03 August 2021

Entitlement Program Link Sausages

It's election day around here. So that means it's appropriate — perhaps much too late — to comment on some of the more dubious entitlement programs. But these are entitlement programs that don't make the news very often…

  • This is a fun neighborhood in most respects, but there's one aspect that just about everyone will agree completely sucks: The parking. It's not just that these are old streets, laid out in the days of street cars (and redlining, but that's for another time). The mixed-residential-and-commercial, mixed-density nature makes for some interesting problems of its own — especially with entitled drivers.

    Entitled out of town (as in Oregon plate ___ LHR) drivers.

    Entitled out-of-town drivers in Volvo SUVs with multiple bicycles on a rack hanging off the back, incompetently parked, resulting in taking up about one and a half parking spots on the all-residential side of the street. No doubt while visiting the most-self-righteous-of-the-three vegan restaurants on/across the block for Sunday brunch, all sweaty after a great bicycle ride… and neglecting that that half spot was blocking access to my driveway. I ended up driving up over the curb with my load of groceries and painting supplies to get into my own driveway while these entitled jerks enjoyed their $25 "ham" and "eggs." (And I get to further sully their memories by putting this comment on a "sausage platter"… and I can guarantee you that whatever these sausages are, they aren't vegan.)

  • But at least they weren't complete dickheads — they left after a marginally-reasonable time. I can't say the same about the governor of New York, who is not just oblivious but entitled because he inherited the right to be prominent in politics. Perhaps he should review U.S. Const. Art. I § 9 cl. 8:

    No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

    and ponder the implications for "nepotism as a foundation of American politics." He won't be the first to fail to do so; if you really want to see "entitlement" in action, just be related to someone prominent in Chicago politics… including on the Heffalump side of the aisle (however limited in number that is). Or get a job at the White House during the previous administration without any apparent experience or qualifications not related to… well, not "related" will do.

    Governor Cuomo should have resigned as soon as he got the undoubted-if-repeatedly-denied back-channel message that General James' investigation was going to find significant culpable conduct. That's what "office of public trust" means (my other computer just decided to comment editorially on this betrayal with a "random" selection). It's one thing to make a mistake, own up to it, and ask forgiveness. It's another thing entirely to engage in a years-long pattern of conduct, deny that the pattern has anything wrong with it, and act like a Daley. Or a Pendergast. Or a governor of the state of Illinois (half of them since 1945 are convicted felons, and half of the remainder raise eyebrows).

    Meanwhile, California is doing its best to demonstrate that its political system is optimized for dysfunction and abuse.

  • And policy differences are by no means a determinant of dickheadishness. On the one hand, here in the purportedly "most liberal" city in the country, we've got city and county council members whose stated policy preferences I agree with, but who can't seem to stop being awful people with egos sufficient to support the dictatorship of a banana republic. (I'm choosing that comparison with full awareness of the political and ethnic undertones.) On the other hand, we've got defense contractors (specifically including one that used to be headquartered here, until its headquarters were attracted by local tax breaks elsewhere) who've clearly forgotten part of "profit motive driven by enlightened self-interest". Leaving aside that the aircraft in question was a piece of crap when first acquired, admittedly under prior ownership, and a logistical nightmare complained about by every USN and USMC supply and maintenance officer ever forced to work with it (at least in the O-club bar ashore and at joint-service social occasions)…

    Which gets into a different aspect of entitlement: That having some "correct" opinions, or engaging in some "heroic" actions, entitles one to be oblivious and/or an uncriticizable dickhead on everything else (sort of like the faaaaabulous charitable giving of certain tobacco heirs/families, which in many ways is rather worse than the Sacklers who at least didn't directly profit from slave labor and displacement of native populations). This is disturbingly analogous to ancestor worship of "Confederate heroes" standing up for "states' rights" while suppressing the rights of those of different racial/ethnic/religious backgrounds (not to mention the treason). Elections in a representative democracy are only secondarily about policies; they are primarily about the individuals, because the very nature of electing governing officials is that we're selecting who will lead in a future crisis, expected (global warming) or not (pandemic).

30 July 2021

Tarnished Medal Link Sausage Platter

There's been more than one day of late that I didn't know up from down. But then, I've been following American politics for half a century…

  • Well, in the last few minutes, the US women's football team has proven its mental strength by winning a penalty-kick shootout against the Netherlands to proceed to the semifinals. The Orange One will be disappointed that That Woman whom he suggested needed to "win something" before she spoke out on anything put away the decisive kick… and will entirely miss that Rapinoe's kick was decisive because her teammate Angela Naeher saved three Dutch penalties today.
  • This, a few days after Simone Biles showed her mental strength by not placing herself (and potentially others) in jeopardy for the benefit of the sponsors. <SARCASM> I'd offer her a virtual hug, but the last thing that she needs as a survivor of US Gymnastics' inbred old-white-guy arrogance (and Dr Nasser — and his defenders — in particular) is unsolicited physical, even virtual, contact from an old white guy. </SARCASM>

    The scheduling of damned near everything at the Olympics is for the benefit of the sponsors, and in particular the advertisers (world wide). It's certainly not for the integrity of competition; if it was integrity of competition, the individual events in gymnastics would precede the all-around, and the team competition would always follow the individual events. The team sports — especially those, like football, that require considerable recovery time for repeated elite-level performance — would be more spread out, regardless of the so-called "pageantry." And so on.

    And if the sponsors weren't in control, the Olympic Games would not be occurring in the midst of a pandemic near lockdown of the host nation.

  • If you need proof that the entitled-old-white-guy attitude is tarnishing all competition — not just the Olympics — consider this startlingly counterfactual piece of argument-from-authority on the purportedly flawed case against noncompetes. The fundamental problem is that the piece looks at the data from entirely one perspective, and with entirely one objective: Existing capital accretions own the workers, their ideas, and their skills, and only the existing capital accretions are entitled to benefit from the workers, their ideas, and their skills. It's more than just "labor is subordinate to capital," an underlying meme of post-Expansion America. The law-journal article cited in the "opinion piece" to which I linked here fails most tests of experimental-design validity. For example, the article focuses only on high-team-implementation-IP noncompete agreements as its source; I am left to wonder just how much a franchised sandwich stop really needs to keep its minimum-wage workers from going to work for a competitor, because those minimum-wage workers don't know the recipe for the "secret sauce" in the first place. Then there's the question of applying noncompetes to independent contractors, like authors and screenwriters and so on (seen a default publishing contract lately? in particular, a publishing contract from a certain NYC-based conglomerate controlled in Germany… or its competitor controlled by a Franco-Swiss arms dealer?). Then there's the never-stated definition of "innovation" at the core of the article. And all of that is before getting into the dubious, cherry-picked data and "statistical" methods.

    If anyone needs a further reason to distrust the law-and-economics movement and its misapplication of laboratory-based-and-confined numerical methods to the "real world," this opinion piece (and the law-journal article) provide that reason. At most (and even that depends upon measures of data integrity that I'm not in a position to evaluate either way) the criticisms raised in the article suggest that "perhaps, for some narrow and highly specialized circumstances, noncompetes of broad scope and extremely limited duration might be an appropriate bargained-for consideration." But that also presumes that noncompetes are subject to bargaining in the first place, doesn't it? Instead, though, through the magic wand of "we're economically sophisticated tools of capital accretion and we know both what we're talking about and what's good for General Motors'murika," the authors of the articles cheapen their analysis by Olympic-caliber conclusion jumping.

    Both pieces implicate — don't quite cross whatever line there is — academic integrity matters. The editors who accepted the underlying law-journal piece should be hauled off to a graduate-level, team-taught course with a title like Statistical Methods and Designs for Epidemiological Inquiry and Analysis in the Social Sciences before ever being allowed to evaluate pieces of this nature again. Whether for overall acceptability or during the editorial process. The editors who accepted the opinion piece need at least a basic course in statistical reasoning (taught with calculus, not The Students'-T Test for Dummies). The authors… that's for another time, because it's a complex situation touching on academic integrity, academic freedom, conflicts of interest (recognized and otherwise), and the necessity of the "sniping process" in academia. That said, their decision to "go general public" was certainly ill-considered.

23 July 2021


This isn't precisely a politics-free platter; it's certainly politics-adjacent. But only adjacent, sort of side-eyeing more overtly political things…

  • Lab leaks aren't just for Wuhan any more, if they ever were. Dangerous, even viral, contaminations can escape from (what passes for) political science laboratories. This has been a problem since, oh, not later than nine centuries ago or so; probably as far back as Roman slave revolts that had no clue what to do next. And that's for simple ideas like getting a new boss; complex ideas don't need "think tank" escapes to fail.
  • In a piece that is simultaneously insightful and profoundly ignorant, Jordan Weissmann asserts that master's degrees are a scam. Examining the kinds of master's degrees he cites, though, reveals that his horizons are just a bit limited. Leaving aside fields in which a master's degree is a fundamental qualification to proceed above the entry level (education, social work, public health, and so on), and the truly mixed history of the MBA, Weissmann's attack is on terminal master's degrees in the humanities. Not the MSc in ChemE used to focus on a specialty area, but the MFA; not the stepping-stone to a PhD awarded for those who must interrupt that journey for Reasons, but the online, "low-residency" degree usually focused on extraordinarily narrow areas with lots of "experiential learning" and very little core curriculum; not coordinate study to enrich another field (an MA in history to enrich a PhD in comparative literature, an MA in economics to enrich a JD for teaching purposes), but a "pure credential" to get one's foot in the door in a field that has, umm, indistinct entry criteria.
  • I'm a crotchety old grouch. I don't rely upon streaming services (in fact, I actively avoid them because they don't pay the artists or composers outside the top five or ten in each category, and as you've no doubt figured out by now that's seldom an accurate description of what I like in the first place). My collection isn't always on physical media, but it is all offline… so I'm not dependent upon a high-bandwidth internet connection (and device power-drain), either. I thus sneered a bit at Joe Pinsker's very-late-to-the-party sudden awareness that future access to streaming "collections" is far from guaranteed. And we don't even need the specter of "what if the business goes under?" — although that's a far from trivial possibility (three letters: MCA) — but a change in copyright law that requires fair payment to musicians and composers would probably turn the streaming system into a much more expensive one… which will work really, really well as Generation X and later approaches retirement on fixed incomes.
  • Which is sort of the precise opposite of the problem cinemas have with Black Widow's release strategy. Looking at the difference in "experience," though, helps distinguish this link sausage from the preceding one. The compressed files on streaming services are discernably inferior to even mass-market CDs, let alone audiophile-quality CDs. Conversely, the complete range of experiences in cinemas is not necessarily superior to even a lower-end home-theater viewing… especially without the crappy seating, badly-tuned audio, and kids running up and down the aisles. The financial issues are a smokescreen.
  • Those financial issues for cinemas distract from other problems. Let's leave aside for a moment the demographics of cinema ownership, shall we? Let's look instead at the demographics of those who make films, which is a serious problem. When even the Governor of the Bank of England (the equivalent of the Chair of the Federal Reserve) recognizes that diversity all the way up and down the "ranks" makes for a better organization, it exposes the failure of imagination in H'wood.

    The less said about publishing (and book distribution), the less reason you'll have to replace your screen after the acid eats through it from the inside.

  • Which, I suppose, beats "required preclearance". This is especially problematic when the potential clearance issues arise as much to prevent embarassment to the high and mighty as to protect dangerous information (and avoid those idea-escapes from the first sausage on the platter).

18 July 2021

Drought-Ridden Link Sausages

No, there's no climate change when Seattle's last recorded rainfall was over three weeks ago — even in July.

12 July 2021

A Failure of Imagination

A little over fifty years ago, an astronaut explained the underlying flaw of originalism. (I apologize for using a "dramatization"; available footage is both almost impossible to hear and almost impossible to find in a way that can display on the 'net, and this dramatization is consistent with the transcript of Col Borman's testimony.) Although he was no legal scholar, Borman's speech demonstrates rather well that the overarching problem with originalism is that it fails of imagination by rejecting the importance of context.

Consider, for a moment, the relationship between "Establishment of Religion" and "Free Exercise of Religion." The Founders' imagination failed. Nowhere in the context of their writings, both in the Constitution itself (more properly, within the third-amendment-that-became-the-First-Amendment) and elsewhere, can one find intelligible consideration of:

  • Non-Abrahamic religion in general, and non-mainline-Christian religion in particular (consider how the Founders of 1785–92 might have understood Joseph Smith… or charismatic Catholicism… or Black Muslims)
  • Religious boycotts, which were almost entirely unlawful in their own experience as colonials… because other religions were almost entirely unlawful in the first place
  • Rejection of religion and faith as anything other than the pecadillos of the socially rejected
  • Women with a central role in religion
  • Pacificism that is not confined to, or by, religion (do not get me started on jus bellum justus, we'll be here for weeks — and that's just as of eighteenth-century European-educated understanding!)
  • Corporal punishment as seemingly required by the Old Testament ("spare the rod")

I don't think most of the Founders were so arrogant that they believed they had thought of every possibility. Ben Franklin certainly wasn't; Alexander Hamilton and James Madison, for all their intellectual certainty, demonstrated the ability to change their minds to the end. (OK, Jefferson probably was that arrogant… but was nonetheless an active inventor himself, so progress in the useful arts and sciences at least seemed possible.) Marshall wisely proclaimed that we always, always, always needed to remember that it was a Constitution we are explaining, which necessarily means that it lacks detail.

And then, if we needed any proof of the Founders' fallibility, we then had a civil war driven by conflicts among different sources of inherited wealth, epitomized by (but not solely restricted to) the three-fifths-of-all-other-persons "problem" — an instance of inherited impoverishment.

The text of a constitution, or a statute, remains important. It is no less than the starting point for our imaginations. But it is no more than that, either, however much the reach of that imagination is restricted by the nature of the text. When the context changes, so does the meaning of the text (consider the "absurd result" canon of interpretation… or the unintended consequences and lacunae of hasty drafting by law professors who are supposed to know better, and thought they did, and screwed up anyway).

05 July 2021

Leftover BBQ Platter

It may not have been an appropriate day to celebrate the founding of this nation, but it was an appropriate day for barbecue. And, therefore, leftovers.

01 July 2021

Condensing Thousands and Thousands of Words

So today is the last day of October Term 2020 for the US Supreme Court. There were thousands of words issued today. On the twin principles that (a) "a picture is worth a thousand words" and (b) "a fast photo-editing job is easy," I offer the following summary of Americans for Prosperity Fdn. v. Bonta, No. [20]19–251 (01 Jul 2021):

So the top guy on the stack isn't a dead president. So sue me.

Thanks, guys. Now I can exercise my free speech rights as guaranteed by Buckley anonymously; maybe even QAnonymously. Nobody will be able to accuse me of a conflict of interest, since without knowing who I am they can't identify my interests.

This is a doctrinal, controversy-avoidance response to a difficult problem: Speech in other than words. Buckley held that the act of expenditure in support of a political campaign — whether for office or directly concerning legislation — is a speech act protected under the First Amendment. In one sense, this is a necessary protection against unpopular opinion; flag burning is an obvious example. In another sense, though, it denies judicial competence to distinguish between "speech," which is a First Amendment right, and "corruption," which… is not. Or, worse yet, to untangle matters for conduct/speech that is both.

I would remind the judiciary of two basic principles of leadership and governance that it all too often forgets.

  1. The decision not to decide an issue is itself a decision that must be justified both in principle and on the facts presented — even when extremely difficult, even when those facts are incomplete or contested.
  2. The ultimate duty of any government official, at any level, is to make decisions. Anything less than that is dereliction of duty and unfaithful to the oath of office. The obvious corollary is that if one does not feel competent to make a decision that one must make, obtain (or at least refer to) that competence.

The fundamental blind spot of the various campaign-finance cases is that they uniformly pretend that only overt bribery is defined as "corruption." And to that assertion, I can respond only as did Justice Stewart:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). I would argue that political corruption is no less obscene… presuming, as the Court and general run of American jurisprudence do, that "obscenity" is outside the scope of the First Amendment. But that "further define[s]" matters indeed.

The irony that what is at issue in Bonta is not truly "anonymity" at all, but "administratively convenient access to information already required to be reported elsewhere," has some disturbing implications related to the tradition of (live) Presidents providing their tax returns for public examination (until the Orange One, anyway). Traversing that swamp is for another time.

26 June 2021

Ill-Defined Functions

A Supreme Court opinion yesterday exposed the dirty little secret of textualist interpretation: That it is at most a means to throw out the least-plausible meanings. It does not, and cannot, lead to indisputably-correct interpretation. Especially when there's money or "policy" involved.

First, a methodological — mathematical — premise. How might one solve this equation:

x = cos(a+b) / sin(a-2b)

for arbitrary values of a and b? Speed-demons who rush to do simple algebra as fast as they can (that is, lawyers) will either defer a boundary-check to later or not do it at all, because there are multiple conditions under which the equation has either an undefined result or no meaningful result. The most obvious one is easy to show:

if a = 2b then
x = cos(a + a/2) / sin(a-a)
x = cos(1.5a) / sin(0)
x = cos(1.5a) / 0
oops, undefined (divide-by-zero error)

And now the fun with words begins.

Yesterday's decision in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass'n, No. [20]20–472 (PDF) depends upon a different kind of exception that leads to an undefined result. The simplest, and easiest, way to put the question in context is this: When an exemption has lapsed through passage of time, and a statute passed in 2005 (amended in 2007) allows an otherwise-eligible beneficiary of that exemption to apply for an "extension", does that lapse cut off the right to an extension? That is, does the lapse mean that it's no longer an "extension" that is being applied for, but something else? Thus followed the battle of the dictionaries and other direct evidence of the meaning of "extension" Friday morning in St. James's Library1 Omitting repetitions and cross-references between the opinions:

Justice Gorsuch
Justice Barrett

"extension" not defined in statute (slip op. at 4)

  • 5 OED 597 (4–5)2
  • 7 U.S.C. § 940f(a) (5)
  • 5 OED 595 (5)
  • 15 U.S.C. § 1141e(a)
  • Black's Law Dict. 703 (6)
  • 3 OED 828 (6)
  • Webster's New Collegiate Dict. 180 (6)
  • B[rian] Garner, Mod. Eng. Usage 214 (6)
  • 28 U.S.C. § 2107(c) (7)
  • Fed. R. Civ. Proc. 6(b) (7)
  • Pub. L. No. 116–260 § 203 (7)
  • Pub. L. No. 116–136 § 2114 (7)

not imposing uniformity across all law (8)

  • 8 U.S.C. § 1184(g)(8)(D) (8)
  • 10 U.S.C. § 2304(f) (8)
  • 19 U.S.C. § 2432(d)(1) (8)
  • 28 U.S.C. § 594(b)(3)(A) (8)
  • Webster's New Collegiate Dict. 846 (8)

Most natural reading, not just any possible reading, is best baseline

  • FCC v. AT&T, 562 U.S. 397 (slip dis. at 3)
  • Florida Dept. Rev. v. Piccadilly Cafeterias, 554 U.S. 33 (3)
  • Romag Fasteners v. Fossil Group, 590 U.S. ____ (3)
  • Am. Heritage Dict. 628 (4 nn.2, 3)
  • Webster's 3d Int'l Dict. 804 (4 nn.2, 3)
  • New Oxford Am. Dict. 596 (4 n.2)3
  • 5 OED 594 (4 n.3)
  • Black's Law Dict. 622, 1322 (4)
  • W[illiam] Anderson, A Dict. of L. 437 (4)4
  • Random House Webster's Unabridged Dict. 684 (4)

My focus is on the evidence offered, not interpretive methods based on that evidence (see, e.g., Justice Barrett's dissent at 7–8 citing the… umm… neither-precisely-objective-and-disinterested-nor-semantically/semiotically/culturally-inclusive A[ntonin] Scalia & B[rian] Garner, Reading Law: The Interpretation of Legal Texts). And in this sense, we're back in St. James's Library with a potential divide-by-zero error at issue in both opinions.

But nobody did any boundary checking. The real question here is not what "extension" means to a government official or lawyer, because this statute isn't for government officials or lawyers. It is for, and directed to the conduct of, "small" operations in the oil industry. The probability that most of them even know about the Oxford English Dictionary, or the New Oxford American Dictionary, is fairly limited. (Hell, the probability that the Congresscritters and their staffs knew about them — let alone referred to them — when writing this legislation is also fairly limited.)

Most of all, HollyFrontier is about bad writing arising from failure to boundary check. Let's jump back up to that initial equation at the top and consider this: Is x a meaningful result for our purposes if it's a negative number (slightly less than half of the circle, and we are just not going to get into non-Euclidean geometry here)? If the Congresscritters, their staffs, and the industry lobbyists had had enough brains to flip a light switch, the specific circumstances would have been foreseeable, and nobody would have allowed a statute that required this level of gyration regarding a nontechnical term. It could have been solved by defining "extension" to require continuity (or not); or by requiring that the application be submitted while an exemption was in force (or not); or by adding the word "continued" in front of "extension" (or "not-necessarily continuous"). This dispute is a consequence of bad writing. And it resulted in more — reams more (since these briefs, etc. were submitted on paper) — bad writing.

This dispute was also resolved improperly, by treating "data" and "reasoning" as of equivalent weight and priority. But that's for another time, and falls definitely — oh, so definitely — on the side of the Moderns.

  1. Fortunately, because this is a relatively recent statute, we need not delve into corpus linguistics analysis and confront the racial, gender, religious, and class biases inherent in those sources, nor the preservation problems, nor the applicability of the kind of discourse in written sources to "ordinary meaning" in a largely nonliterate population. Neither the Ancients nor the Moderns are at issue; they're all Moderns. (Obviously not Postmoderns; we are talking about Congresscritters and judges and oil barons here.)
  2. Editions omitted for brevity; they are all recent enough that linguistic and colloquial drift are probably minimal. On this point, at least, Justice Gorsuch has by far the better of the argument (slip op. at 7) — at least for nontechnical terms. Were we arguing about the meaning of the term "influencer," however, even five years might prove too great a gap.
  3. disclosure The Oxford American Dictionary has long been my preferred source to ferret out both the edges of the ordinary meanings of words, in ordinary American English as used by native speakers of American English, and the scope and sources of exceptions. I ensured that more than one performance report (with preprinted blocks on the forms) and more than one set of other paperwork has "benefitted" from it over the years…
  4. Here, however, there is a problem. Anderson's Dictionary was published in 1889, and reprinted in 1996 (thus the "1996" quotation). It is impossible to determine whether the particular reference was updated (whether in the reprinted edition or during the course of legal research, because this particular citation by Justice Barrett is through/to a brief) without going back to the 1889 edition… and the Bluebook discourages that level of inquiry. Which says volumes, in and of itself, about battles among legal books… and the ethics lying deep behind legal research.

19 June 2021

Unconsidered Cases

Because they deserve consideration.

  • History is not always written by the winners; sometimes it's written by the entrenched and entitled, regardless of whether they "won" or "lost." The recent recognition of problematic Confederate monuments and other memorials is just one example, one that points to a more disturbing issue: History isn't always what we think it is, whether from a "just the facts" to a "valid interpretive paradigms" perspective and an infinity of variants and shades and combinations. For example, one explanation for the backlash against the 1619 project (which, for whatever its faults, does not claim to be definitive or complete) is that its greatest sin is that it implicitly questions whether meritocrats descended from slaveowners just might be less worthy than they think they are, thanks to unequal original positions — and that even many of the institutions providing credentials to the meritocrats have the same (and often worse) problems.
  • Poor Tom's a-warmin', my lord, while dining on steak and lobster. Remember, though, that the Fool was by far the "smartest" and "wisest" character in that play (pretty low bar, though; on the other hand, "has a better sense of priorities and/or internal consistency than current world leaders" is a pretty low bar, too).
  • I'm always appalled at the nonsense of arguing over English-language gender-neutral pronouns. The argument betrays immense ignorance of other languages; consider not just obvious linguistic drift, but the ordinarily reduced (or eliminated) gender specifity of formal address, and homonymic variants like the German "sie" (which becomes "Sie" and draws in the formal address… when written, anyway).
  • Connoisseurs of classical music have been bemoaning audience size (both at performances and otherwise) for a couple of centuries. It has only become worse of late. What this frequently neglects, though, is the differences between merits as a performer and as a musician. (It also glosses over the mercantilism-versus-comparative-advantage problem, but that's much too subtle when focusing just on the concert hall.)
  • Speaking of neglect of critical distinctions and glossing over differences in paradigms, consider Thursday's decision in Fulton (PDF) , in which all nine justices make an egregious definitional error that is unfortunately embedded in both jurisprudence and the entire conversation. There's a fundamental question in Fulton that was assumed away (and that I do not think Justice Ginsburg would have allowed to be assumed away): Is nonindividualized refusal to consider the overall fitness as parents of a group of individuals whose commonality resides in doctrinal disdain for one aspect of their lives "free exercise of religion"… or naked tribalism? If an ardently Catholic gay/lesbian partnership that complied exquisitely with every other doctrinal aspect, but fails this one, does that entitle CSS to treat that partnership as Other and reject their candidacy as foster or adoptive parents?

    About four centuries ago, Europe was busy demonstrating that it's much closer to tribalism than actual religious exercise, however clothed in or rationalized via purportedly religious doctrine. And that's before disentangling matters from "establishment of religion," which also got short shrift. In short, even a 70-odd-page concurring decision didn't engage with the limits of "exercise" — any more than did the real issue in Smith, which was a predicate to reaching the "neutral law of general applicability question." There was a failure to inquire into a factual predicate — not just that peyote appeared on a schedule, but that it properly did so without itself reflecting religious bias in the scheduling process (the distinctly disparate treatment of tobacco comes to mind…).

    As to Fulton itself: I deny that treatment of a discrete group of individuals as Other to be shunned on the basis of religious doctrine constitutes exercise of religion in the first place. The bitter contrast that this relates to providing parents for parentless children in a world in which there is no other qualification to be a parent has also remained unconsidered.

13 June 2021

Perhaps Necessary, But Not Sufficient

Fifty years ago today, The New York Times did what it was supposed to do: It published material that the high and mighty wished kept out of the public's view. But I had to link to an article not at the NYT, because its business model of today invades the privacy not of the high and mighty, but of the general public. It's the real cause of the decrepitude of "local news": Magical redefinition.

Bluntly, if you can't do it with the ads in your print edition, you don't get to do it while I'm ensconced in my living room (or bedroom) on Sunday morning, either — especially not by calling it "ads." "Advertising" does not include "targeted determination of individual reader behavior to facilitate future economic exploitation." It does not include determining my location to within ten meters while I'm imbibing my coffee (or anything else). It does not include determining that I've got sixteen other open tabs in my browser, several of which point to both domestic and foreign (and foreign-language!) competitors of yours. It absolutely, positively, does not include learning what I'm going to look at next. <SARCASM> Even — and perhaps especially — if it's easily misinterpretable as porn. Because that will just increase the ads for "male enhancement substances" that end up in my spam folder. On the server that I'm paying for, using bandwidth and connections that I'm paying for.</SARCASM>

The irony that publication of the Pentagon Papers was the first step toward the NYT's loss of status compared to the WaPo seems to have escaped everyone. NYT management, bluntly, became a little bit gunshy in the aftermath, wanting to avoid more controversy over its "methods"… and left a minor break-in at the headquarters of the Democratic National Committee to the "local" paper. You know, that one. ("Follow the money" indeed!)

And, sadly, the Pentagon Papers themselves point to a further problem: They presume that slapping a label on something will suffice to hide its inimical, indeed self-destructive, purpose. The vast majority of the Pentagon Papers were improperly classified at any level, let alone Top Secret. Conceptually, one wonders how a 47-volume document that was not devoted to either the nuclear battle plan or current intelligence activities could justify treating the entire monstrosity as "classified." Perhaps slightly more embarassing than that painting linked above, but not damaging to national security unless one defines either "damage" or "national security" to mean something related to the personal interests of those presently in power. And specifically, the vast majority of the information and analysis (where there was actual analysis; one aspect of the Pentagon Papers that has gotten little attention over the years is their overwhelming "dump the file drawer without comment" nature… and what that says about the use and practice of history in government) was either already in the public domain or mere confirmation-in-a-single-soundbitish-place documentation that the government knew what everyone else already did. Slapping a label that means "potentially injurious to national security if disclosed" on them didn't make them so; neither does slapping a label that means "fishmonger hawking today's catch to passersby" on "invasion of privacy for the invader's financial advantage through identifying the passersby to anyone who will pay for that information" justify the latter. That "grey lady" across the way (viewed through the tasteful curtains on the parlor window) might beg to differ (especially since the main translation of that play into English remains under copyright Over Here until just in time to lament over the midterms, and is thus only available in paid form).

In the end, this is part of the price of the ideology of the purported "free market" and the purported "rational economic actor." That "rational economic actors" are not always the most capable, responsible, and worthy in our system can be inferred by comparing the compensation of Supreme Court Justices with fresh-out-of-law-school drones not expected to display independent judgment, even after rubbing elbows with those Justices for a year. In journalism, at least as much as in law; the entire point of the "Third Estate" is to act as a check on the economically and socially powerful… not to be them. Because one guarantee that I can make is that the revenue being accreted by major ownership groups in what currently passes for journalism is not trickling down to the salaries of enthusiastic reporters on the trail of corruption in local government.

Sometimes what one does matters as much as, or more than, one's speech. Context always matters.

05 June 2021

A Politics-Free Platter

…that is entirely about the arts and computers. OK, I lied — one cannot avoid "politics" in those areas; as Orwell noted, the decision to "remove" politics from the arts is itself a political decision.

  • Cities aren't politically neutral — not even, and perhaps especially in, their very architectural forms. They're built for 6-foot-tall white men who are native speakers of the dominant/official local language and have no mobility, visual, or auditory impairments… or children. Even "accommodations" tend to be relentlessly imperialistic; for example, many local crosswalks have an auditory "Wait" message while inactive, and then might say "Crossing University Avenue" when active. In English only. Not cool.
  • A former athlete (who actually earned his degree in anthropology) justifiably trashed awards shows as corrupt:

    Awards shows will always be controversial because good artists will lose to other good artists. Put a Picasso next to a Dali next to a J.M.W. Turner, and who gets best artist award? That’s fun controversy when we can argue about worthy opponents, championing our favorites but also not being mad at who won. Unless you fail to even include Black artists like Jean-Michel Basquiat or Jacob Lawrence or Lina Iris Viktor. It goes from fun controversy to furiously frustrating when the awards deliberately exclude worthy people based on lack of familiarity or because they exist outside the judges’ comfort zone.

    Art enhances society by bringing us closer, by articulating our hopes and despairs, by making us see who we really are and who we could be. Awards have the power to publicize great artists, both popular and obscure, to expand the boundaries of what art is, how it is expressed, and who expresses it. Salvador DalĂ­ said, “A true artist is not one who is inspired, but one who inspires others.” If the Golden Globes, Grammys and Oscars want to remain relevant, they need to recognize that those who inspire — and need inspiring — may not look, speak or create like them.

    Kareem Abdul-Jabbar, Just What Are Awards Shows Awarding?, The Hollywood Reporter (04 Jun 2021). The biggest hint that the award shows (and, for that matter, awards for other aspects of the distributed arts) have been thoroughly corrupted by purely commercial considerations is their timing. In film and television, for example, nominations open before the entire eligibility period has ended… and close before there's a realistic possibility of public reaction. Combine this with the goofiness of eligibility being tied to the exact dates on which a film is exhibited in Los Angeles County and things begin to get really subject to manipulation (right, Harvey? oh, you've already used up your prison phone allowance this week? sorry to disturb you).

    It's at least as bad for books. The National Book Award, the National Book Critics' Circle Award, and the Pulitzers are all awarded before eligibility period end (based on publishers' schedules). At least so-called "genre fiction" waits to open nominations — let alone final awards — until the books are actually all in bookstores/available online!

    I suppose it could be worse. Much worse, rising to publishing and marketing malpractice. One wonders if that publisher has any replicable, double-blind studies demonstrating a positive, predictable correlation between blurbs and increased sales. Hint: Not even close, bud; that would represent questioning received heritage and wisdom in publishing, and we can't have that.

  • Those of us who care about books are immensely worried about publishers. They're fairly good at invoking the magician's assistant to distract from their own perfidy (pardon me, Ms Pallante, can we talk about "improper and unlawful demands to treat manuscripts as works made for hire" and its effect on copyright for a moment? how about "improper refusal to honor notices under §§ 203 and 304(c)"? how about "failure to register when contractually obligated to do so, resulting in later loss of the right to statutory damages, attorney's fees, and effective injunctions, and possibly even loss of the copyright itself"?). Even beyond hypocrisy concerning copyright, publishers aren't so good at recognizing what they're doing in the first place; one wonders just how much "cancel culture" goes into publisher-demanded pseudonyms to hide "unfavorable" past sales histories… or worse.

    Until publishers (and other transferees and distributors) acknowledge the First Amendment rent and its place in determining "appropriate" or "acceptable" returns, we're just going to end up with more Bowie bonds that don't acknowledge Bowie.

  • But it could be worse. It could be much worse. It could be COBOL for the twenty-first century. Which begs the question of the reading comprehension of the typical manager who will insert himself into the process (it's almost always "himself," both demographically and because women who become senior enough to do so are usually perceptive enough not to — if only because their own careers have taught them so).

22 May 2021

Personal Boundaries

Right now, it's redistricting season (and that's just one of many examples). This leads to some thoughts on its propriety, futility, and (lack of) basis in fact. (Cue the Monty Python summary.) This is just a gedankenexperiment to hopefully inspire some actual research agendas, whether in law or political science. That's one of the frustrations I have with discourse about elections: It's so strongly based in simplistic ideological presumptions that reality is just a side effect. I still resent being presumed to have been and treated as a jackbooted fascist thug in the 1980s because my primary voting demographic was white male commissioned military officer. My decades of silence — not to mention public disdain — haven't discouraged the Republican National Committee from its presumption that I'm a prime fundraising target…

But consider the "representation" of long-distance commuters. Where they lay their heads at night — or, at least, where they "establish residence" — determines which district(s) they are in for voting purposes. However, those with long commutes (not uncommon in the Bay Area and in LA) may well be in not just adjacent, but entirely separated, districts from their "business interests" and where they spend most of their time. So, it would be interesting to study voting patterns in the districts that host these businesses with clusters of commuters. Consider, for example, the "Google" and "Facebook" bus-and-residence clusters in San Mateo County (where I used to live, so I saw this). The dynamics of heavily-Asian-American immigrant and second-generation populations "preexisting" the tech kids were interesting enough — seeing who was at which grocery store and/or public park, for example! — but the comparison to "nightlife south of Market" a few kilometers away (but, by my count, via six to eleven intervening legislative boundaries) would be even more so. So would looking the other direction, down into Palo Alto and Santa Clara County.

And. more to the point, so would the comparative party registrations. Let's just say that the probability that family patriarchs and matriarchs (who, if they've been successful and started ownership early enough, may well have a string of houses that they're renting out either directly or through a broker of dubious commitment to the Fair Housing Act) register differently from the "tech kids" who have no connection at all to the local schools, the local parks, the local businesses except that there are no residences available closer to work, is nontrivial. Which leads to the further question of whether drawing those boundaries purely based upon "residence" — and eighteenth-century presumptions that one lives where one works and where one has interests amenable to resolution through representative government — doesn't just undermine, but actively subverts, voting rights and equal representation. But it's only a question (with a lot of obvious follow-ups, like "is there a relationship between voter turnout and proportion of out-of-district commuters?") because the data just hasn't been analyzed. Or at least not so far as my COVID-restricted research skills, which are still pretty damned good, have been able to discern.