more employees, or any agent of such a person; or
(2) a State or political subdivision of a State.

That puts all of the related material inside each subdivision, independently and clearly. So, Congress, if you insist on writing badly, litigation results. Expensive litigation.

  1. This leaves for another day the reach of the ADEA into the modern "gig economy" in which such a high proportion of what would have been understood as "employees" at the time it was passed is now treated as "independent contractors" and "freelancers" and "independent service associates" and anything but employees. I not-all-that-respectfully suggest that Congress has had what passes for its head up its rectal orifice for at least two decades on this issue, not to mention taxation, eligibility for work for hire, collective bargaining, and a plethora of other seemingly unrelated things that depends upon bright-line "employment" status. I won't speculate on this at all, because the record is damned near iron-clad that this arises in large part due to capture of Congress by anti-union forces starting in the 1980s and gets even more intellectually dishonest (and frequently downright corrupt) from there.

04 November 2018

Prelude to the 1812 Overture

This day-before-Guy-Fawkes-Day, you American citizens have only one duty over the next two days: Get your butts organized and informed and vote. Or you risk Guy Fawkes Day coming to these shores.

One way to look at Fawkes's aborted revolution is that it was a reaction to one-party rule and voter suppression. Without attempting to excuse the problems with putting the Catholic Church's own medieval bigotry (it was still medieval, the Renaissance/Enlightenment had not yet hit either doctrine or governance of the Church) back in charge, the fundamental problem was voter and viewpoint suppression. If one actually reads the source materials of the Jacobite Rebellion and of Fawkes's own wannabe terrorist cell — there's really no other way to put it — the parallels are disturbing. It wasn't skin color but house of worship that was the dominant distinction... but women's rights, and Make AmericaEngland Great Again movements harkening back to the prior illegitimate "conquest" of France, and more other parallels than I can point to conveniently in a blawg post, jump out and beg for everyone involved to consider that in the bowels of Christ they might be wrong.

So, to avoid violent overthrow by would-be bullies, get out and vote. Get enough information to actually vote intelligently, not just by label. Here in Washington, I've already voted by mail. I made sure to get the information on the actual ballot initiative to vote — very much holding my nose in going along with the soft-drink industry — in favor of a restriction on imposing local sales taxes on food and beverages (epitomized by "soda taxes") because the available evidence is that such taxes are lazy, discriminatory, and ultimately counterproductive for the "behavior change" trumpeted as their benefit. I read the entire 31-page text of the initiative imposing minimal restrictions on paramilitary-grade firearm sales to ensure that there's no Constitutional problem (there isn't). I even reviewed the recent history of the Spawn of Satan and his family in another Congressional district with an open seat just to make sure that my memories of that family from growing up were accurate (they were, and in fact they're understatements regarding the tangled web of conflicts of interest).

But the key point is that I voted. Y'all do the same, y'hear? I'd really rather avoid fireworks of that ilk.

19 October 2018

Unreviewable Circuit Split(s)

Today, the Eleventh Circuit issued its second opinion (and, by my count, the eleventh substantive opinion overall) in the nearly-decade-old Cambridge Univ. Press v. Georgia State Univ. matter — the "electronic coursepack" case. You can find the opinion on the Court's website (PDF download). Unfortunately, the opinion is opaque, a bit oblivious, and fails to disclose the circuit split(s) at all.

The core of the opinion — and, ironically enough, the part that discloses the circuit splits to those of us who actually read both the Copyright Act and opinions interpreting it, instead of relying on half-assed/less-than-a-quarter-considered self-interested bullshit spewing forth from various "advocacy" organizations that never actually represent the full scope of those they claim to be speaking for — is, naturally enough, at the end.

We affirm the order denying the publishers’ request to reopen the record, but we vacate the judgment entered on remand. The district court must reinstate its earlier findings that factor four strongly disfavors fair use [under 17 U.S.C. § 107's framework] for 31 of the 48 excerpts. The district court must eschew a quantitative approach to the weighing and balancing of the fair-use factors and give each excerpt the holistic, qualitative, and individual analysis that the Act demands. And the district court must omit any consideration of price from its analysis of the third factor. Because the district court’s award of attorney’s fees and costs was based on its erroneous fair-use analysis, we also VACATE that award and the underlying determination that the University is the prevailing party.

Cambridge Univ. Press v. Albert, No. [20]16–15726 (11th Cir. 19 Oct 2018) ("Coursepack XI"), slip op. at 24–25. This is a smackdown for the "reuse" community that will entail substantial howling and claims that the decision eviscerates the Internet.

In no particular order, here are the circuit splits that I see Coursepack XI either creating or confirming. All deserve Supreme Court review, because all influence both individual conduct and specific litigation. I am… doubtful on whether there are even three votes on a petition for certiorari from the members of this Court now that Justice Kavanaugh has taken his seat.

  • At a fundamental level — one never acknowledged by this court, nor virtually ever by any other — this is a rejection of the fifth fair use factor. Section 107 provides for four factors to be considered "among others" in determining whether a specific use qualifies as a fair use: Character of the (re)use; the nature of the source work; the amount of the source work that has been reused; and the effect of the (re)use on the market value of the source work. Missing from this list is the pragmatic factor that usually dominates the decision to sue, the process of discovery, and the weights accorded the four factors: The administrative burden of obtaining permission for (re)use. This is the general class into which the "orphan works" problem falls. Here, the Eleventh Circuit has elsewhere in the opinion (pages 22–23 in particular) indicated that a substantial part of that administrative burden — the cost to the (re)user — is irrelevant. This is inconsistent with the Second Circuit's approach in the Google Books fiascos.
  • My mantra for two decades now has been that most copyright cases concern civil procedure and burdens of proof at least as much as they concern the details of copyright doctrine or the minutiae of originality determinations. Cf., e.g., Ellison v. America On-Line, Inc., 357 F.3d 1072, 1080 (reversing because the trial court improperly granted summary judgment by not considering a fact found elsewhere in the trial court's opinion). Coursepack XI is much the same. Today, the Eleventh Circuit rejects "mechanical" class-wide determinations of fair use. This, again, directly conflicts with the Google Books fiascos… which are not cited anywhere in Coursepack XI, and never characterize what was done by the trial judges in those matters as "mechanical" (although it undoubtedly was but for use of that word). Indeed, the closest the Eleventh Circuit comes to Second Circuit caselaw is citing a fragment from a marginally relevant opinion that doesn't quite mean what it says when considered "in light of the facts of [the] given case."
  • Coursepack XI also depends upon — but does not discuss — treating fair use as an affirmative defense that must be proven by a preponderence of the evidence by the party asserting fair use. This conflicts with the underlying assumptions in some mass-notification DMCA cases, such as Lenz v. Universal Music Corp., 801 F.3d 1126, later op., 815 F.3d 1145 (9th Cir. 2015) (holding that a DMCA notice may not be proper if the issuer of the notice fails to consider whether the complained-of (re)use constitutes fair use). And it sure as hell conflicts with the mantra of the internet "industry" and "reuse" community, both of which believe (without ever saying so) that there needs to be a bright-line rule that immunizes them from scrutiny by rapacious copyright owners who are seeking only to profiteer from culture. Or something like that.
  • Finally for the nonce, there's also an unstated circuit split with the Fifth Circuit regarding sovereign immunity of state actors. Georgia State University more probably than not qualifies as an "arm of the state" of Georgia, meaning that anything done specifically by it (or those standing in its shoes) is immune from copyright liability. Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000) (concerning a university press that is part of the University of Houston). To say the least, this area of jurisprudence is a mess; it also conflicts with substantial parts of the Google Books fiascos.

That's enough for now. If nothing else, this brouhaha is another exemplar for shifting all copyright matters to the Federal Circuit rather than leaving them in the regional circuits — if nothing else, at least the incorrect doctrine would be uniform, and consistent with the constitutional grant of power under Art. I § 8 cl. 8, which does not distinguish between "inventions" and "writings" except by acknowledging their respective existence. Too, that would be consistent with the internet "industry"'s call for broad, uniform protection for itself. But it would get things in front of judges with more knowledge of, or at least exposure to, both the limits and capabilities of science and engineering than is found in the regional circuits… funny how the internet "industry" isn't also calling for nonregionalized copyright appeals, isn't it?

Oh, you wanted to know the result? How pragmatic of you! The Eleventh Circuit basically held — although resubmitting on remand — that despite the inept presentation of the matter by counsel for the various publishers, the majority of the works (and perhaps virtually all of the works) that were taken for "coursepacks" had proper copyright claims, and that the fair use defense had not been established on its face but required reweighing. For a third time.

15 October 2018

Dear Tax Preparation Software Vendors

Bite me.

Really. I say this on 15 October because I've been forced to assist three different taxpayers panicking on the last day of their "normal" extensions because your software sucks so enthusiastically. In each instance, it was software design error, not what you so blithely assert is "user error." Here's just one example. A user of the program that sounds like it might begin with a fish — if only because it produces such fishy results — had done all of the work necessary to get her return ready to file. Over the weekend, even, so it's not purely last minute (one of the 1099s had to be reissued to her because it was sent to an old address). But your fishy program found a fishy error… and gave an incomprehensible error message, demanding that she go back to an "untitled" 1099 and enter the state in which it was issued. "Untitled" 1099? Well, there wasn't a 1099 captioned "untitled" in the list of 1099s. Instead, one had to go back into the list and review each one, and find that one was untitled: Untitled due to your stupid entry routine, in which if a user hits "enter" by accident twice (really easy to do on a tablet!) it closes the current entry form and starts a new blank one.

One would think that the resulting error message when the user does what comes naturally — backs out of that phantom form (whether a 1099 of some kind or a W-2 or anything else doesn't seem to matter) and assumes that the program is smart enough to see that since there's no data of any kind on the entry form, it should be ignored — would at minimum say "You started a {name of data form} but didn't enter any data. Delete that entire form?" But nooooooooooooooooooo, you vomit up the error message noted in the previous paragraph. Requiring the user to find someone who knows your fishy program's quirks that aren't in the bloody help (in-program or online) and can, with a couple of minutes' sleuthing, find the offending blank form and delete it. On tax deadline day while that user is caring for a family member in chemotherapy.

This leaves aside the inaccurate assumption that your programs and accounting paradigms — especially from that vendor with a parallel family of bookkeeping products whose name tries to imply speed — are accurate in the first place. For any author, creator, or anyone else who receives payments from exploitation of intellectual property on which they neither did labor nor took any legal action (such as signing a contract) during that year, not so much. And so on; all one need say is "Uber" to make things really interesting. Let's just say that the accounting models in your software are so conservative that Barry Goldwater would look like a flaming leftist.

If only to starve you assholes of more revenue from confused taxpayers trying to do the right thing and not engage in massive multimillion-dollar tax schemes that appear to cross the line from "planning" into "avoidance" and further into "evasion," I hope for a simplified system that makes people realize that even the IRS's screwed-up fill-in PDFs are good and simple enough to use. (How screwed up? On the 1040, the SSAN doesn't get printed in the right place… and one cannot actually put the date onto the 1040 for one's record copy, because that's a non-fill-in part of the form!)

01 October 2018

First Monday

It's the first Monday in October, and the Supreme Court issued its order list after the "Long Conference" today. Buried in the middle is one of the weirdest orders I've seen:


Because the Court lacks a quorum, 28 U.S.C. § 1, and since the only qualified Justice is of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. § 2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Thomas, Justice Ginsburg, Justice Breyer, Justice Alito, Justice Sotomayor, and Justice Kagan took no part in the consideration or decision of this petition.

Order List, 01 Oct 2018 at 62 (PDF) (typography corrected).

So the junior justice, sitting alone, decides for the Court… presumably, he didn't need to answer the conference room door to do so.

23 September 2018

Living in the Past

Without claiming to be a victim or to speak for victims, I think I have some insight into why victims of sexual misconduct find it difficult to come forward at any time, let alone immediately. I don't claim this is definitive; I do think it a useful starting point in evaluating claims, both of guilt and innocence.

I spent the better part of a decade as a commanding officer in units ranging from about 300 total personnel on up. Several incidents during that period — years before law school — shaped my approach to these matters. Twice, I was the CO of a victim reporting a sexual assault; once, of the alleged perpetrator. Two of the reports were within two days of the alleged event; one was substantially later. (I also investigated a few incidents at the direction of higher authority.) None of the incidents, however, involved significant physical evidence that either supported or undermined the initial report. Trying to get truthful, accurate statements out of anyone involved, and out of any witness to the incident or its context, was incredibly difficult, and no doubt was quite difficult for the individuals being interviewed.

Those being interviewed know full well that the interviewer is going to be ripping off whatever bandages have been applied, whatever stitches were put in, and probe the wounds. Without anesthesia. With probably unclean fingers, in a very official setting and certainly not one's own space... especially when those fingers connect to bars or oak leaves on the shoulder instead of stripes on the sleeves, because power dynamics sure as hell enter into this. If you really don't think there are power dynamics involved — even for civilians — you've never raised a kid… and probably never been one.

It's incredibly hard to just listen. Not interrupt to ask for clarification on what matters to the interviewer's perspective. Not judge. Not bring in external perceptions of credibility, especially when those perceptions are at best second-hand and relate to things like "job performance" instead of what matters. Not improperly prompt a subject toward what the subject thinks the interviewer wants to hear. Not reject "I don't know" and "I don't remember" as valid responses. And, simultaneously, not ignore all of the problems with human perception and memory from even those with the best of intentions and no impairments.

And that's not as hard as volunteering to have those wounds probed, especially when expecting to not be believed, and when they haven't healed.

10 September 2018

The Price is (Alt-) Right

Professor Warren (I'm using the title she's earned that should get more respect than "Senator" after Thurmond and McCarthy and so many other miscreants) properly called for the "Resistance" to follow the bloody law: If they believe Trump is unfit for office, invoke the 25th Amendment. I'm actually rather pissed off that I had to go down eleven items in my search list before finding one with a non-misleading headline that doesn't miss the point entirely.

What this reflects, more than anything else, is the ahistoricity of the American media/conversation. From the 1950s until Watergate, there was a thread of fictional works that emphasized the duty of subordinate officials to follow the directives of the executive — even when they disagreed with them as policy matters — unless and until willing to pay the personal price for disobedience. Wallace's The R Document, Knebel & Fletcher's Seven Days in May (later adapted for a Kirk Douglas film), even Burdick & Wheeler's horribly mischaracterized (and overblown) Fail-Safe (either the unsatisfactory novel or the unsatisfactory film) were all part of the "national conversation" prior to Watergate, but disappeared. So, too, has the thread, as implicated in Seven Days in May itself: Now, the narrative almost always includes an immediate reward for "resistance." No one spends time in a Birmingham jail any more…

Instead, "resistance" — from the mildest speaking truth to power through active resistance up to whistleblowing — has lost the element that makes it appropriate: Perception of personal risk and the balancing act that prevents descent into anarchy. It's now as much a part of the playbook for personal aggrandizement as anything else; the rats leaving the sinking ship are demanding their fifteen minutes of fame (hoping to parlay that into a continuing slot as a pundit, which has much less risk of failure because it doesn't require the effort and expertise of actually making something happen and dealing with the unanticipated consequences) instead of doing anything to plug the leak… or prevent the next one. It's 20/200 hindsight from ignoramuses who espoused an ideologically correct policy and then discovered that policy didn't fit anything resembling facts (or even alt-facts). It's refusal to accept that Mark Felt neither sought nor obtained glory, riches, higher office, or that fifteen minutes through his acts of "resistance."

That's what Professor Warren is getting at, which you'll understand if you actually read/listen to her tweet (not linked; this blawg never links to that social media platform, but you can find it in Ms Martinez's article) or website instead of the misbegotten headlines and soundbites. Actions have consequences, and they're often mixed. That's perhaps too, umm, professorial a view for one to expect from a Senator elected in our broken two-party binary-merit system that forces us to choose the lesser evil all time because the choices we are presented are almost always evil; and, therefore, that's not what the media heard or continues to spin. The irony that so many of the commentators criticizing the oversimplistic soundbite view of Professor Warren's comment are (or at least portray themselves as) "resisters" who used that "resistance" as a stepping stone to a larger platform has escaped just about everyone.

disclosure: As a newly minted lawyer in the mid-1990s, I represented consumers in a number of class actions that were related to or going through the bankruptcy courts, and more generally in consumer finance. Professor Warren was a leading authority and provided valuable consultation on some of those matters… including, on more than one occasion, pointing out that one of the firm's dearly-loved positions was not defensible in law, but required a legislative fix if that was even possible.

27 August 2018

Overcomplicated Link Sausage Platter

Also overdue, overaged, and over the 'net.

  • As I've been arguing for decades, the courts by their very nature are not equipped to deal with disputes that even moderately approach science. The ABA's recent misguided "ethics" opinion on judges attempting to self-educate themselves is revealing; so, too, is the hoary old chestnut Palsgraf v. Long Is. R.R. Co., 162 N.E. 99 (N.Y. 1928), which reaches fundamental principles of tort law and responsibility by getting both the facts and accepted practices flagrantly wrong. (For starters, no one who handled fireworks or other explosives even occasionally would have accepted the handling of the stuff that went boom, even under 1920s norms, and it goes downhill from there.)

    But those are generic problems not tied to anything in front of any court at the moment, or at least not obviously so. Let's take a step back to methodology instead of factual or doctrinal sophistication, though, and see the impending problem facing the Supreme Court in multiple matters on its 2018 docket. Hint: What is the mathematics requirement for acceptance to Harvard Law School… both now and when the present justices were law-school applicants? <SARCASM>It's the same mathematics requirement for any other federal constitutional office, which explains a lot.</SARCASM>

  • Those problems are, however, tied to the various conceptual flaws in economic policy decisions. It's bad enough that there's criticism of the basis for behavioral economics (criticism, I should add, that appears at first glance to have corresponding flaws of its own, beginning with the distinction between designed-laboratory conditions and the messiness of the real world — and descending from there into the distinctions between means and medians, the very definition of the behavior in question, mixed motives…).

    Reaction profile diagram from Michigan State University, Chemistry 251–53 (Organic Chemistry)Time is also a problem. So are multiple pathways, multiple reactants, multiple products, activation energy, and most particularly capture of energy released. Economists don't ever ask the questions about capture, or even ask why long-distance runners don't just light a match and burn pure glucose to more "efficiently" release more profitenergy. Or, for that matter, ask what it takes to get that match in the first place, or how much "activation energy" it takes to light it… <SARCASM>Surely if it was as simple as mainstream economic thought implies — especially, but not only, various "trickle down" theories — nature and evolution would have gravitated that way. Instead, though, more complex organisms have more complex energy storage and usage systems.</SARCASM>

  • A more-recent piece in The Speculatator displays the usual problems with that publication's engagement with complexity. Mr Coville asks what we know about Shakespeare's wife, using that as a jumping-off place for…

    A third option is to try to glimpse him through the people he interacted with. Drawing on old biographies, novels and plays, Katherine West Scheil documents how for more than 200 years Anne Hathaway has been used as a keyhole through which to spy on the playwright as husband and lover. Her review of these varying interpretations demonstrate that Anne has been distorted to fit the Shakespeare each writer or era wanted to see.

    Alex Coville, How do we envisage Shakespeare’s wife?, The Spectator (18 Aug 2018, online ed.). Which rather assumes its conclusion: That there is complete unity between the individual William Shakespeare and the playwright known to us now as "William Shakespeare." I've long held that rather than looking for "the" Shakespeare — particularly since there are no writings at all, but only after-the-fact transcripts of what the oft-illiterate actors said their lines were, sometimes months or years after playing the parts — we should be looking for a Renaissance-era Edward Stratemeyer (or, perhaps, Franklin W. Dixon or Carolyn Keene … or, just because I like picking on him for deceptive sales practices, former marketing executive James Patterson). It's not like there aren't any precedents, even in the late sixteenth century; just take a look at the "authorship" of Amadis of Gaul, even as recounted in the famous library scene in Don Quixote! More to the point, take a look at what the "publishing industries" actually looked like under the 1566 Licensing Act.

  • Personally, I'm of the devil's party, too. Like that's a surprise. But at least it beats learning useless foreign languages; the foreign languages I've studied are useful (in contrast to most Americans who don't even try).