09 April 2021

Easy Riding Ain't Free Riding

Motoring right in:

  • There already is a lot of commentary about Monday's decision in Google v. Oracle, 593 U.S. ____ No. [20]18–956 (05 Apr 2021) (PDF). There will be more. However, there's an implicit circuit split that was resolved almost without comment in the majority opinion — and it matters.

    At the outset, Google argues that “fair use” is a question for a jury to decide; here the jury decided the question in Google’s favor; and we should limit our review to determining whether “substantial evidence” justified the jury’s decision. The Federal Circuit disagreed. It thought that the “fair use” question was a mixed question of fact and law; that reviewing courts should appropriately defer to the jury’s findings of underlying facts; but that the ultimate question whether those facts showed a “fair use” is a legal question for judges to decide de novo.

    We agree with the Federal Circuit’s answer to this question. We have said, “[f]air use is a mixed question of law and fact.” We have explained that a reviewing court should try to break such a question into its separate factual and legal parts, reviewing each according to the appropriate legal standard. But when a question can be reduced no further, we have added that “the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.”

    Id., slip op. at 18–19 (citations omitted).

    This is critical for two reasons. First, because there must be significant deference to findings of fact, those findings of fact must be either accepted or challenged only on the same ground as the findings of fact on any other issue. (On summary judgment, "no reasonable juror" could believe otherwise; after trial, whether to the bench or a jury, "substantial evidence" in the context of the correct legal theory.) More critically, though, the actual weighing of those facts is a matter of law purely for the judge. And that's… dangerous.

    It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt.

    Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). That is exponentially more difficult in considering whether the artistic process involved justifies a fair use defense of the resulting product. Frankly, in most instances there will be at least one jury member with a closer appreciation of artistic/creative process than a federal judge, particularly since being "trained only to the law" encourages the exact opposite of "creativity": The ultimate in persuasive legal writing, under ordinary circumstances, demonstrates that there is and can be no controversy because precedent requires it — someone else already said it before.

  • Which doesn't prevent journalists from entirely missing the point of legal decisions on fair use. Consider — or, if you have any taste, don't — the late Andy Warhol's screen prints based upon a photograph of the late Prince (Rogers Nelson; the symbol is not HTML friendly). An NYT critic's analysis completely blew it by inverting what was actually at issue. Mr Gopnik just saw "fair use denied" and thought that was the end of the game, and that Warhol was therefore being accused of being an infringer. Not so much; actually reading the Second Circuit opinion in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. [20]19–2420 (2d Cir. 26 Mar 2021) (PDF) demonstrates otherwise. This case was not about Warhol's own use, which was pursuant to a license to create certain silk-screen images in extremely limited quantities. Rather, this case was about whether the Foundation exceeded the scope of the license the artist had for the silk-screen images by making coffee mugs, etc. based on the silk screen images. The Second Circuit rejected the Foundation's claim that all of the images were fair use; it sent consideration of the mass-produced non-silk-screen "originals" back down for further proceedings on breach of the license.

    This reminds me a great deal of the way test companies and some academic publishers mistreat authors over quotations, frequently used for either multiple-choice questions on tests or writing prompts in books. The company typically represents that the extract — almost always an entire poem, or a truly extended segment of text that one cannot reasonably treat as fair use (since good academic purpose is only served by taking the essence, in the same way as Nation Enterprises determined that the passage from former President Ford's memoirs was the essence of the book and therefore not fair use), will have limited use. But those companies, however, commonly understate their "print run" (I've seen three orders of magnitude — a claimed "less than three thousand" tests that was over two million according to the company's later marketing bombast), the scope of use, the number of editions, or some combination thereof. That's what Ms Goldsmith is objecting to here: That the Foundation has no "I had a license!" defense precisely because it knowingly and wilfully exceeded the scope of the license (which appears to have been obtained under dubious circumstances in the first place).

  • So, Senator Turtle, "My advice to the corporate CEOs of America is to stay out of politics." OK, fine. I'll be one of the first to agree that experience in business does not qualify one to proclaim expertise on implementing, or deciding, public policy (and vice versa). But that means that Senator Turtle should also be rejecting "the corporate CEOs of America" as candidates for office. Goodbye, Ms Whitman and Mr Rauner and Mr Thiessen. And Mr Drumpf.

    Oh, that's not what you meant? It's certainly what you said… and I've confirmed by looking at the text of your entire speech that that short quotation is not out of context of what was stated. Which leads to the eternal mythological question of whether Procrustes measured for turtle nests… and whether Senator Turtle's education and experience takes him beyond mere exercise of power, beyond mediocre. Plus, it's pretty sad when your party is criticizing baseball for being too "woke," too aware of the unstated implications of others' actions and policies and intent — which is precisely what Jim Crow laws rely upon.

  • Which leads to the fascinating question of whether it's actually good business practice in the long run to to avoid/evade corporate taxes that are essential for infrastructure and workforce basic training efforts, on which businesses are disproportionately free riders in the first place.

    <soto voce> Pssst. Don't tell Senator Turtle to compare this item to the previous one when considering whether any of America's corporate CEOs have a future in Heffalump party politics, especially as candidates. </soto voce>

04 April 2021

A Query for the Governor of Another State

So, you want safe, secure elections, Governor Kemp. For whom and by whom?

The fundamental problem with letting Them vote is that they won't vote for you and your friends in the same proportion as the Right People will, right? You just can't trust Them with the franchise! Just like you can't trust women to vote correctly. Or those of other religions. Or even men who don't own sufficient income-producing real property.

What is perhaps most shocking is that the sport of Ty Cobb (notwithstanding recent revisionism) and Kennesaw Mountain Landis is more aware of and respectful of racial equality (to your cost), Governor, than you appear to be. Which is rather ironic in that one of your state's most famous residents was assassinated this day in 1968, while fighting — nonviolently — for racial equality.

I've been a social justice warrior since I was 18, when I read and then swore to support and defend the Constitution of the United States — specifically including the Fourteenth Amendment — against all enemies, foreign and domestic. It appears to me that the Governor of the State of Georgia either didn't read the Constitution, or didn't understand what "equal protection of the laws" means. Or else he's just an oathbreaker — an interesting contrast given what else falls on April 4th this year… although perhaps pointing a few days earlier in the accepted narrative.

30 March 2021

Insurance-Denial Link Sausage Platter

Well, I was supposed to be fasting overnight (except for the tasty, tasty "special" beverage) in preparation for making TMI movies of my intestinal tract, but the insurance company decided it was unnecessary so won't pay for it. Which is consistent with the theme of this link sausage platter. So blame your indigestion on my insurer (which points disturbingly back toward my intestinal tract).

  • This nation was founded, in large part, on the concept that major policy decisions should be undertaken only after there's a real opportunity to vote for (or against) those who actually make those policy decisions. At a jurisprudential level, this gets into the legislative-delegation problem; at a broader level, it concerns whether those with quasireligious attachment to specific policy doctrines really want a vote in the first place, or would instead prefer that we look at a lot more like the Holy Roman Empire. Not excluding boundaries drawn by self-interested, self-righteous idiots (all too much like boundaries in Africa and Southwest Asia, drawn by upper-middle-class-and-upper-class white European men with little or no understanding of either the geology or historical geography of the area).

    Of course, a lot (not all) of the tension behind this could be reduced by recognizing that most people travel just a little bit farther in their ordinary lives than did rural eighteenth-century colonists, and by implicitly rejecting the concept that "the precise location of one's pillow determines one's proper political subdivision." We should have multimember districts… with voting systems designed for them, instead of simplistic plurality/first-past-the-post systems. If we can manage to tolerate "games behind" in baseball standings, we can tolerate something slightly more complex than sheer number of "wins" (votes… or first-place votes… or voting for each and every position equally…). It's bad enough that, say, the Philadelphia conurbation extends across three states with little respect for lines drawn in the eighteenth century; but subdividing it for partisan advantage?

  • Of course, artificial divide-and-conquer is the traditional means used by those in power (in the West or otherwise) to ensure that they remain entrenched in power. It's not just overtly in government, either; consider the problems created by measuring "media success" with the same metrics as "widget production", or — at the next stage, when things become really hostile — overt union-busting (carefully avoiding mention of anything relating to warehouse workers) (damn, I blew it there, didn't I?).
  • All of which rather pales next to paying our overdue bills for preventing things from getting worse. Bluntly, the genocidal acts in Rwanda and former Yugoslavia and [redacted] and [redacted] are all direct consequences of inadequately trained, equipped, supported, and otherwise insufficient peacekeeping forces. You don't get to be guiltless at the later horror if it was in your power to take effective steps to prevent them — specifically including paying 0.008% of your defense budget, less than the cost of one moderately-advanced fighter aircraft a year — and you chose not to. It's the pretense that preventive maintenance isn't cost-effective (tell that to the survivors).
  • Last, and most disreputably, we have self-interesting real-estate magnates bitching, whining, and moaning that "we can't suspend evictions and foreclosures forever" because, well, that would limit the investors' ability to profit.

    Why the f*ck not? Is there something "magical" about real-property investment that means those who invest in real property (and you should ask yourself why "land" is the only "real" property, and ponder the linguistic issues across languages there) don't have to share in all of the risks of any other kind of investment? Consider the other link sausages along with that, too; for example, "eviction and foreclosure" also have a strong tendency to move The Wrong Kind of People into more-easily-gerrymandered voting districts.

    This is another example of those-with-excess-capital having the real sense of entitlement. Investors in residential real property in this nation are disproportionately those who have benefitted from inherited wealth; even those who think of themselves as "self-made" have a high tendency, if one looks at their profiles, to have so benefitted (even if only within self-identified communities). And now they're demanding yet another benefit for themselves: Calendar-tied payments and rights to exclude in a time that the calendar is völlig beschißen by events outside the control of those required to make the payments.

    We're all in this together. You're not special snowflakes. OK, you think you are (and your skin tone is disproportionately snowflakish)… but I really wonder what gives y'all the privilegeright to whine about your business failures when the one "acceptable" investment class that completely violates the principles of "diversification" and "modern portfolio theory" is "residential real property." We snicker at those who put their entire life savings into cryptocurrency speculation or a single hot stock, but we're supposed to have complete sympathy for those who do the same with houses…

26 March 2021

They're Repressing Me!

Public discourse is getting… weird.

Not all that long ago — or that far away — this video expressed the Left's view of how its members were treated in public discourse. But in a bizarre rewriting of history, the Right now claims the dubious virtues "granted" the Left in the 1960s and 1970s. The Right now claims that any criticism of its precepts, let alone of its heroes, totally destroys the credibility of the critic on all subjects.

I've observed this increasingly on message systems and boards for writers and other creators in the past fifteen years or so. The Sad Puppies (better, the Mangy Curs — because, well, they were and are) were just one, particularly vile symptom of the ideological Right's special-snowflakeness. What bugs me the most about the phenomenon, whether it's Left, Right, or Upside-Down, is that too often these loudmouths forget that what they're saying is not contextless.

For those screeching that any criticism of Ronald Reagan is "knee-jerk banner waving" and/or otherwise unjustified,1 remember that part of Ronald Reagan's legacy is his wife. His second wife (and all of those "beautiful white faces," which is far from the worst).

For those screeching that any criticism of corresponding, iconic figures on the Left who rose to power is similarly inappropriate, remember that their Close Personal Friendstm are usually no better.

For those screeching that any criticism of a Black postcolonial leader in Africa is similarly inappropriate, remember that among them were/are Idi Amin, Robert Mugabe, and Juvenal Habyarimana (who is usually classed as a "moderate" there!).

For those screeching that any criticism of a female leader is similarly inappropriate, remember that among them were/are Maggie Thatcher (of the Battle of Orgreaves), Eggdwina Currie, Christine Lagarde, and Jiang Qing.

And so on. <SARCASM> These various heroes have no baggage. Just ignore that line of U-Haul trailers (some the size of double-length articulated lorries) behind them… </SARCASM>

Context matters. What you think your hero stands for may not be what someone else thinks that same hero stands for. Consider how the Iroquois thought of George Washington. And if your experience base is different enough from that other person's experience base, you might both be right… and don't expect everyone to follow the course espoused by Aaron Burr in Hamilton and not stand for anything, for the sake of not offending anyone. The only way to tell who's really King involves determining how much fecal decoration he has; even that doesn't mean he has two coconut halves to bang together (or, maybe, it does…).

For those who nonetheless demand that politics be kept out of the arts, out of the lives of artists, I commend to you an aphorism by a true hero of the Left (who definitely had feet of clay himself): "The opinion that art should have nothing to do with politics is itself a political attitude." And it is a political attitude that cannot be accepted by the powerless, inside or outside of Room 101.

  1. Who disproportionately had little or no true adult responsibility during the Reagan Administration, and in particular had little or no adult authority during the Reagan Administration. Those of us who did in my experience tend to be much more skeptical of the hero worship. Even among the conservatives.

25 March 2021

A Smattering of Elemental Strategy

So, Sidney Powell (or at least her counsel) thinks that Dominion's libel complaint against her should be dismissed because no reasonable person would have believed the factual assertions she made (PDF, large document) ("MTD") supporting The Orange One's "massive voting fraud!" narrative? A narrative that specifically named Dominion's machines not as "vulnerable"1 but instrumentalities of fraud? This collection of modern major-generals has — as is all too typical among political-operative-type lawyers — no smattering of elemental strategy at all.

First, and perhaps most legal-neeperyish, this is the wrong motion. Leaving aside the mischaracterization of Iqbal concerning what it incorrectly captions as a "Standard of Review" (it is, instead, a "Standard of Decision" — since this is in front of the District Court, there is nothing to "review" as of yet; that's for the appellate stage) (PDF at 34 logical|19 enumerated), there's a fundamental logical problem. A motion to dismiss cannot weigh evidence; in federal procedure, the only weighing of evidence takes place at trial. Compare Fed. R. Civ. Proc. 12(b)(6) (this motion), 12(c), and 56 with Fed. R. Civ. Proc. 52. And, logically, that is precisely what a claim that "no reasonable person would conclude that the statements [Powell made concerning Dominion] were truly statements of fact" (MTD 41–42|27–28) requires, despite the attempt to (mis)characterize this inquiry as a pure question of law immediately preceding that. Thus, on purely procedural grounds, this is an improper motion for which there is no good-faith basis in law (cf. Fed. R. Civ. Proc. 11(b), of which more anon). And the motion itself is logically inconsistent with the attempts to claim that this is all about "robust public debate" on matters of "interest" to the public, and the high values of the First Amendment: The motion itself would cut off "robust public debate" on matters of "interest" to the public like the scope and extent of any immunity from consequences extended to mouthpieces, and the standards of truthfulness expected from public officials, and perhaps most to the point the standards of conduct of members of the bar.

Second, the substance of this motion throws the client's future as a lawyer, umm, under the bus. Or at least under the Federal Rules of Civil Procedure and the Texas Disciplinary Rules of Professional Conduct, in the name of "dismissing" this lawsuit.2 This is a logical consequence of what Powell did with her not-understood-as-fact-by-any-reasonable-person assertions: She incorporated them as factual matters in pleadings before other courts. In federal court, this violates Fed. R. Civ. Proc. 11(b)(3), which requires that every paper or pleading signed by a lawyer contain only

[] factual contentions [that] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

If they could not be reasonably believed to be factual contentions, and they're identical to purported factual contentions included in legal pleadings signed by the same individual, We Have a Problem.

Perhaps more to the point in the abstract — but, given the profession's fundamental refusal to self-regulate, easily dismissed in practice — Powell's statements in multiple places (not just those identified in Dominion's complaint) and multiple pleadings (which are absent from the MTD, presumably relying upon purported "privileges" exempting legal papers from defamation claims) implicate:

  • Tex. Disc. R. Prof. Cond. 1.01, requiring competent representation (a complaint containing no factual allegations)
  • Tex. Disc. R. Prof. Cond. 1.02(c), prohibiting a lawyer from "assist[ing] or counsel[ing] a client to engage in conduct that the lawyer knows is criminal or fraudulent"
  • Tex. Disc. R. Prof. Cond. 3.01, requiring that a lawyer present only meritorious claims and contentions to a court
  • Tex. Disc. R. Prof. Cond. 3.03, requiring candor toward a tribunal (that is, can't lie to the court!)
  • Tex. Disc. R. Prof. Cond. 3.04(c)(2), prohibiting reference to material "that the lawyer does not reasonably believe… [will be] supported by admissible evidence" or assertions "of personal knowledge of facts in issue except when testifying as a witness"
  • Tex. Disc. R. Prof. Cond. 4.04, requiring respect for the rights of third persons (like all of those election officials)
  • Tex. Disc. R. Prof. Cond. 8.03, requiring self-reporting of professional misconduct
  • Tex. Disc. R. Prof. Cond. 8.04, prohibiting "misconduct" including breach of the disciplinary rules

which should at least start the ball rolling on, at minimum, an inquiry. But, realistically, won't, because the profession's "self-regulation" is largely illusory and perhaps most of all when it interfaces with politics.3

It's fairly clear that there was substantial underappreciation of strategy here. Unless, that is, the strategy in question involves subverting the course of justice in the name of political power, in which instance we're merely down to bad tactics… that just happen to be utterly inconsistent with the Rule of Law in general, the (stated, at least) values of the legal system in particular, and the rationale for the First Amendment invoked so enthusiastically in the MTD. Time to save the town! Fix bayonets! Forwaaaaaaard!4

  1. Every vote-counting system is, in some sense, vulnerable. It's trivial to prove it; and in the long history of elections, virtually every possible system to produce a result different from a hypothetical true-and-accurate count has been at least tried. (The irony that those that succeeded are less likely to be detected than those that failed has escaped much scrutiny.) The key question is whether the combination of actual, overt, intentional security measures and the field usage of the systems in question is systematically and/or manipulably vulnerable.
  2. Whether the MTD subjects Powell's lawyers (Messrs Kleinhendler, Binnall, and Joseph) to potential sanctions and/or ethics inquiry is itself an interesting question for another time. In the fundamental, logical sense, it's precisely parallel to the criminal-law "fruit of the poisonous tree" doctrine… and that, itself, requires considerable, careful thought. The MTD is on its face improper and fails to acknowledge its precondition — that determining whether a "reasonable person" might believe the specific statements at issue in their context does not require any weighing of evidence — and therefore fails of candor to the tribunal (Tex. Disc. R. Prof. Cond. 3.03) and fails to make a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law (Fed. R. Civ. Proc. 11(b)(2)). This is particularly curious in that the MTD does not cite either the Colorado or the DC anti-SLAPP statutes as grounds for dismissal (cf. MTD at 12–13|vii–viii) — the perhaps singular exception to the "weighing" problem, because anti-SLAPP statutes are ordinarily substantive and not procedural (see, e.g., Sherrod v. Breitbart, 843 F.Supp.2d 83, 84–85 (DDC 2012).
  3. As an example, consider the instance of Rod Blagojevich; the Illinois Bar didn't even open an inquiry until a year after Blago was impeached and removed from office by a nearly unanimous vote of the Illinois Senate, and didn't impose discipline for another nine years after that (dating corrected 31 Mar 2021). It's one thing to say "we're not going to hold a disciplinary hearing until the lawyer-defendant has exhausted his appeals" (of course, there's no appeal from an impeachment; any interference here would have been with the later, federal criminal fiasco); it's another entirely to refuse to even open an inquiry. That trade protection, self-interest, and machine politics then (and forever in the past, and to the present day) infect the process in Illinois is just particularly apparent doesn't make it particularly different. For example, I've been unable to find a Texas matter this century in which violating Tex. Disc. R. Prof. Cond. 3.01, without being intertwined with either client-harming financial misconduct or a defense/mitigation of substance-related impairment, led to significant discipline (my search hasn't been exhaustive, so there might be an exception).
  4. Of course, destroying a town to save it can't be done by draft-dodgers. Can it be done on behalf of draft-dodgers?

19 March 2021

Not-Made-From-Premium-Cuts Link Sausage Platter

True sign that we're in a pandemic: Thirteen months ago, refusal to remove a mask at a bank would have resulted in an arrest. Now, refusal to wear a mask in a bank results in an arrest (for good reason, I might add; the actual risk from a single person in a bank who won't be completely clear on video cameras is substantially less than H'wood would have it — especially given the high probability in Texas that another customer is carrying… and that at least one customer or staff member is infectious).

  • It's not just over here that there are "problems" with showing the feet (or knees, or all too often brains) of clay that historical figures had. Over There, criticizing Churchill is just as problematic as he was. Here's hoping that more reexamination of Cecil Rhodes — yeah, the guy who endowed the scholarships, and was more extreme than the Rhodesian Secret Police — might be appropriate.
  • I'm shocked — shocked, I say — to find racism directed at high-school athletes in central Oklahoma. In the city immediately next to the base I was stationed at. Midwest City is not where real veterans live… and real veterans support the First and Fourteenth Amendments in the first place. It's most especially not where Black veterans live; there was nearly overt redlining in the 1980s, and on all evidence not much has changed. (And Norman, 40km away, wasn't any better.)

    When I was stationed there, some of us "out of town" carpetbaggers joked that OKC was a western suburb of Birmingham. If this was a mere "hot mic" issue, it wasn't the first time. Racial slurs don't just suddenly pop up for the first time in a broadcast booth; they're habitual, even if seldom spoken aloud for fear of criticism. That implies that management already knew… or was wilfully blind…

  • …just like the NCAA. What part of "disparate impact" do these maroons not understand? Or is it just that the athletic hierarchies are Special and don't have to follow rules, or act consistently with the educational missions of the colleges and universities with which they're affiliated? Is it too early in the morning for obvious rhetorical questions? Is my DIII background showing?
  • Which, now that I think about it, sounds an awful lot like how streaming-music artists get paid. Or, far more often, don't. One wonders what a similar look at the publishing industry would reveal — presuming that the underlying data hasn't been even more thoroughly fudged. Or about the viability and privacy of the revenue streams, and the implications for the future of streaming music (or video or text) as privacy awareness evolves. (Hint: I have no accounts that allow tracking of media, and use the text-based ones only for comments on certain websites — then log out and clear all cookies and other trackers after each comment.)
  • So this misguided loon thinks the Supreme Court should be packed with "economists" because economics isn't represented well enough. Tell that to anyone whose standing has been denied because there was no discernable injury to property. More to the point, what part of "profession" can this loon not spell when given the first seven letters? Oh, wait, is that seven letters in a command or free-market economy (and no, the correct answer doesn't begin "l-a-i-s-s-e-z" no matter what)? And does "economist" include the most-recent Secretary of the Treasury, who repeatedly demonstrated his inability to distinguish between M1 and M2, between GDP and GNP, and between investment and expenditure, in his (rare) Congressional appearances? Most critically, what leads anyone with the social awareness of a plantation owner (or diamond-mine owner) to believe that "economics" is, or should be, the place one looks to

    focus more broadly on the important implications of its decisions for society and to reduce the likelihood of ideologically motivated decisions that are harmful to the country

    when the last member of the Court with even an undergraduate degree in STEM earned his math — not natural science or engineering — degree 92 years ago? And whose nomination in the early 1970s has been followed by twenty nominees who didn't have even that much of a STEM background (but included several "economists")?

    If you really want an example of just how well those "schooled" in economics focus broadly on the important implications of their decisions for society, just look at how well all the economists and business-school graduates handled the pandemic last year. One wonders exactly what "applied microeconomics" cost-benefit analysis was done this time, and especially whether that analysis contemplated broad, important implications like the medical-burden component of consumer bankruptcy filings studied over time since the early 1990s. By "non-economist" Harvard law professors who've gotten themselves elected to the Senate, for example.

    I'm thoroughly in favor of more academic rigor, and especially of broader experience, on the Court. But "economics" needs to wait its turn behind science, and military service, and literary/linguistic analysis. There is, if anything, too much (mostly voodoo) economics in, and lurking behind, jurisprudence in the last century. And nothing is going to happen as long as law schools refuse to require a truly broad education for 1Ls, such as even a full year of acceptable-to-majors laboratory science and a full year of calculus — let alone face the "GPA and activities penalty" problem. (The less said about either the professoriate or partnership-level practitioners, the better; the narrowness isn't just there, it's rigorously enforced in a way that denies meaning to all undergraduate, indeed all outside-of-law-school, academic endeavors.)

    And lurking behind all of this is race, entitlement, and the original position — none of which, on the evidence of this loon's misguided screed, fall within the expertise (or even awareness) of "applied microeconomics." And that circles back to what the "profession" of law does (or is at least supposed to do) via the discovery process and the rules of evidence: Validate the inputs. The contrast with economic models that ignore input-validity problems, like the "academic rationale" for the HHI (which is based upon WWI-era consolidated production quantities of unfinished national-defense commodity materials, as reported by various governments with no auditing or other scrutiny whatsoever, and extended ipso facto to finished goods and services throughout the economy), is itself instructive. The tl;dr version: GIGO.

12 March 2021

Intestinal Fortitude Link Sausage Platter

Just remember what link sausage casings are made from. Or at least that the ancestors of "modern" and "vegan" casings were made from

  • Once again, a "conservative" opines on the needs and propriety of military personnel. Maybe not so much, and that's before considering this pundit's… experience deficit. (Hey, it's early, I'm trying not to scorch my computer screen before noon.) Leaving aside the problem of a privileged white boy with no first name — all he's lacking is some Roman numerals after it to thoroughly demonstrate his ancestral entitlement — he's got no experiential base at all. According to any number of online profiles, his application to join the CIA was rejected, and that's as close as he got to actual service. Or a leadership position or training; he's not even trying to misapply MBA lessons to the military like most pundits!

    Of course, this is far from unusual. Very, very few conservative icons served in the military, particularly since the end of the Second Thirty Years' War — and even fewer in large-unit leadership positions (most of those prominent politicians who did serve were in back-office-technical areas like intel and JAG — which however important they are, just don't require or offer the same leadership experiences — and/or in small-scale units as pilots and such below the squadron-commander level). The irony that the closest the biggest admitted conservative public icon of the GOP got was playing a soldier on camera seems to have escaped the militarists.

  • Maybe it's that ancestral entitlement that is the real reason that politicians are a**holes. Just think about all of those "good 'murikan" families who claim entitlement to power… and suppress news of their misdeeds for decades and longer. You don't have to be a big-city mayor like a Daley or Pendergast, either; the county sheriff near a base I was stationed at was the third generation in his family to hold that post.
  • The contrast of the two preceding sausages with those who politely object is fascinating. Even more interesting will be seeing how Ms Pender and the rest of her 93% Club (who, presumably, have equivalent objective credentials) are getting along a decade from now, about the time that the "advantages" of the 7% become a glass ceiling for everyone else. And not just in the UK. Or in civilian schools; one wonders (for about two seconds) about how this affects the US military academies and, more to the point, the "diversity" of flag officers…
  • It's really, really embarassing when the nation of Louis XIV, Napoleon, the Bourbons, de Gaulle, and Petain demonstrates that it accepts the ideal of the democratic republic better than the US does. Maybe that's just a hint in the right direction regarding someone else — before turning into newts (or Newt). Hey, this sounds like another flavor of that ancestral entitlement thing…
  • Then there's the collateral damage problem that goes along with just about any broad-based program, especially one that makes unwarranted assumptions from several decades ago. Authors — at least those who haven't sold out to become Big Media figures — know more about the "gig economy" than any "driver," though. Consider the class assumptions behind an every-six-months schedule for payment of royalties. One wonders what the 93%ers might have to say if they unwound that to its assumption that no author is relying on "royalty payments" to eat or pay rent… or taxes… or medical bills/"insurance"…

09 March 2021

Royal-Family-Free Link Sausage Platter

The pile of sausages in the smokehouse is getting a bit excessive. Here are a few spicy ones from toward the top.

  • Seattle traffic is, notoriously, among the worst in the nation. This is largely a legacy of NIMBY and, well, geology, but if you didn't grow up here you've got little chance of working behind the mythology. And then, there are the predictable consequences of trying to adapt. The fundamental problem is that too much data is being gathered in the first place; all that is actually needed to understand the fluid flow is "water molecule," not "identity of water molecule," because nobody actually cares about turbulence. At least not for traffic flow; for other, darker, inimical purposes, that's much more… interesting.
  • Conversely, there's not nearly enough tracking being done regarding music royalties to compensate the creators (both artists and composers/songwriters). It's an interesting conundrum, because too much knowledge of individual listener profiles implicates the preceding sausage without even filling up the gas tank — for at least equally inimical reasons.

    The fundamental problematic ingredient in both of these sausages is that the line for "acceptability" depends very much on both the stated purpose and the hidden agendas/potential for abuse of the data tracking and aggregation. Both of these evolve over time. And it's not just some "pop music? who cares?" sort of thing, either; PMRC would have loved having more than a "mere warning label." And would have loved not actually paying the Filthy Fifteen anything because the data-analytic system sucked all of the money out on the way. Meanwhile, the really subversive stuff like this piece gets a pass because it's "classical" and the performers are getting paid even less…

  • Or we could get completely self-centered and oblivious. Consider, for the moment, cooking videos ranging from "celebrity chefs" on down. I'll freely admit that with extremely rare exceptions, I'm one of the "get to the damned recipe already!" consumers of "cooking" videos… because I'm restaurant-trained and usually trying to solve a specific problem, often because I'm working from a different source or quantity of ingredients. Oh, you think I should value the cook's humanity… perhaps while admiring the thousands of dollars spent on name-brand appliances and oversized kitchen spaces never dreamed of in an apartment, or relationship with "artisan" food suppliers whose products aren't available to the "wrong kind" of customers, or pretending that there's no prep work or cleanup involved, or failing to consider the health consequences of adding that much salt/sugar/saturated fat/whatever else to dishes that are impliedly for everyday consumption.

    The higher the "production values" of cooking videos, the more prevalent these problems get; the less said about full-blown "episodes" with artificial "challenge conditions" (often subtly racist, as in the "30 minute time limit" that rules out rice) the better. Just ask yourself this: For even a less-pretentious-than-average host like Alton Brown, how much did that kitchen set cost… and what does it imply about any dwelling in which it is the "reg'lar use kitchen"? (And does he actually have a dishwasher? If so, where is it?) The less said about "sanitation standards" from these restaurant-oriented cooks, the better; I still cringe at the memory of a certain Food Network personality (who was taken off the air for, well, humanity flaws) and her multiple ostentatious rings being shoved into the dough and caked-on makeup flaking off into the soup pot.

    But it's really about intellectual property protection — and the lack thereof for "mere" recipes. Recipes are avowedly outside of copyright protection; so how does one protect against "free" copying? By imposing extras on the recipe that rise to the level of literary expression, not mere directions (n.b. Circular 33 is notoriously overinclusive and dismissive of litigation results). Again, that reveals a side of the "humanity" of cooking hosts that is just a bit uglier — the offal (or awful).

    Here's my challenge to foodies: Show your skillz by adapting to a middle-class apartment kitchen. With an electric stove, and consumer-oriented equipment, and a budget. Not to mention kids running through the set grabbing snacks. That is a cook's humanity — not their artificial on-screen presence or implied wealth (because no matter the Prosperity Gospel, consider fish and manna)…

  • So it looks as if some form of additional pandemic relief will be forthcoming. For some people, anyway. There's very much a "right-kind-of-peopleism" involved in this; "true entrepreneurs" can apply for subsidized grants and loans, but that almost certainly means that they already had excess capital to start their businesses in the first place — they could afford having significant negative cashflow for several months at startup time, for example. And the less said about how this relates to the American obsession with "who's eligible to join a union?" the better; calling that argument an incoherent, class-warfare-and-relics-of-slavery-ridden swamp would be far too generous.
  • Last for now, and far from least: There's a new feature of isolationism in general, and Brexit in particular: The impending, inevitable body count. Not to mention the mistargeted reactions thereafter. It's a feature, not a bug. And it's not just Over There — especially the "wrong kind" of people.

01 March 2021

What We Have Heyah

… is failyuah to communicate.

26 February 2021

A Different Kind of Hoodie

The Confederate Political Action Committee conference has demonstrated that it's not about "conservatism" at all. It's about allegiance to the plantation economy prior to passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. The only way that an "originalist" or "social conservative" reaches this result is by ignoring every "amendment" to the 1787 text… which sort of eliminates protections against the evils of government regulatory takings (Amd. V) and sort of undermines state sovereign immunity so necessary to a Confederate mindset (Amd. XI). It's about pretending that Pasteur, Koch, and Lister never developed the germ theory of disease <SARCASM> OK, so they were furriners. And it was after the Eleventh Amendment, so it wouldn't count anyway. </SARCASM>

No, this isn't about ideology at all: This is about tribalism. About giving voice to only the "right" people — those who look just like they do, dress just like they do, talk just like they do (including all malapropisms and rejecting anything not in good 'murikan Anglish), dress just like they do (easier thanks to recent President's Day sales at Montgomery Ward Sears KMart Penney's Wal-Mart, even if the sheets were imported).

And reject everyone and everything that is Other, in any discernable respect. Foreigners. Other races and ethnicities. Non-christians (different tribes of Abraham, different religious frameworks entirely, no religion at all). Nerds and intellectuals who aren't using "learning" solely as a means to more power. And we won't even mention those sexual issues that, statistically, are non-zero within their own population (however suppressed they may be).

They'll never manage to ponder whether there's not just implicit, but explicit, acknowledgement of fallibility and the need for change built right into the Constitution, and not just implicit, but explicit, denial of states'-rights supremacy built right into the pre-Thirteenth-Amendment Constitution. CPAC demonstrates "my party right, never wrong" to an extent rejected as consistent with any reasonable conception of "civilization" at Nürnburg (<SARCASM> oops, international law, so it doesn't count </SARCASM>). Plus, the Confederacy lost — get over it.

In short, "movement conservatism" has little to do with conservative thought — Burkean, Hayekian, whatever — beyond convenient marketing memes. And CPAC has even less, whether held virtually or in Cancun (paid for by whom, one must wonder).

23 February 2021

Edinburgh Fringe Link Sausage Platter

My sick/grim sense of humor is on full display here — I find all of these amusing, and would even if made into haggis (a month late).

  • It looks like cows have free speech, too. And certain Congresscritters have skin too thin for representative government (and, therefore, inappropriate for fine leather products) — they aspire to power as of right, and incontestible.
  • Sort of like uppity athletes. I'm reasonably sure that Messrs Smith and Carlos never expected to have this kind of company — company that merely quietly kneeled. It's rather shocking that the man defending Kaepernick is the white man whose job Kaepernick took in the first place… which says something profoundly disturbing about "talent evaluation" in the NFL. And meanwhile, the owner of a team that damned well could have used Kaepernick and his skill set this past season further profits from disasters; only time, and detailed reporting, will show the, umm, anticipated imbalances in the population of those most exploited.
  • Then, we continue to celebrate antisemites in American letters. They just have to avoid being acquitted of treason on grounds of insanity. The Cantos are not distinctively, explicably lesser than The Wasteland; there were and are other things at work… including, admittedly, inability to stomach the overt vileness of one author compared to the other's genteel bigotry, and that's not a sufficient explanation. It actually gets much murkier than that when one starts looking at 1930s through 1950s academic articles and musings and curricula, but only by reading between the lines (and listening to the silences, especially those silent-but-embarassed agreements all too common in certain self-nominated cultural centers).
  • Both preceding sausages (or at least their ingredients) are likely to become excessively footnoted without engaging with content or context. The irony that the footnote was originally not to document sources, but to actually engage with the subject matter in a more personal way — Swift's "use" ("parody" isn't quite right) of footnotes in A Tale of a Tub, The Battle of the Books, and other essays is one method bearing further consideration — has escaped the law-oriented source of that commentary. But then, irony usually escapes law-oriented sources, only to be run down and reimprisoned; for example, for the first decade after it was issued, Gideon was essentially available to those most in need of its protection — the indigent, the uneducated, the disproportionately minority and/or ne'er-do-well — as rumor, or at best by implication from a Miranda warning (same problem). Not even in a footnote.
  • From the Very-Late-to-the-Party-Indeed desk, consider the problem of e-mail trackers, which I've been concerned about for about a quarter of a century. <SARCASM> Yeah, they're "just" for marketing purposes. Riiiiiiiiiiiight. </SARCASM>

22 February 2021

One Month In

… and we're getting closer to a disturbing "milestone." Hopefully not a milestone for budget purposes.

Total US COVID-19 deaths as of 21 Feb 2021 (latest official report) 496,112  
Total US deaths recognized and memorialized at the Vietnam Memorial 58,318 
Length of Vietnam Memorial (meters) 150.5

Therefore, I shall require The Orange One to build (496,112/58,318) * 150.5m = 1.28km of that border Wall. With every name inscribed on it. That he must read out loud, which should take just about five weeks at the rate they were read at dedication of the Vietnam Memorial in 1982. That's five weeks that he won't be spouting insanity and fomenting insurrection, especially if it prevents him from speaking before the ConfederateConservative Political Action Conference "convention". (Which is not to say that all conservatives are unreconstructed children of the antebellum South — just that CPAC is.)

Plus, it's cost effective. The Vietnam Memorial was budgeted at $8.4 million in 1978. Allow for a little bit of cost overrun, and estimate $10 million in 1978 dollars, or roughly $45 million today. This is just about 8.5 times as long, so it might cost a hair over $380 million — less than six percent of The Orange One's CDC budget request for 2020 (PDF). Surely, even given some trouble with past tax returns The Orange One can, and should, pay it; if one believes him, he can certainly afford it from pocket change, and my demand has exactly as much moral and legal force as a demand that Mexico pay for a wall at the US-Mexico border. Maybe Deutsche Bank can provide the completion bond?

We're getting closer to the target length for such a wall, too; but at the old/new location: 26.676944, -80.036944. Walling up his kids (and all other relatives like daughters-in-law), too. OK, so parts of it might require some marine engineering, but that will be even more good jobs!