28 May 2017

Rights Said, Fred

Context matters to meaning. Pretending otherwise leaves one no better off than Fred Korematsu… or Right Said Fred.

The Trump travel restrictions implicate a difficult — and historically ugly — aspect of jurisprudence that our appellate courts (and our Supreme Court in particular) have gotten wrong approximately 80% of the time that they have confronted it. It breaks down into two parts, both of which can create difficult decisions that appellate courts would just rather not deal with.

What part of the nonofficial context of an official action is admissible evidence, preserved for appeal, of the intent behind that action?
How much evidence (of any kind) does it take to overcome the presumption that policies adopted by elected officials were adopted in sufficiently good faith that the courts may reject the policies on rights-based grounds?

The Fourth Circuit's decision Thursday in IPAR just makes this two-step inquiry more obvious than most… if far from explicit. Or clear. Or easy.

There are several sources of this problem. One is that judges (and, more broadly, the legal profession) don't understand — or care — about the distinctions among "fact-gathering process," "fact," and "proof." I realize that's a pretty broad smackdown, and that there are a few exceptions… but it makes a difference even when "fundamental rights" are not directly at issue. The judiciary and the profession have so little personal experience with the process of rigorous fact-gathering that they overly discount lab technique, contaminated samples, poor recordkeeping, confirmation bias, and overt fraud — except, perhaps when some combination of the above rises to a level that would shame a Bond villain, such as overt insertion of religious doctrine into public schools in an overt effort to ensure conformity of thought. But these rare exceptions occur almost entirely at the trial-court level when they do at all. Even when it's excrutiatingly obvious — that there is no possible explanation but for Bondesque villainy — appellate courts just won't go there, such as Santa Fe Ind. Sch. Dist. v. Doe (<SARCASM> it was entirely the kids' decisions, untainted by any parental pressure to conform to majority religious belief in the community </SARCASM>) and darker self-inflicted wounds like Korematsu, Plessy, and Dred Scott.

The inquiry noted above is also one way to understand the late Justice Scalia's disdain for so-called "legislative history." He answered the first question "none" so that he never had to even ask the second question. The nicest thing that I can say about this is that it respects the limits on judicial review too much by presuming not just that elected officials tend to act in good faith and therefore should not be second-guessed, but by presuming that they always do so and therefore are never subject to second-guessing. (Except, that is, when the "elected officials" in question are state prosecutors — the one class of government actors Justice Scalia consistently did subject to substantive review for their good faith.) I reject this view because, thanks in part to that tour as a Protocol Officer, I know too many of Those People: Elected officials, appointed-and-confirmed-by-the-Senate officials, and apparatchiks. Far too many to accept a blind, or even broad, presumption of "good faith without improper pretext." And that's primarily because they're human (most of them, anyway), not just because I agree/disagree with the particular pretexts.

This refusal to examine legislative (or executive) motivation matters to authors and others in the arts in a very direct manner. Consider, for example, the foolishness and invidiousness of 17 U.S.C. § 201(b):

Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Now combine this with the definition of WFH found in § 101, and the actual legislative history of this clause. The constitution grants Congress the power to protect authors (Art. I, § 8, cl. 8), but § 201(b) redefines "author" to mean something that no native speaker of English would recognize as an "author": The patron. We recognize "Leonardo da Vinci" instead of "Ludovico Sforza" for good reason. Congress chose to do otherwise — under immense pressure from, well, patrons — but its "good faith" in doing so has remained largely unquestioned.

What these disparate examples demonstrate is that these are hard questions. Unfortunately, since Justice Warren left the bench there has been an increasing tendency for the courts to evade hard questions, usually on the premise that those questions are for the elective branches. Sometimes, though, there really isn't an opportunity to discern elective anything. "True foreigners" were breathtakingly rare in the US of the 1860s more than a mile or two from a seaport or clearly delineated border. Just why, then, does the Fourteenth Amendment's Equal Protection Clause limit itself to United States citizens? It probably has at least somewhat to do with the occupants of this continent who preceded the Northwest Europeans… but one can't discern that from what passed for an official record in the mid-nineteenth century. And that's wrong, but by burying it elsewhere so it's harder to get into evidence, it's not a clear concern.

25 May 2017

Doing It Yourself

The United States Court of Appeals for the Fourth Circuit gave the Executive Orders concerning them daaaaangerous Muslims trying to enter the United States exactly what the orders deserved: Strict scrutiny followed by incredulity.

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

International Refugee Assistance Proj. v. Trump, No. [20]17–1351 (PDF) (4th Cir. en banc 25 May 2017), slip op. at 12.

A few items leap out on initial reading (sorry, guys, I've only had this 205-page monstrosity for a couple of hours):

  • The one bit of reversal is that the injunction cannot issue against the President himself (see slip op. at 78–79). What that means, I suppose, is that Mr. Trump can, himself, stand at Customs and Immigration at JFK and impose his Executive Order. He can't have any help, though: The injunction does stand against everyone in the Executive Branch, except the President himself.
  • A majority of the en banc court held Trump's campaign statements against him, specifically holding that those statements constituted sufficient evidence of improper religious purpose (even if the Orders were treated as facially neutral… which they're not, any more than a proclamation that no book cover may appear in crimson, ruby, or amaranth, but regulates no other color, doesn't inherently express animus against red). One concurring opinion went farther by discounting the campaign statements… but reaching the same conclusion based just on public statements made since the inauguration.
  • There are many citations to Korematsu in the controlling, majority opinion — specifically, to Justice Murphy's dissent, as if the dissent is the accurate statement of Constitutional law. (It is.) IRAP thus provides an opportunity for the Supreme Court to specifically adopt the reasoningn in the Korematsu dissent as good law, and thereby abrogate one of the most serious errors it ever committed. If, that is, the Drumpf Administration appeals… For that reason alone, I would recommend granting cert.: It's an opportunity to, if nothing else, put a bandage on a self-inflicted wound.

18 May 2017

Burn the Witch!

Somewhere — perhaps in the White House, more likely on one of his other properties where he can visit it frequently to engage in the kind of narcissistic self-reflection we've come to expect of him — there's a picture of Donald J. Trump. It's a magical-realist picture, in the same vein as Gabriel Garcia Marquez, and Mario Vargas Llosa, and perhaps more to the point Oscar Wilde.

Oscar Wilde? I hear you ask. What does he have to do with South American magical realism, with its archly political context? There's a simple answer: The Picture of Dorian Gray. It, too, is archly political in the same kind of personal sense as are One Hundred Years of Solitude or Midnight's Children or any of the other recognized core works in twentieth century magical realism. Indeed, there's a very good argument that the real ancestor of magical realism is Voltaire… but that's just a bit too tangential for the moment.

My point is that the Picture of Donald J. Trump is a witch who spews forth defectively-spelled curses. And he should be afforded all of the due process from being accused of witchcraft himself that he would afford the modern-day witch: Immigrants from nations that sometimes produce terrorists… on the basis of their immigrant status, because he has no intention whatsoever of applying any of this to native-born white 'murikans. Like Timothy McVeigh.

At this stage, I'll light the first torch, using a copy of The Art of the Deal for something more useful than its contents: Tinder. And spell the prominent English family name "Grey" correctly, in contrast to Wilde (in his futile effort to avoid libel proceedings)…

16 May 2017

Rose Mary's Baby

A long time ago, in reclaimed swampland just shy of 4600 kilometers away, Rose Mary Woods said she caused an 18½-minute gap in a tape. Leaving aside for the moment the contortions involved (of both her physically and the truth), I'm not sure whether I really want to know what was in that gap, one of the key reasons that the then-President resigned.

Application of this excursion down amnesia lane to recent events in the same damned building is left as an exercise for the student.

* * *

When pontificating, it's always helpful to remember what you're actually pontificating about. Even, and perhaps especially, when talking about the ethics of serving a hyperpoliticized/hyperpartisan administration. The article's list of "the five additional factors that inform decisions at [licensed professional] level" in the administration include only:

  1. Service to the President and Administration
  2. Political Pressure
  3. Institutional Commitment
  4. Reputation
  5. Personal Integrity

The problem is that there's an overriding factor that neither this list nor the remainder of the article acknowledges explicitly; it is, at best, buried as an implicit consideration (but only consideration) in the third factor. Any military officer knows what it is: The mission. For military officers, it is "to protect and defend the Constitution of the United States against all enemies, foreign and domestic." In our oath of office, that comes before respecting the chain of command or doing anything else. It is the mission statement.

Nowhere in that article do I see an acknowledgement that the mission comes first, and must be properly defined (not just "killing commies for mommy"). If, indeed, the OLC operated that way, it explains a great deal about other lawyer problems. For every member of the Administration — not just military officers, but all officers of the United States, whether of grand title or merely "inferior officers" — the Constitution comes first. The object of power may be power, but the definition of power is the Constitution. It's too easy for apparatchiks to forget that… and, apparently, too easy for lawyers (and law professors) to do so, too.

Since it's finals time, I'll give that article a C.

09 May 2017

Fake (Publishing) News

Apparently, PW never learns, or just doesn't care about getting its facts straight before publishing party-line bullshit. I shouldn't be surprised, and probably shouldn't even be appalled, to see PW yet again trying to blame Amazon for everything that is wrong from the perspective of large commercial publishing conglomerates (and unsophisticated/agency-captured related organizations).

Today's example includes this turd:

Those objecting to this policy say it is allowing Amazon to deprive publishers of sales and authors of royalties. (Because re-sellers are not buying their copies from publishers, these sales will not be counted as sales, and money derived from them will not go to publishers or authors.)

with a mealymouthed noncorrection at the end (italics in original):

Update: After this story ran, we heard from Amazon that while the phrase "new condition" was used in a letter sent to resellers what Amazon defines as new is found in its guidelines as: "brand-new, unused, unread copy in perfect condition. The dust cover and original protective wrapping, if any, is intact. All supplementary materials are included and all access codes for electronic material, if applicable, are valid and/or in working condition."

Amazon did acknowledge the letter may cause confusion and also noted that since resellers need to rate what shape the book is in they would use "new condition" rather than just "new."

Jim Milliot, "New Amazon Buy Button Program Draws Ire of Publishers, Authors" (09 May 2017).

This is fake news.

  1. That nature of "update" calls for an in-story correction and withdrawal.
  2. The reporting of speculation by mostly unnamed "industry figures" (the only ones named are the Authors' Guild, which doesn't exactly have a track record of reliability, and the author of a HuffPo article, which is a strange place for a for profit publisher) as "fact" is not dealt with by the update.
  3. In any event, the implication in that first paragraph — that authors and publishers get exactly zero from the unspecified "resellers" — is false as a matter of law and fact. On the initial transfer, the books (consistent with Amazon's definition stated in the "update," which I've known about in substance for years) are paid for. That means the publishers were paid and the authors are paid.

    Whether they are being paid fairly is a separate question entirely. In particular, the article never notes that for most books contracted for before approximately 2006, Amazon's current customary discount already makes any sale through Amazon a "cut-rate" sale: The discount falls under older "high discount" clauses, and perilously close to presently-being-imposed "high discount" clauses. Thus, this is at best an illusion… or, more to the point, should have been treated as an opportunity to actually inquire into the facts and their context.

  4. Kirtsaeng is the law. So is the First Sale Doctrine embedded in § 109. This entire article is based upon assuming that the First Sale Doctrine (which has been statutory law for a helluva long time) is somehow new or a surprise to publishers and authors or makes used book stores somehow inimical to publishing. Of course, the article can't be bothered to examine its assumptions.

I could go on, but I won't. I will, however, point out an undisclosed conflict of interest: PW's ultimate ownership has (and even under prior ownership also had) substantial interests in the textbook market — perhaps the most notorious "used books hurt new book sales" area of all.

The entire turd is an attack on Amazon made while ignoring existing bookselling custom and practices… with the unstated implication that no other vendor/seller/reseller/industry player is engaging in similar practices. Technically, every bookstore "listing" or "shelf" containing returnable books is subject to the same objection. Had the "new" "new book" policy actually been pointing at advance reader's copies and reviewer copies, or other used books being sold "like new (but not new)," there might have been grounds for further investigation. Of course, one must then wonder just how a reseller would have enough copies available to consistently "win" a "new book" button, if the source is ARCs and review copies (many of which, admittedly, are never read, but that's another issue entirely); and the same goes for any vendor of used books in "like new" condition. That, however, would have required actual investigation, exposure of dubious industry customs and practices that the major commercial publishers and booksellers would rather keep out of more-general awareness, and discussion of the mechanics and dubious legality of the returns system. It probably couldn't be done in an 800 word article that doesn't cite to facts, only to third-party whingeing.

Amazon is not an angel or savior (and certainly not when it comes to actually infringing material!). Neither is it the devil. Get over it.

07 May 2017

Thirty-Five Characters

The Ninth Circuit — or, at least, the former Chief Judge of the Ninth Circuit — demonstrated some real judicial independence on Friday, with four words (thirty-five characters including spaces and punctuation). In context, those four words demonstrate some that is right and much that is wrong with contemporary American law.

KOZINSKI, Circuit Judge, ruminating:

Fisher v. Kealoha, No. 14–16514 (9th Cir. 05 May 2017) (PDF), slip op. at 11.

  • I'm pleased to see a judge actually labelling his opinion as "just thinking about something I don't have to decide, but that I think is necessary for nonlawyers to understand why the main opinion is so free of context." Such ruminations appear throughout opinions from other jurists, if seldom so explicitly labelled… and many of them at least advance the conversation, if not necessarily the case at issue.
  • But "ruminating" is not an approved signal appearing in the BlueBook — or any other manual of legal citation. And it's a per curiam opinion. So Judge Kozinski has just created an exceptionally interesting quiz question for first-year legal writing classes.
  • That has no precedential value at all. It is, at best, an advisory obiter dictum opinion saying that something else needs to be decided in the abstract, but that some kind of flaw in the matter at hand keeps it just a side issue. (It's a "something else" on which I think both he and the Supreme Court are wrong on linguistic, historical, and rational grounds, but that's just… ruminating with no precedential value at all.)
  • It also indirectly points out the problems with overrigid application of the advisory opinion doctrine by overnarrow consideration of what is a "controversy." It is perhaps understandable to allow a legislature a short period of time to revise existing legislation after being given a clear and final judicial directive that existing legislation is constitutionally infirm. It is perhaps understandable to allow the executive the same privilege regarding its nonlegislative policies and procedures. This is part of "separation of powers."
  • But there comes a point when the time for all deliberate speed has passed. Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 234 (1964). And even though the judiciary is only a part of a system of government — with highly proscribed powers on when and how it may act — there necessarily comes a point when it must take responsibility for the government acting as a whole. I think "a decade" is a reasonable period of time for legislation… presuming good faith in the legislature… darn, I've just destroyed my whole argument, haven't I?

Because, ultimately, that's what Judge Kozinski's rumination really is. He's relying upon a nine-year-old Supreme Court opinion that made further legislation and administrative directives necessary, however much (and with however much justification) one disagrees with that opinion, and poking various legislatures and executives in the ribs with his rhetorical elbow. "Do your job, man, before someone structures a mandamus action and I have to tell you formally to do your job." Given that firearm distribution is an emotional issue (leaving aside any substantive complexities and the evolving interpretation of Heller as "final but fatally flawed," albeit not quite a "self-inflicted wound"), that's about all he can do. So, perhaps, it was the wrong signal. Perhaps it should have been:

KOZINSKI, Circuit Judge, discontented but neither concurring nor dissenting:

except that the actual opinion is too civil (in the "civil conversation" sense).

04 May 2017

Before 1977

Have a nice day, John Mitchell.

Same to you (for a different day), Douglas MacArthur.

And to those of you who think 04 May began to matter only in 1977: Get a life! (And both YouTube and Viacom need to learn a little bit about fair use, too, but that's for another time.)

29 April 2017

Independent "Bookstore" Day

…and why I'm not participating (aside from health and related issues).

In this hybrid college-and-agriculture community 100km up the coast from Seattle, it's simple: The local independent bookstores really aren't. They're not truly independent, in that many are outposts of other agendas (such as the evangelical-protestant and New Age outlets). They're not bookstores, such as the comic shop (overrun with not-to-my-taste superhero material) and the purportedly award-winning quaint indy with approximately half of its floor space devoted to products other than books (and even that is not well populated, arranged, or displayed).

More to the point, that purportedly award-winning store also has the serious difficulties raised by the combination of insufficient diversity and insufficient size, reflected in some curious decisions. For example, speculative fiction imprints are relegated to the equivalent of approximately three six-foot bookcases in a corner on the top floor… but not intershelved, like speculative fiction from imprints that don't use rockets or dragons (or space marines or mostly-naked "barbarians") on the cover. The Sparrow, The Handmaid's Tale and Oryx and Crake, 1984: A Novel, Gravity's Rainbow and The Crying of Lot 49 — all are intershelved with the main collection, along with mystery/true crime. This is just one example of curiously selective ghettoization, which is not at all justified by the size of the store. And it's actually even worse with military history, with law/government/politics, and with the age-old mythology-versus-religion problems. Meanwhile, this store does interleave used with new books…

If it sounds like I'm picking on one particular store, in a way I suppose I am. I'm more generally objecting to the established retail wisdom that seems to dictate both store layout and store staffing, and these problems are worse at independent nonspecialist stores that do not have quick access to a larger catalog offsite — not B&N now, but Borders or Brentano's a quarter of a century ago. Specialist stores in the US tend to be actually worse — just try finding a nonbestseller that by content fits within the specialist store's stated collection, but is not from an allied specialized imprint, on the new release shelves. Routinely. (Yes, I'm looking at all of you, specialty stores in the Bay Area, to name just one particular desert I've encountered relatively recently… when I could park within walking distance of the stores, given that public transportation would require well over 90 minutes from less than 25km away.)

Instead, I'll be using the real alternative to industrially-cloned chain bookstores: The library. It's a bad sign for a mid-sized local community's bookstores when one is more likely to find new-release specialty fiction or nonfiction at the library than at the purportedly-award-winning "independent bookstore" in town…

27 April 2017

Evolutionary Adaptation?

I'm sad to conclude that yet another H'wood figure of some notoriety has demonstrated that he is unfit for purpose. The chief "TV advertising affiliatecritic" at one of the two main trade rags has weighed in on the forthcoming American Gods TV adaptation and demonstrated his tunnel vision yet again:

However, after four of the eight episodes that will make up the first season, American Gods is still floundering. In the early going, the most pressing distraction — more so that [sic] the buckets of blood and intense sexuality — is trying to understand what's going on and what the series is all about, beyond the fact that old gods and new gods are about to go to war. The series is both rooted in realism and rife with otherworldly activity. It's as visually appealing as it is mystifying, like a comic book come to stoned life.

(Go ahead, read the rest of the review. It really wasn't unfair to take that paragraph away from what passes for the context of the rest of the review.)

If that is indeed what one is left with after the first four of a projected twenty-four episodes to cover a novel that even at first glance on the page operates by the kind of inference and allusion that turns two pages of book into twelve minutes of screen time, then it's a faithful adaptation and not a "problem." This particular critic's longstanding hostility to literary structures and techniques more sophisticated than found in a sixth-grade book report delivered orally to the class may serve him well in dealing with material no more sophisticated than that, such as the typical sitcom or dramedy or police procedural (which, despite any "adult themes," are not structurally or technically complex). Yes, there are certain precepts to adapting written material to audiovisual media, and yes, it takes both better source material and better adaptation/adapters (especially at the screenwriting stage) to violate those precepts. Examples include The Stunt Man, Apocalypse Now (original release only; the later "Director's Cut" demonstrates the undervaluing of editors!), and All That Jazz — from one twelve-month period. This critic's other snide remarks complaining that this is a slow-building show that does not comport with his preconceived notions of appropriate-for-TV-series pacing ("the fact that series on subscription channels tend to have viewers who, having already paid for the content, are more forgiving of slower starts") just reinforce the underlying problem.

And that underlying problem is that the "chief critic" (even within a department) is not always going to be the most appropriate reviewer, even for a headline/big budget work that "deserves" the "notoriety" thereby achieved. Or, more likely, that various ego-stroking is satisfied by that assignment — of the critic(s) involved, of the producers/production company, of the venue's management that has bought into the myth that "notoriety" is always congruent with "skill at execution," of the various publicists afraid to allow any work to stand or fall on its merits (in a semicomedic take on mutually assured destruction that is disturbingly parallel to Dr. Strangelove). In this particular instance, there isn't much indication that the reviewer had read the novel first (perhaps he did, but the review doesn't show that he read more than a synopsis). There were longstanding indications that only certain kinds of ambiguity are ever considered appropriate by this critic… and since the ambiguities at the core of American Gods (and, more generally, 1980s Latin American-tinged magical realism, one of the overt source systems of American Gods) are not to this reviewer's taste, putting the review in his hands was a mistake. It just enabled yet another instance of "not to my taste" being misstated as "inept" by someone without the theoretical and critical distance to acknowledge that "taste" is not congruent with "merit."

16 April 2017


On a day purportedly devoted in this allegedly "christian nation" to celebrating redemption — although if two days prior, on which the murder of a reputed semideity incited by mob action on grounds of religious convenience and not criminal activity is designated "Good Friday," one must wonder what "Mediocre Friday" or "Bad Friday" would look like, and whether it has anything to do with whether the wine being served is kashrut — I offer the following quotation, particularly but not only to the executive branch of the Arkansas government.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Callins v. Collins, 510 U.S. 1141, 1144–46 (1994) (Blackmun, J., dissenting) (citations and footnote omitted).

Yes, there are some bad dudes out there. How certain can we be that we have singled out not just only bad dudes, but all of the bad dudes, so that we are imposing "fair, consistent, and reliable sentences of death"? And what, pray tell, is the basis for that certitude… given that Justice Blackmun was a helluva lot smarter than the subject-to-partisan-and-popular-pressure elected officials in the actual discretionary roles (executive, prosecutorial, and — too often and to my mind unconstitutionally per se — judicial)? I would never shy from jury duty; however, despite having been a line commissioned officer, I am not death-penalty qualified… precisely because I know what that machinery looks like, how it is designed, and — more to the point — how much chewing gum, baling wire, and duct tape is holding it together. And if I cannot trust myself with this Rube Goldbergian device, I sure as hell cannot trust bloody politicians motivated inconsistently by willful ignorance, earthly vengeance, residual bigotry, and the next election.

None of this is to say that the State can never use lethal force. It is to say that those doing so must take personal responsibility for doing so, and pay the appropriate price — not hide behind machinery.

12 April 2017

Link Sausages Old Enough to Vote

Sometimes Life forces one to age the link sausages a bit more than optimally. This is one of those times (but I've already put the spoiled ones on the compost heap… which is, admittedly, bad composting practice, but what the hell…). Of course, you may think that some of these are spoiled nonetheless.

  • PW yet again displays its own ignorance (and center-right biases, thanks to its various owners over the past couple of decades) by questioning whether book publishing is too "liberal" for today's 'Murika. The only way one can even reach this inquiry, though is by defining "liberal" to mean "everything that is inconsistent with the precepts of the John Birch Society:" Not just left/liberal/progressive, but even "centrist" on whatever axis one wants. Indeed, there's an excellent argument if one considers a truly broad-spectrum set of sales data (that is, more than the self-serving, self-selecting BookScan, which now accounts for somewhat less than 60% of all book sales), the social-conservative and economic-conservative segments outsell their true opposites. Too, this inquiry also mistakes the content's "leanings" (whatever they are, and have you looked at military adventure fiction lately?) with the industry's "leanings" in its practices (whatever they are, and have you actually read a boilerplate first-offer publishing contract lately?).

    There's a really obvious reason for this, and it's one that PW explicitly denies: Used book sales are not accounted for by BookScan, even in locations that report new book sales to BookScan. And that's before remembering that college bookstores, CostCo/Mallwort/nonbookstores, airport bookstores other than WH Smith, and that tiny little online segment don't report their new book sales to BookScan (or at least not on the same basis), either.

    And then there's the Manhattan-centric bias. But you're probably bored with hearing that.

  • This sausage is highly abstract. Warning: May Be Inappropriate for the Ideologically Rigid.

    A Norman Rockwell original painting has been recovered and returned. That's all well and good. However, some of the unstated assumptions in the article expose a serious problem with both the world of art and the Visual Artists' Rights Act (17 U.S.C. § 106A). The real problem is that price tag… which doesn't support artists at all. It's there for gallery owners and auction houses and self-aggrandizement of museum staff (and boards of directors) and fleecing getting donations from taste-and-criticism-challenged 1%ers who just want a tax deduction. And even worse for anything "Rockwell," his art is the epitome of reproducible/reproduced art that falls outside of VARA, but is nonetheless used as part of the rationale for both VARA and art pricing.

  • And the preceding sausage didn't even have to go into the unsubtle biases forming the context of Rockwell's art… or the forgery problem and what it implies about the "unique" value of works of visual art (and in this context, works of visual art whose value is based essentially on fame-through-reproduction). Hoaxes and forgeries remain problems for non-visual-art pieces, too, ranging from the Voynich Manuscript to Clifford Irving and Stephen Glass.
  • Yet another instance of a wannahavetheprestigeofscience nonscientist — this time a sociologist — self-justifying himself and his cramped, ignorant worldview manifests in this load of bollocks. It's almost always a marker for ideological arrogance and a bruised academic ego when an academic starts proclaiming things like "People aren't rejecting truth — they're rejecting the values of the elites" (and burying the definition of "elites," which on the basis of that article means "everyone who doesn't agree with me, and especially my foes in academia"). Asserting that struggles over truthfulness in public discourse are nothing more than "a question of who possesses moral and intellectual authority" implies that someone necessarily does and that it is universal (which more than slightly undermines what passes for a thesis of the article). Perhaps the worst error, though, is reflected in the unsupported assertion that "Science can certainly provide facts, but not truths. It is only through the public interpretation of facts that people arrive at truths." reflects such abject ignorance of what both "facts" and "truths" mean — and, for that matter, what science can and cannot do — that it shouldn't surprise one that the author's primary reference on what "science" is appears to be Socrates, jumping over two millenia of changes in reasoning and the ability to distinguish "evidence" from "ideology". Which remains imperfect, but is not nearly so tenuous as the article proclaims.

    Of course, the citation-with-approval of Socrates for the foundations of what constitutes an "elite" is, itself, more than a bit revealing of the elitism inherent in mid-to-late-twentieth-century English universities. But that's for another time, and hopefully another few counterfootnotes.

31 March 2017

An Annoyance in Flyover Country

I'm irritated at a flyover-country publishing issue. Not because I'm in flyover country, but because the publishing-industry segment is… and its attitude has made things difficult.

Two thousand seventeen has been a bad year for my friends and acquaintances: I've been forced to buy too damned many condolences-for-your-loss cards. Thereby begins our tale of cultural imperialism in the greeting-card industry — which is essentially headquartered in Kansas City just as strongly as trade book publishing is headquartered in New York City. (That there are non-KC alternatives makes just as much difference to the industry and retailer weltanschauung as the fact that there are non-NYC alternatives in trade book publishing.) Unfortunately, I have now exhausted the supply of non-sappy, non-religious condolence cards at five local retailers (three chains, two truly local), leaving only one more outlet… and some of these people know each other, so a "repeat" isn't appropriate.

This is the attitude that needs adjustment with a 2x4: There's a significant part of the population that doesn't want religious messages on condolence cards, due to sender preference or known recipient preference. There's an even larger part of the population that doesn't want sappy condolence cards for the same reasons. It appears that none of that population lives near Kansas City, or more to the point is employed in product development at any of the big greeting-card firms; and it appears that little of that population has any influence over retail-outlet stocking preferences, either. This should not be surprising, as the more-opulent suburbs of Kansas City tend to be on the Kansas side of the state line, and therefore in Brownback-voter territory.

The local acclaimed "independent" bookstore, whose stock is drawn from a much wider variety of publishers than is, say, a B&N's — and being right down the hill from a "hippy" university might be expected to be more, well, ecumenical — isn't any better (not to mention being more expensive). Even the card selection at the local Whole Paycheck has this problem; it's a small store, with limited stock, but still…

Thank you ever so much, greeting card industry. You're probably going to make me fire up the desktop-publishing software and apply my pathetic artistic and graphic design skills (hey, I can do functional and easy-to-read damned well, but I make no pretense otherwise), then hope I can find appropriate stock and an appropriate freestanding envelope, for the next one. But today, I don't have time, especially since it was an overnight notice of something that happened a couple of weeks ago.

Yeah, that really helps everyone involved.