17 February 2018

Shut Up and Drivel

Earlier this week, the Fourth Circuit demonstrated yet again that it understands "separation of powers" better than does the guy at 1600 Pennsylvania who keeps proclaiming that he has unfettered executive power. In the latest iteration of the IRAP/Islamic exclusion fiasco (PDF) warning: 285 pages!, the court took up its obligation to view evidence… and presumed that the President said what he means and means what he said. That is, that he's not just another politician.

In the extraordinary case before us, resolution of that question presents little difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual basis” for its actions, here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

IRAP v. Trump, No. 17–2231 (4th Cir. 15 Feb 2018), slip op. at 42 (internal citations omitted). As the court later discusses, it essentially has no choice in considering the repeated, persistent statements made by the President that make clear that regardless of any other motivations, a specifically prohibited miasma of religious bigotry (I don't have to be as polite as the court) forms not just a cloud near, but the entire atmosphere of, the Islamic exclusion order. Id., slip op. at 45–52.

The court respected separation of powers by taking Trump at his word, not based on the "he really meant to say" post hoc rationalizations and spin doctoring from the, umm, communications "professionals." (Of course, if they were truly professionals, there would be an enforceable code of ethics…) But the court respected him, took him at his word, and therefore had no choice. Because, after all, courts are not legislative bodies entitled to rely solely upon ideological and policy preferences: They are confined by the facts and the record and the specific dispute before them.

I suppose it beats telling men who grew up in segregated areas and saw classmates succumb to — at minimum — the continuing vestiges of "three-fifths of all other persons" to "shut up and dribble" because just being citizens doesn't entitle them to have opinions, if you're a talk-show host whose own education was segregated in a rather different manner. But not by much.

10 February 2018

Which Politburo Member Is Absent From the Reviewing Stand, Comrade?

…which is the real question that we must ask if Drumpf gets his large-scale military parade. A year ago, we might have been asking about whether Scaramoucci was off doing the fandango instead of the parade; last week, it might have been which top aide has been thrown under the bus this week (and it will be next week, but predicting which one is not exactly easy).

As a veteran, I magnanimously allow —

Later on, of course, we'll be asking questions about how the official photographs of the event were altered, particularly if Sublieutenant Ogilvy is recognized for his sterling contributions to some purported victory that, in the broader scheme of things, turns out to have been either wholly invented or utterly irrelevant to the battle for control of the Malibar front. Meanwhile, the Two Minutes Hate (of Immigrants) will continue, and we will remain at war with Eastasia (we have always been at war with Eastasia).

07 February 2018

It's Not About the Ads

This past Sunday was the biggest advertising day of the US year: The Super Bowl. For a variety of reasons, I needed to watch the game over the 'net, using authorized, legal access to NBC's sports website.

I loaded up Firefox, and couldn't watch the game. Instead, I got a message that I couldn't see any streaming content in a browser that had an active adblocker — which I use not due to the ads themselves, but due to the privacy-invading tagalongs with the ads. So I closed down Firefox and loaded up Internet Exploder (this is a fully-patched-and-up-to-date Windows 7 machine with a decent-sized screen and decent-quality-and-volume speaker system). This machine's IE installation does not run an ad blocker, so NBC's site allowed me access to the streaming Super Bowl broadcast.

Sort of.

The actual game broadcast played just fine. None of the touted, and in many years more entertaining than the game, ads played. Not one: They were all replaced by a silent placeholder screen. When I explicitly used a marginal web browser that did not have an ad blocker installed.

Internet content providers, you keep using that word ("advertising"). I do not think it means what you think it does. More to the point, it's clear from this set of circumstances that NBC really didn't care about advertising; it wanted the viewer data, presuming that I was glued to the screen despite having to go cook dinner in the middle (I missed out on yet another incompetent "musical performance" — schade). And it wanted the opportunity to plant a metric boatload of tracking cookies, which I manually deleted immediately after the game ended.

That, it seems to me, is itself deceptive advertising…

03 February 2018

Buried Lede Link Sausage Platter

Perhaps not the lede, but at least the overt politics. Not that deeply.

  • A different take on "urban planning" seems necessary, and not just for the arts.
  • If you really need proof that the wrong people are in charge in publishing, consider yuuuuuge advances for celebrity "memoirs" and similar works. Leaving aside the fundamental dishonesty involved with these almost-universally ghostwritten (and seldom acknowledged as such) works — which would at least be a matter for discussion in any kind of writer-respecting society, or in which "trademark as a designation of origin" was enforced with anything approaching an even hand — the real problem with this article, and all of the juicy finger-pointing, is that it stops where it does. As appalling as seeing these figures is, articles like this one don't ask the obvious follow-on question: What are these distortive transactions doing to the rest of the marketplace?

    That doesn't just mean "the rest of the memoir segment," either. Even a megacorporation like HarperCollins has a budget for advances, and outsized advances offered to a few authors act as fat leeches on the advances offered to everyone else. The less said about how this sort of thing affects behavioral allocation of other resources (availability of review copies, promotional effort aside from budget, etc.), the better. On the other hand, a fuller analysis would also help torpedo the myth that the publisher isn't making a profit until the advance has been earned back… and that's definitely not something that the publishing industries want authors to understand.

  • At least I'm not the only one who is skeptical of Apple as a closed-system content provider. Cupertino has just never struck me as sensitive to creators/authors, perhaps — and only perhaps — to a certain type of commodified middlecreature. Welcome to the party, Bloomberg, because fundamentally Apple's plan all along has been to require one to engage in tying arrangements declared unlawful under antitrust law half a century ago.
  • An interesting piece — an interview with "Bob Roberts" — reflects on some of the predatory behavior in H'wood… and prefigures similar predatory behavior that is already unfolding in publishing:

    Aside from his monstrous behavior with women, Mr. Weinstein ravaged Hollywood in other ways, Mr. Robbins posits, adding that, though the producer was hailed for his good taste, “you could make the argument that Harvey’s overall impact on cinema was negative.[…] What happened is, when Miramax became as successful as it became, every studio all of a sudden wanted to have an independent arm,” he says. “So they all set up their little boutique companies that would do ‘independent’ films, quote unquote. And it wasn’t that they were independent or edgy or that the content was risky or provocative. It was more that it was independent of paying people what the studios had to pay them. And so it became this way of making films on the cheap and not committing full studio resources into those kinds of films.”

    When Mr. Weinstein asked Mr. Robbins to star in an indie called Smoke, shortly after the producer had sold Miramax to Disney for some $60 million, the actor remembers confronting him, saying: “‘Harvey, the talent made your company and you’ve been paying them scale for years. And you just put a fortune in your pocket. When are we going to see some of that?’”He said that Mr. Weinstein called back an hour later to say that he would pay Mr. Robbins a million dollars to do the part but ordered him not to tell the other actors, who would still get scale.

    Maureen Dowd, "‘Hollywood Is Changing,’ Says Its Veteran Activist, Tim Robbins," NYT (03 Feb 2018, typography and fake/misparagraphing corrected). Tell me that doesn't sound like the problems created when publishers refuse to release actual, auditable sales figures and rely on "scale" (the virtually nonnegotiable royalty rates) to deal with their own century-old Uber-like problem (not my first — or twelfth — choice of links, but paywalls… the irony of which in this context is just a bit overwhelming).

  • I promised that I'd allow myself only one, context-sensitive reaction to the State of the Uniomn-Busting speech, so here it is:

    It's the fault of law schools.

    So, so many people in government and politics have law degrees. By itself, that's fine. The problem, ultimately, is who is being admitted to law schools, and more finely how law schools sort the admittees into which school and cohorts within each school. It's sort of like comparing basketball teams from, say, Japan and Thailand to those from the Netherlands and Lithuania: There's going to be talent on both sets of teams, but one of them is unlikely to be well-adapted to 1990s-NBA-style every-possession-must-end-with-a-collision-and-a-dunk hoops, because demographics presort otherwise. And what the law schools — and, thus, political advisors — do is sort against science. Science undergraduates spend more time in class (if only due to the difference in credits accorded "lab" versus "lecture/discussion"), and thus have less time for activities, and get slightly lower grades on average. Further, unlike other undergraduate majors like political science and history and business administration, the top of the class in the natural sciences and engineering tends toward medical school and continuing in the sciences/engineering themselves, not law school, further "pre-sorting" the selection.

    And that means we end up with celebrated judges who establish foundational law not knowing the difference between arithmetic addition and the summation of discontinuous functions over discontinuous, noncontiguous domains (or even recognizing the possibilities of discontinuity, noncontiguous domains, duplicative cost allocation, or divide-by-zero errors); a Supreme Court on not which one of its nine members, or even one of about forty clerks, had ever even been in the same room as a semiautomated DNA testing machine, let alone observed how a routine (lab-pristine) sample gets handled and tested, before deciding matters of life and death based thereon; elected officials, disproportionately former prosecutors, who continue to deny climate change solely because some of their moneyed constituents tell them so; I won't go on. But I will call on the Association of American Law Schools to stop relying on "grade point average" as the sole measure of undergraduate achievement that it tracks, because doing so discriminates against increasingly important basic knowledge.

30 January 2018

State of the Uniom-Busting

This entire entry was written prior to hearing anything this evening from Donald J. Drumpf, Genius. Although one must wonder if he has a sideline in herpetology, having popularized the twitting maga… if, that is, he could either define or spell "herpetology."

  • Given the entire context of the State of the Uniomn, perhaps a bit on "partisan gerrymanders" is in order. That's the nice, polite way to say "rotten borough" — and if you don't know what that is without following the link, the success of American proprietors of rotten boroughs in hiding them should be obvious. (I lived immediately adjacent to the former boundaries of one of these jurisdictions for a while when I was stationed Over There, and in some ways not a lot had changed in a century and a half…)

    The courts have punted the "partisan gerrymander" issue on the ground that it is a political question. Perhaps it is in some sense, given the constitutional imperative that each house of Congress is the judge of its own elections (Art. I § 5) — but it is a peculiar kind of political question, one that implicitly asks quis custodient ipsos custodes? The obvious answer is "The voting public, of course, because it can vote out the bastards"… but the whole point of partisan gerrymanders is to make that in practice impossible. In other words, determining that partisan gerrymanders are political questions not subject to judicial oversight is at best circular logic that presumes both individual and institutional good faith on the part of the legislators, when a "partisan gerrymander" by its nature is not in good faith.

  • Sometimes scientists are short, sharp, and serious:

    Does reanimating the dead require IRB approval? Asking for a friend.

    Matt Blaze (HT: Grimmelmann). And sometimes they're not quite as short, even sharper, and even more serious:

    And then there was this, a quote from one of the speakers:

    If you follow your passion life takes care of itself.

    This just strikes me as almost the most owning-class, privileged, ugly position one can take. Yes, passion is important. Yes we all need to figure out What We Want, and what we want To Do in Life. Very important. But following your passion is sometimes only possible with a full support team (including nannies or cooks or secretaries or lab trainees that make it possible to work that 4-hour day) and, needless to say, lots of money. If you are 17 and pregnant and unemployed, there is not a lot a room for following passion.

    Working class women with three service jobs, none of which include health benefits, kids, perhaps an absent spouse, or perhaps a partner that is also working like that, or perhaps has a significant health issue, do not have the luxury of passions. Maybe they get to exercise or have one of their adolescent kids make dinner once in a while. Or get fast food, because there is just no time for cooking.

    "Potnia Theron" Of course, the bonus is that the apparent gender-specificity of the latter arises only because the target audience for the confidence game involved is primarily women — not because there are no males in substantially the same circumstances (excepting the pregnancy).

  • And sometimes, even the "short version" isn't short, being just the beginning of a journey. This is something I began struggling with in the 1980s, when confronting the differential treatments and prognoses offered in the Air Force for alcohol abuse (and even leaving aside the differentials in "referrals"). It took a long time to see what the nonscientists in charge of policy were actually basing things on… and it wasn't even as scientifically valid as "just say no." (As if that was ever an acceptable response in any context, let alone the land of officers' and NCO clubs!)
  • Serious gedankenexperiment: Consider an informal group of control persons in a defined industry grouping, whether among "all" participants in that industry or just the substantial leaders. This defined industry grouping depends upon multiple skill sets — especially skill sets eligible for H1B visa treatment — not just for profitability, but for effective function; there just aren't "enough" American trained workers with those skills…

    …that is, not "enough" at the compensation that this group of control persons wants to provide them (always, naturally, significantly less than the compensation being earned by the control persons. Which leads to the underlying question: Do various customary means that these control persons use to help keep compensation for these critical workers low (including, ironically enough, the H1B visa program itself), or at least limited, demonstrate a combination in restraint of trade in the relevant labor market, whether these means are unconscious, consciously parallel, or intentional? And if not, why is this type of concerted action exempt from scrutiny? Whether as a matter of statutory language or logic, it shouldn't be.

  • Let's consider something a little less controversial. Like controlling hate speech on Faceplant. Even Drumpf is going to be challenged in displaying more sheer arrogance than is on display on any "side" in that particular dispute. But I'm confident that he can (and will) in tonight's speech; he managed it at the inauguration.

24 January 2018

More Link Sausages Regarding Self-Inflicted Wounds

After the first sausage on the platter, the ire used to season these gets a bit… intense. There's even some ire in the first one.

  • RIP Ursula K. Le Guin, one of the three or four leading American novelists of the last half of the twentieth century (and stretching into the twenty-first). She'd be endlessly amused by the placement of the initial short death notice piece at the Grauniad UK edition, right above a story discussing the Westminster Council's rejection of plans for a statue of the Iron Lady.

    And here's The Finger to the selectors for the Nobel Prize for Literature who ignored her candidacy for so many years, primarily for political reasons often blending into overt national-origins bigotry (see, too, below).

  • "Prospero" at The Economist wonders about opera's awful role models while somewhat missing the even bigger problem with established opera. Yes, "he" is right that idiot plots abound, as do sex and violence and misogyny. Those are lesser problems; the fatal flaw in opera tends to be that the characters almost never learn anything. They might (if they're lucky) achieve contemporaneous-to-the-libretto semblances of romance, usually symbolized by an "appropriate" marriage… but that's about as close as it gets, even in the more-subtle-than-most satires of Gilbert and Sullivan and the occasional work adapted with respect from another form. In short, opera tends to be very badly, if often cleverly, written; even the musical themes too often fail to develop, being quoted essentially in full in the "overture" (perhaps the epitome of spoilers…).
  • The correct answer to this inappropriate question was the same as the correct answer to assholes doing exit polling: "What part of 'secret ballot' do you not understand?" Democratic institutions do not function well — and, ultimately, cannot function in crisis — when there is any inquiry into actual votes cast by actual individuals after actual elections. Only the fact that one voted matters.
  • The entire point of a truth-and-reconciliation process is that it works if, and only if, the abusers of power collectively acknowledge responsibility… and collectively give up power. A scapegoat isn't enough. So: The white privileged 50+ men who dominate the USOC and its affiliates have to go, and not just to be replaced by people entirely from the same demographic. And it will still be hard thereafter, especially in avoiding institutional backlash (Exhibit A: South Africa — which is immenseley better off now than in the mid-1990s, but trying to pretend that there's no "It's my turn to crack the whip now!" crisis there is more than slightly impossible).
  • General note for organizations: One does not "stay out" of a dispute — even one purportedly unrelated to the substance of an award one is about to give, or to supporting "senior" members/potential members of the organization — by accepting the first (often self-serving) narrative to come along, especially without inquiring into the agenda behind that narrative. This is the third time in a decade that this organization's leadership has engaged in the principle failure mode of organizational function with significant legal implications: Refusal to gather facts — let alone evaluate them or acknowledge that there's a difference of opinion — even when offered on a silver platter. This time, it spilled over into the personal; and so I'm gone, even though these were many of my friends. I can't remain around them when they demonstrate this collective inability — refusal — to learn; I'd just be enabling, in the same sense as enabling an addict.

    This is, of course, the excrutiatingly civil and nonspecific version that applies to many organizations throughout the arts — definitely not excluding those with the loudest voices and biggest egos based in the Manhattan echobox. The organization in question's leadership has received/will shortly receive (whether the individual members of the leadership actually read their bloody e-mails is another matter) more detail involving their collective and individual dereliction of duty.

* * *

Last for the day, and far from least, the Supreme Court has agreed to review the latest Drumpf antiimmigrant order. I implore the Court to heal a self-inflicted wound with its decision in this matter — and it can do so almost no matter how it rules.

The decisions below (both Ninth Circuit and Fourth Circuit, and both District Court and Court of Appeals) have uniformly cited to the dissent in Korematsu. Even some of the dissenting passages and opinions have done so. It is long past time for this Supreme Court to formally state something very much like the following in its opinion in these matters:

Insofar as Korematsu v. United States, 323 U.S. 214 (1944), holds that national origin is itself a sufficient rationale for disparate treatment of individuals by the Executive — even when the Executive states without more that national security concerns motivate such treatment — that case is overruled as wrongly decided.

The real bonus is that it has the opportunity to do so regardless of how it rules in the current matters… because any conceivable outcome that "it was within the scope of executive power as established by the statute and the Constitution" (the narrowest possible ground for reversal and upholding of the Drumpf executive order, whichever version we're talking about) still presumptively relates to the very issues misstated in the majority opinion in Korematsu.

Plus, that's part of a long-overdue healing process necessary from this Court as part of this Court's protection of its own credibility. It took a century for Dred Scott; hopefully, we'll be closer to the Plessy timeline (about seventy years — which actually just passed) on religion and national origin than on race.

12 January 2018

Link Sausages From Shithole Countries

There's this great honkin' statue in New York harbor that bears an inscription explicitly welcoming people from shithole countries. OK, it doesn't say "shithole countries," but is there any doubt that is what this means:

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

unless, perhaps, you can't bloody read English?

  • Ben Yagoda offers some interesting thoughts on reviewers, properly citing the intent of Sturgeon's Law even if he somewhat mangles the "canonical" version of the quote… and comes nowhere near the fundamental differences among the entertainment industry's understanding and use of reviews, reviewers' understanding and use of reviews, and the various reading publics' understanding and use of reviews.

    "Reading publics" is plural. Although both they and I read speculative fiction, I'm not part of the "reading public" consisting of fans — whether those who focus on a particular series or those whose reading decision is guided by whether a work has been compared favorably to the purported "tradition" of Favorite Author X. This is an incredibly common distinction, but because it doesn't lead to easy, thoughtless application of unproven and unprovable marketing memes, it gets almost no attention from anyone.

    But more to the point is this: I cannot judge a reviewer's credibility without seeing what the reviewer disapproves of. Knowing that a reviewer likes some of the same things I do is not helpful if the reviewer's reasons are incoherent, or infected with a secondary agenda (e.g., "must be good because it's libertarian"… with no explanation of whether that means economically, civil-rights-style, or some other aspect of accepted libertarianism, let alone hidden one), or flat wrong. Knowing that a hypothetical reviewer always gives a substantially better evaluation of any mystery that includes a defense attorney as a major character — even when ineptly depicted or worse — is important to understanding reviews of, on the one hand, Reversal of Fortune and on the other of The Firm (the reviewer I'm thinking of — a well-known one — gave them the same rating when they were first shown).

  • From the Department of Multiple Wrongs Making Right(?): Apple has accused the PTO of succumbing to (Apple's words) "lobbying" by an opponent in an administrative-law trial. That's pretty bad (and probably a case of the pot calling the kettle black, given Apple's own history with the PTO). Reading between the lines of the story, however, raises my eyebrows regarding the definition of "lobbying": I'm not sure pointing out potential conflicts of interest is "lobbying". Indeed, it's arguable that Apple's own in-house counsel violated the duty of candor — which applies to administrative proceedings as much as it does to courts — by failing to itself immediately disclose that at least one of the three administrative-law judges assigned to the matter was its own former lawyer… especially in the particular context. Of course, things get worse farther down the road, and once the spin attempts are discounted, nobody emerges with much (if any) credit. The initial purported "lobbying letter" may well have had merit on the substance, but the method was entirely screwed up, and later communications don't appear to have had the same merit.
  • And from the same department, the House has voted to extend paranoid surveillance powers. The problem is not with those operating in good faith now; it's with what the gathered data can (and will) be (mis)used for by those who are not operating in good faith, both inside the government… and outside it when the inevitable Snowden-like leak and the inevitable data breach(es) and the inevitable political blackmail occur. And I didn't even have to raise the spectre of a free and investigative press!

    If you can't get a warrant, you don't know enough to make sense of the surveillance material anyway. If it's too administratively difficult to find a judge, pay for more judges… it's much cheaper than long-term data storage anyway. If you've never even thought about converting masses of documents/recordings from today's storage formats and hardware to something useful in five years, a decade, or more down the road — and that's what it takes to deal with these things — just consider the historical and present example of IRS computer systems, let alone the VA.

07 January 2018

Stable Genius(?)

There's really only one stable genius who is truly part of the American zeitgeist:

One wonders what he'll do with himself if he ever catches Hilary in the popular votethat bird…

05 January 2018

Intellectually Honest Link Sausage Platter

First, a short note for the entertainment industry and its various hangers-on and commentators:

If you review a work, and you've been provided with documentation that the purported "author" is one or more of a self-deluding narcissist unable to acknowledge third-party contributions, a selfish bastard claiming a third party's work as her/his own without attribution, or just an egotistical lying sack of sh*t regarding credit for co-creators, it would behoove you to mention this in your review… especially when said "author" has invited consideration of the issue with public statements regarding authorship and contributions (and even moreso when those public statements are themselves ghostwritten and internally inconsistent). You don't help the credibility of your review or the source it appears in by pretending that this type of context either doesn't exist or is irrelevant to the review.

This minirant has nothing to do with the Wolff/Drumpf "book"/gossip column. It's about works of avowed fiction… not works purportedly of "nonfiction" that are so inconceivable to a rational mind that they can't be accepted as coherent fiction or indeed coherent narrative of any kind. It was, instead, "inspired" by multiple reviews of multiple works (both printed and audiovisual) that have appeared in the last ten days or so. The general issue is called "intellectual honesty," you undereducated boors… and it matters.

  • On the "free speech" front, Germany has implemented some restrictions on online speech that don't pass First Amendment scrutiny… but then, there's no such thing as a hardcore, bright-line rule that does. The First Amendment is a standard, not a rule — that's what makes dealing with it so difficult, especially to advocates of alles in ordnung. Like radicals of all types. Like computer systems. Like advertising aggregators. Like management gurus and stock-pickers. All of which explains a great deal of the problem with online speech: Suppressing the "bad bits" requires both human judgment and trust in (and backing for) the humans exercising that judgment by organizations answering to the mythical gods of "Economic Efficiency." Nothing less than clones of top management will do for that purpose, and more is probably required; of course, top management doesn't want that because the clones will want top management's jobs…
  • Then there's the issue of museums. Whom to charge for admission, and whether whatever (admittedly difficult) decision is made in the face of general governmental disdain is appropriate. And whether to have them at all. Or what belongs in a "museum" in the first place.
  • An interesting piece on medical/health quackery leaves one wondering — as a good scientist might — whether there are boundary conditions beyond which having all the best soundbites and buzzwords is no longer a marker for self-defeating lack of humility. If there are, I haven't encountered them yet. Historically, the problem has come when those pushing back against questioning from nontraditional sources have allowed their own self-interest in power and economics to get in the way of the inquiry. Too often, that's what is happening now, even — perhaps especially — when the scientific inquiry has adverse financial/entitlement implications for entrenched interests. "Climate change denial" is just one obvious current example; there are lots of others, such as the handgun industry's historical (if often subtle) suppression of research on ranged nonlethal force, the opioid crisis, the Laffer curve

31 December 2017

Arbitrary Endpoint

Just to sort of close the year out on an appropriately pained note somewhere near C#"…

  • Why doesn't it really surprise anyone that Roy Moore is not only unfit for office (as discussed here several times), but is a sore loser who can't accept that Manifest Destiny doesn't include him as a US Senator? It's almost as if a horse's ass is allowed to vote with fewer barriers — and a better ID — than many melaninically-enhanced residents of Alabama. If anything, DennisRoy Moore's history argues that the only "religious test" that should be imposed on temporal office and power in the US is that proclamation of intent to impose religious values — no matter whose they are or what they are — in office should be disqualifying.
  • The first substantive rule of attorney ethics (except in California) reads:

    A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

    Model R. Prof. Cond. 1.1. (California buries a less-clear equivalent in Rule 3-110.) This means — at minimum — that before filing suit asserting a particular statutory cause of action, the lawyer filing the suit should read the damned statute to make sure it provides the remedy what the client wants.

  • Congratulations, Wormyfruit: You've validated my demand for user-replaceable batteries. And, in a more general sense, for open systems not controlled by the original vendor. Lexmark, you're next. Then, this was supposed to have been resolved with 1960s and 1970s antitrust doctrine concerning "tying" — the reason that you do not, in fact, have to buy Xerox-brand paper for your Xerox-brand photocopier — but enforcing such doctrine has gone out of style.
  • In the next few months, the Supreme Court will issue a decision in Carpenter v. US on whether cell phone location records are protected by the Fourth Amendment. Professor Kerr offers a typically thoughtful description of the issue. I don't agree with his preferred outcome (IMNSHO, location data concerning a particular citizen — or noncitizen! — gathered by law enforcement authorities without a warrant impairs the Fourth Amendment right of the People to be secure in their persons), but both the column linked to and internal links in that column provide some necessary education.

    And, for you fans of TV crime dramas: A decision that this data is private only requires law enforcement authorities to get a warrant — show a judicial officer that there is probable cause that this particular data will result in admissible evidence relating to criminal activity. That is not a very difficult standard.

23 December 2017

Dreaming of a Whiiiiiiite Christmas

<SARCASM> A dream that has come true for the current official resident of the Whiiiiiiiiite House (who is also a privileged, entitled male, but that's for another time — if only because there's so much else to consider). He can't even claim that some of his best advisors are "colored folk" because, well, there basically aren't any among his advisors… "The content of our characters" my resectioned colon. Now all we need is a successor to Dred Scott to make the holiday season complete. </SARCASM>

10 December 2017

Ask a Stupid Question...

One of the big controversies going on in law right now concerns American Bar Association "ratings" of candidates for the federal judiciary. (n.b. State and local bar associations do the same thing for judicial elections with even less effect on anyone.) It's somewhat annoying to see that one party — the Heffalumps — has historically shown substantial disdain for the right-centrist leanings of the professional trade association of lawyers' determinations of what matters in judicial candidates. (Anybody who says that the ABA leans left should look at the ABA's various ethics rules and opinions and ask themselves how much those rules benefit the insurance industry, large-firm corporate practice, and obstructionist tactics depending upon superior resources.) But, as annoying and distressing as this is at the outset — because over time, an intelligent "conservative" judge who actually pays attention to the facts in front of him (it's almost always him historically; there aren't enough examples of intelligent "conservative" female judges in the same timeframes with full track records to support full analysis) will do a Blackmun, if not perhaps as extreme — even the ABA's ratings are woefully inept and fail to encourage diversity in the judiciary that actually matters to individual case results.

The ABA has recently, if unintentionally, provided another example of why lawyer specialization needs to be acknowledged: Formal Opinion 478, Independent Factual Research by Judges Via the Internet (PDF). This opinion doesn't entirely decry factual research, but it does implicate one obvious problem with how judges are selected, and how lawyers are allowed to press factual theories without understanding their basis, in one of the offered hypotheticals:

Hypothetical #2: The judicial district in which the judge is assigned has many environmental contamination cases involving allegations that toxic chemicals have been released and have contaminated soil and groundwater. The judge is unfamiliar with this area of environmental law. Before a case is assigned to the judge, the judge reads online background information including articles. Does this action violate Rule 2.9(C) of the Model Code of Judicial Conduct?

Analysis #2: Judges may educate themselves by independent research about general topics of interest, even on topics that may come before the judge. General background learning on the Internet may be analogized to attending judicial seminars or reading books, so long as there is reason to believe the source is reliable. Even general subject-area research is not permissible, however, if the judge is acquiring information to make an adjudicative decision of material fact.

Form. Op. 478 at 7 (footnote omitted). Which, of course, is an arrogantly antiintellectual and improper statement of the relevant inquiry: It never asks whether the judge has the initial scientific background to understand the reasoning of and basis for the articles, as opposed to taking them as accurate descriptions on faith.

The probability is exceedingly high that it is not "this area of environmental law" with which the judge is unfamiliar, and for which he or she is motivated to do research on the internet… and will probably wait until there's a brief in hand (written/submitted, in all probability, by an equally-science-deficient lawyer, however eminent a partner at a large law firm he/she may be) and use that as a starting point. After all, if it's merely the law, he or she will much more probably run to a legal treatise or law journal, whether electronically or on paper. "Online background information including articles" is not how lawyers characterize Westlaw/Lexis and other "for lawyers" legal research systems that predated teh Interwebs; indeed, most sitting judges' first experience with Westlaw/Lexis was probably via a dialup modem to dedicated servers, not a 'net-based connection… mine was at a top-25 law school (and on active duty before that).

Instead, the problem is almost certainly a deficit in knowledge of environmental science, which is only exacerbated by the selection mechanisms for judges: Elections and partisan appointment systems, combined with the outright hostility of both law schools and the profession for even so much science background as a decades-out-of-date bachelor's degree in physics (let alone geology or biology!). Let's translate this hypothetical into a university setting — and the unstated consequences — so that you can see how ridiculous it is.

Hypothetical 2' Dean Wormser, a classical historian, knows that he is going to have to make tenure decisions for the science faculty and allocate resources among science and nonscience faculty (not to mention the football team and homecoming parade). He is unfamiliar with the science faculty's work and budgetary concerns. Before the first budget meeting and/or tenure decision, the Dean reads online background information including articles, including a number of very popular websites and social media sources that do not originate with academics in the respective fields — perhaps some not-academically-curated wikis and commercial equivalents of WebMD. Does this violate any obvious duty of care toward the faculty members in question?

Well, if reading articles online will suffice as a substitute for a bachelor's degree (or better) in the discipline, and laboratory experience is irrelevant (in which case, we can do away with those expensive new buildings! good!), I suppose that might work.

It's not realistic to expect every judge to have sufficient factual/doctrinal knowledge to handle every case arising from every set of facts. However, the profession's structure virtually ensures that no other person inside the courthouse can even assist in determining the credibility and currency of general information sought for self-education. Curiosity is a good thing; curiosity without rigor or context, even by the highly intelligent, leads to believing anti-vaccination hysteria, flat-earth pronouncements, incrutableintelligent design, trickle-down economics, characterization of electronic communications as a series of tubes, and that "parody" inherently has more free-speech value than "satire." Opinion 478 would discourage reference to this article once a judge has actually been assigned a case, let alone the underlying resource, and by itself that exposes a substantial intellectual deficit in the opinion.

There's a variation on Hypothetical 2 that further demonstrates the failure of Formal Opinion 478 to grapple with the real problem.

Hypothetical 2'' The judicial district in which the judge is assigned has many environmental contamination cases involving allegations that toxic chemicals have been released and have contaminated soil and groundwater. Before a case is assigned to the judge, the judge reads online background information including articles and professional journals, and begins free online prerequisites for and junior-level courses in vertebrate development and ground-water geology offered by a single university. At some point during this self-education process, the judge is assigned one of these cases. Would it violate Rule 2.9(C) of the Model Code of Judicial Conduct for the judge to complete the courses?

I am afraid that under the reasoning implicit in the remainder of Formal Opinion 478, the judge has probably crossed the line here.

If the profession, and especially the judiciary, had a broader basis of general knowledge that specifically included a reasonable proportion of members with science and engineering degrees, we'd all be less worried about the results of judges doing background research; they'd understand why perpetual-motion devices may not be patented instead of resorting to Chevron deference and taking it as administrative fiat on faith (and that's just an example that I observed a few years back while waiting my turn for oral argument on a different, copyright-related case later in the morning). Instead, the profession's emphasis on "high undergraduate grades" (more-readily achieved in small seminars that do not have a grading curve than in even relatively small lecture courses) as a screening device for better, or at least more-prestigious, law schools — and hence better original positions in the profession itself and among instructors for the profession — operates to discourage such candidates… and funnel them away from paths leading to judicial appointment/election when they are allowed in, because they are archly sidetracked as specialists in the one area that the law allows is a specialty: The patent bar.

The unstated premise of Formal Opinion 478 is that research in secondary and tertiary sources — without more, and specifically without context in scientific method, surrounding scientific principles, and understanding of data-gathering methodology and flaws — is sufficient not just for policy arguments, but for accurate and rapid decisions concerning specific matters turning on science, both factually and conceptually. Eppur si muove, you self-satisfied jerks… and you don't know why. Your failure to know why, your failure to accept that the facts must always determine the legal rule of decision and not the other way around, and your intellectual dishonesty in believing that alone among all fields of knowledge the law need never defer to another field's fundamental precepts for gathering and evaluating those facts in the first place, dwarf the Heffalumps' mere partisan failures. I don't demand that every judge randomly assigned to environmental law cases have an A.B. or M.S. in a related field — just that enough do so that there's inside-the-courthouse guidance available for colleagues, and a decent chance that the more-qualified will at least occasionally get those cases. But the egos in the profession are too bloody immense* to admit at an institutional level how much they don't know… whereas in most fields of study, that admission of how much one doesn't know is precisely what qualifies one for leadership. In short, Formal Opinion 478 is a subtle demand that judges must close their ears… not exactly what I ever want to see happen.

I give Formal Opinion 478 a C+. It answers the specific question stated, but fails to acknowledge its own context and thus represents an improper inquiry: The question presumes that the judiciary is competent in the first place to evaluate all factual material, even that to which the profession of law is hostile ab initio. It silently rejects the fundamental scientific principle that the framing of the hypothesis largely determines the outcome of the inquiry — a dizzying bit of Möbius-strip reasoning that by fiat elevates centuries of mistaken pronouncements by privileged white men of no scientific background over present knowledge.


* They are not battle stations — they are small moons. I do not claim any lack of ego, but do claim familiarity with (and respect for) enough different star systems to spot the difference.