No Heroes Here

• One of the problems with our present banking system — and more to the point, who is incentivized by our "market economy", and how, and to what extent — is that there's little or no recognition that both individual and collective interests need to be protected by and built into any self-perpetuating financial system. Failure to do so risks niche predation that ends up harming both the niche prey and the niche predators: The prey are, well, prey, and the predators lose the ability (or at least incentive) to adapt.

  Instead, we've incentivized personal beneficiaries of excess rents, Ricardian or not, to deploy part of that excess in service (whether "protection" or "expansion" is ever-changing and constantly up for debate) via noneconomic political pressure. Somewhat more imagistically, we've given dead presidents a quasivote — but only if they have an established, long-term residence. They don't get to vote if they're homeless; or in refugee status; or job-seeking; or (pardon the pun) mere renters. It's always worth asking "Cui bono?" (which this otherwise-rational-and-perceptive piece doesn't).

• Which leads us farther astray. OK, we're just following; it's critical to remember that the foundational text of the so-called "free-market economy" was written as a work of moral philosophy.

  Ewww.

  It's slightly better than racist aspiring ballerinas (who, not incidentally, would have chosen to shoot almost all other aspiring ballerinas), applying the same standards to That Inimical Book as a certain set of culture warriors would apply to other books, and the morality of trading hostage retention for electoral victory that gave us multiple variations on "but he's our bastard/dictator." It's certainly better than actually contemplating the New York Met (or the similarly-named collective of… sportscreatures and their support staffenablers?). Isn't it?

  I say again: Ewww.

• This piece on the need for VA reform seriously understates the historical problem. It goes back a century in the US, to broken government promises culminating in the Bonus Riots (in which MacArthur gave us a glimpse of the future). It goes back centuries, though.
• All of which is perhaps less embarassing than being beaten up in public by Quaker thugs. Which leads to further questions indeed regarding the political history of the Society of Friends (and Everyone Else Is an Enemy) (it helps to know how one R.M. Nixon was raised…); it's not, or at least not entirely, industrious pacifism tolerant of all alternate views.

Slowly Recovering From Daylight Savings Time

I haven't waved a machete with blood dripping from it (O+ only) at a sidewalk solicitor in more than three days. Well, ignoring the time change.

• Once again, publishers are deflecting attention from their own lack of diversity by employing outside sensitivity readers instead of:
  • Developing expertise and experience in-house that is not derived from white upper- and upper-middle-class backgrounds;
  • Realizing that the "correct" decision for a long-ago-published book that requires too much editing to make it "fashionably acceptable" today is to just continue to publish the older edition (since, through their disreputable negotiation process, they've grabbed the rights for the life of the copyright);
  • If even that risks offending too many people (because someone will almost always be offended somehow, somewhen — which is not to say that offensiveness is to be encouraged, only that it is in some sense inevitable), consider removing it from the catalog and returning the rights to the author/successor;
  • Remember that although commercial publishing is commercial, part of the First Amendment (or, in other nations, whatever passes for a freedom of speech imperative) rent (the economic concept, and whether it's Ricardian or non-Ricardian, or perhaps both, is a tough question) is that sometimes the protections of free speech have a commercial cost;
  • More than one of the above.
• "Rent" like general support for the arts — not forgetting support for the arts infrastructure, like theatres but not like TicketBastard. And perhaps not imperialistically determining that a no-context location several thousand kilometers away is the "rightful" place to display stolen merchandise. Of course, as my late friend Harlan Ellison said, they could always pay the writer — and believe me, that was the toned-down version of that rant. Or musician… leaving aside, for the moment, payment for the composers…
• But at least that's actually productive writing. It could be critical theory (which was more about getting tenure and getting promoted to full professor than it ever was about actually thinking about some of the hard questions raised by unpacking contexts and assumptions).
• One rather delicious bit of schadenfreude from the recent Silicon Valley banking issues is that neo-Falangista/antiregulation/antigovernment/cryptolibertarian Peter Thiel is one of the uninsured depositors being backstopped by the federal government.
• Over across the Pond, marginally-educated footballers like Gary Lineker and Marcus Rashford, MBE, are demonstrating that they're far more aware of the world, and willing to speak out about it, than the public-school toffs running His Majesty's Government (damn, I started typing "Her Majesty's Government" by reflex there) and their cronies installed at the BBC. Apparently, being educated at either Heathfield or Eton was insufficient to understand what professional athletes did. Bluntly, in substance both Lineker and Rashford were correct in their protests. Linekers' "mistake" was in sticking up for dirty foreigners, unlike Rashford sticking up for children; that's why Lineker suffered a "consequence" and Rashford ascended to the Queen's Birthday Honours List.
• Dear Karens' Bruncherie: Please remind your customers — especially those driving very-recently-registered Alfa Romeos (like the one who inspired this note) — that this is a residential neighborhood with lots of mass transit and not much parking. And that a narrow driveway entrance is not a parking spot, even (or especially) if the resident is out grocery shopping when your customer pulls up and blocks that driveway to enjoy the $27 omelette special (toast, hash browns, and juice extra).

Marx Brothers Policy Debates

Who are you going to believe: Me¹ or our own Eyman?² Let's talk about taxes for a moment; such as taxes on the hyperwealthy. Consider a proposed 1% tax on not $250,000 in annual income, but $250 million in financial intangible property.³ On Thursday, there was a public hearing before the [Washington] Senate Committee on Ways and Means, at which Eyman — you did read note 2, didn't you? — spewed forth:

Successful people weren’t just lucky; they worked their butts off. They took huge risks, sacrificed a lot over many years and earned their money. And the people who didn’t earn this money don’t deserve to get it from the people who did.⁴

Let's take this apart and see where we end up, shall we? (Hint: It won't be where antitax activists think it will.) In the order appearing here:

• Successful people sure as hell were lucky. They had adequate resources to be successful (even those who "drew themselves up by their bootstraps" still managed to eat). They were in an environment that allowed success (not a lot of fortunes were actually made during World War II, for example). They weren't drafted and killed in Vietnam; with extraordinarily rare exceptions, they didn't join the All Volunteer Force in the late 1980s or late 1990s and get deployed to Southwest Asia, coming back with bonus scars of all kinds. They weren't required to quit a great career at which they were successful to care for a disabled child or parent; and if they did become "caregivers," they luckily had other skills or other support in place.
• Over the years, I've rubbed elbows (seldom by choice) with the hyperwealthy more than once. A few were golddiggers — they didn't "work their butts off."⁵ The only work involved in inheriting wealth is not getting caught embezzling (or worse). I attended college with a number of the extremely wealthy, including a future tobacco heiress; she worked, but that's because she had academic ambitions.
• And speaking of "tobacco heiress," one wonders what they — or their ancestors — worked at. Consider, just about a century ago, an Italian immigrant who got very rich through a complex arbitrage scheme involving mispriced postal reply coupons… for a while, anyway. And he was far from alone. Much more recently in the news, consider the Sacklers.⁶ I suppose you could say that they all "worked hard" (although many of the Sacklers, to name one group, appeared to be largely along for the ride).
• When they weren't doing outright dubious work, there's still a significant question about what kind of work it took to acquire a quarter of a billion dollars in financial intangible assets it really was — and who did it. One can readily hypothesize that a balanced portfolio based solely upon "being an index fund" was at issue. That, however, was not implemented by Joe Multimillionaire over in the den on a PC; there was a significant team of people involved in doing the dirty/clean work. Perhaps the closest one could come is a creator in the arts; leaving aside that there probably isn't one, anywhere, whose $250 million in financial intangibles were solely the result of his/her/their own creativity, commercial exploitation of creativity is definitely a team effort — Taylor Swift has session musicians and choreographers and costume designers and roadies, too. Eyman's statement (and ideology) rather ignores the reality that the real people doing the work for these fortunes are the preexisting piles of dead presidents and the minions — not the title-holders.
• Most of the superwealthy may have taken significant risks; almost all of them, however, had backstopping that the rest of us don't have. Consider the serial entrepreneur who risks a million, goes bust; risks another million, goes bust; risks another million, goes bust; risks another million, hits the jackpot⁷ and becomes (in technical terms) an oligarch. One wonders, on further thought, about the source of those millions risked; even when they risked "almost everything they had," they had enough left to start over afterward. Let's just say that not an awful lot of entry-level workers do. More to the point, that rolls right back into "luck," doesn't it?

We'll leave aside, for the nonce, the immense, tax-supported infrastructures that the hyperrich exploit. The roads and police forces and trained/educated-in-public-schools workforces. The courts to enforce their contracts and nondisclosure agreements and protect their trade secrets. The military forces used to eject prior occupants of the land on which their ancestors' timber fortunes were founded. The key point is that these "fortunes" depend in large part on preexisting, peaceful civilized society; if more wealth is good, that rather implies that more civilized society — paid for through taxes⁸ — is rather necessary. Not less.

Meanwhile, Mr Eyman, I've seen no evidence that you've "worked" for your money; instead, it appears you've largely skimmed off contributions to your antitax organization,⁹ as found by six different judges after several distinct proceedings.² So perhaps I agree with your closing remark: People who didn't earn the money don't deserve to get it from those who did.¹⁰ In particular, that means you. In reality, those with fortunes this large didn't "do their own work": They relied upon others to "do the work."¹¹ The best way to avoid this sort of ridicule is to have a factual basis for ideological positions. Otherwise, it's just… duck soup. Canned and condensed duck soup, purchased at a big-box-store supermarket (and isn't that an interesting phenomenon), probably with artificial duck flavor… quite possibly inspired by a duck with no pants. No, the other one.

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1. With the plethora of citations, both via footnote and hyperlink, to what was actually said, ruled upon, or at issue. The title of this piece is drawn not from Fredonia, but from a line thrown away in Duck Soup (1933) and later embellished and adopted by others.
2. See, e.g., Bankruptcy court orders Eyman to pay contempt sanctions, issues payment plan in state’s campaign finance case, MSN (09 Apr 2020) (noting that sanctions relate to systematic refusal to truthfully respond in discovery matters — particularly ironic in that the underlying lawsuit was about Eyman's alleged deceptive conduct concerning various of his antitax campaigns).
3. [Washington] Senate Bill 5486 (2023–24 Session).
4. As quoted in Brett Davis, Proposed Washington wealth tax debated at Senate public hearing, The Center Square (posted 10 Mar 2023).
5. This is not gender-determined; I've run into more than a few male and same-sex golddiggers.
6. Cf. also Leverage: Redemption (Season 1, 2021) (in particular, the chillingly on-point performance by Reed Diamond).
7. At least three of the less than 700 persons estimated to be subject to this tax literally hit the jackpot: They're all major-lottery-prize winners. Apparently, standing in line to buy a lottery ticket is very hard work.
8. Compañia General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).
9. Any resemblance to the Rev. James L. White and/or other ideological political pressure groups is purely schadenfreude coincidental. Not to mention comedy worthy of the Marx Brothers.
10. Perhaps no antihero masquerading as a hero, all the while proclaiming the merits of making things All About Him, is so on-point as Milton's protagonist.
11. Consider, for example, a couple of Seattle-area tech behemoths. Uncle Jeff has, over the years, grown the Big Brazilian River from his "revolutionary idea" of a marketplace structure through warehouse workers, delivery drivers, overworked postal employees (and the business model took advantage of arbitrage in postal rates, cf. Mr Ponzi, at a time when shipping costs and warehousing-and-display costs had inverted their historical relationship), and invisible-to-the-public programming talent, and reaps the rewards of scale and superior initial position. Uncle Bill essentially abandoned programming by the early 1980s, instead directing teams of programmers and marketers. It's not that "management" and "vision" are meaningless; it's only that claiming that they are "the work" is dubious at best, in the same way as claiming that only the generals are war heroes.

Emotional Support Mice?

One of the best social media ripostes I've seen about anything, let alone about a rat infestation. In Florida. I wonder if the rats swam up the coast from Palm Beach?

• It appears now that Florida Man will be restricted to doing ridiculous culture-war things instead of, oh, shooting an alligator on his front lawn with a ghost gun six days after getting out of prison with a police cruiser parked across the street. (OK, OK, nine days. Given what they're doing to education down in Florida, that's probably enough time to forget he was a convicted felon.)
• That's probably less embarassing than the former prosecutor for five counties — largely by heredity — getting convicted of murder as part of an insurance-fraud scheme. Probably. Maybe he needed the emotional support mice.
• It's certainly less embarassing than PayPal and TicketBastard demanding social security numbers a year early. Key point: This is about transaction reporting; it's not about tax liability. Unless one is in the business of, say, selling too-small children's clothing or one of the few Taylor Swift tickets that actually got delivered to a paying, non-bot customer, those occasional sales are not recognized as income. If you get too many such notice, there might be later questions, but the mere fact of a 1099K does not create tax liability. No doubt there will be shrieking and "your access to this service will be cut off if you don't provide a W-9 immediately" and gnashing and wailing… and continued money-laundering that won't be reported…
• An accusation of copyright infringement doesn't mean liability for the full measure of statutory damages. Even when later found liable.

  At least so far, it doesn't look like the "adult entertainment" industry has chosen to inundate the Claims Board. Maybe my prediction that would happen will prove incorrect; more likely, I'll just have been too quick off the mark. Perhaps all those "Russian porn sites" are having trouble asserting their claims in the US due to the Ukraine conflict.

• One wonders, though, whether a violinist's discreetly rubbed trousers are due to the recent scampering of emotional support mice. More likely, it was the rats from the Jaguars' locker room returning to their more-usual haunts.

Avoiding Expiration Link Sausage Platter

Oh, no, it's the end of the month and the "use before" date on some of these ingredients is today… carefully ignoring the actual meaning of "use before" dates for items going into sausages…

• For once, my musings on antitrust and monopolies involve, well, Monopoly™. I have not seen the underlying documentary, but the article completely fails to engage with the most-disturbing aspect of the game's history: Persistent misuse and abuse of those monopolies actually enshrined in law, and the spillover effects into other similar areas due to "precedent" (whether legal or otherwise). The abusive anticompetitive tactics protecting what Parker Bros. saw as its rentsrights in Monopoly™ (irony alert! irony alert! irony alert!) are ancestors of the abusive anticompetitive tactics employed by Dr. Seuss Enterprises and media-tie-in fiction and products — and that's just an easy example. Rather obviously, the rules for Free Parking have changed, pretty much along with the disappearance of free parking in urban areas.
• Which rather disturbingly segues (Segways?) into a forest-for-trees-for-leaves analysis of a certain recent "triumph" of antitrust law in publishing. Maybe a look at the purpose and composition of the Company of Stationers, and the intent and mechanisms of the 1566 Licensing Act, might be helpful… especially given Florida Man. Hint: Antitrust law isn't about "unlawful" nearly so much as it is about "abuse of power."
• Abuse of power is a problem no matter where it occurs, but particularly in the last stop before bloodshed: The judiciary.¹ Mr Frazier is rather late to the party, but welcome to attend and partake of the cocktail weenies.

  Once upon a time (last century), a judicial election in downstate Illinois demonstrated the problem rather directly. An arch-conservative candidate for an intermediate appellate court position smeared his centrist opponent's record as being "soft on crime" because that opponent — as a result of recent state Supreme Court rulings — had "freed" several low-level-property-crime offenders (who "just happened" to be Black, although that was certainly not part of the ad campaign) when sitting as a trial judge. Keep in mind that this appellate district is and was… demographically distinct from Chicago. What does that kind of judicial campaign say to those seeking justice, whether from that candidate or any other? And the less said about a notorious campaign for the state's highest court and its fallout, the better.²

• From judicial chicanery to scientific hoaxes isn't really that great a distance. If one really wanted to find a truly British evolution "missing link," one should start with the House of Lords and its membership… even more so when Piltdown Man was "current," because the institution and predominance of "life peers" has considerably diversified the gene pool.
• And then there's really missing the point. Much as I hate to agree with anything coming from the Pacific Legal Foundation, Messrs Blevins and Fa have a point regarding ineptly conceived preference programs. The real problem — and it's one that the PLF has historically evaded considering — is "What would something better look like?" Here we get into difficult questions regarding the historical misconduct of governmental actors (individual and institutional), and even worse private actors, on those very dimensions.

  Perhaps Messrs Blevins and Fa aren't old enough to have observed the "returning veterans" problem in the 1970s — a problem that, thanks to that very same historical misconduct, was felt… unevenly — and the inept tinkering that created today's § 8(a) programs. Fundamentally, the problem is "what constitutes a disadvantage that this program is authorized to consider"? And that is a constantly-moving target; in this instance, all too literally. The obvious, better solution would be for the private sector to establish quickly-adapting compensatory mechanisms so that we don't have to even worry about government doing so… which is the exact opposite of our historical experience, and indeed the exact opposite of what most allies of the PLF actually do. The private sector has always been more discriminatory; redlining didn't start with units of government, but with banks and proto-real-estate brokers and proto-developers. I'm afraid that the credibility of the "absolute freedom to choose" quasilibertarianism, as reflected here, is rather seriously at odds with reality. In a universe governed by the Second Law of Thermodynamics, every choice has a cost — including ideological ones. (I'll leave aside for the moment how few lawyers, especially in the judicial branch and at the PLF, are themselves non-JAG veterans even without verified disabilities… but only long enough to let them self-righteously proclaim allegiance and respect, and maybe granting double green stamps, before moving on to Important Things.)

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1. I continue to have grave doubts on whether judicial elections are consistent with "a Republican Form of Government." If one accepts the "historical practice" meme of Minor (which, ironically, would be most consistent with conservative-tinged "original public meaning" theories based upon the flawed, self-selectedly incomplete data sets used to discern that OPM) then one wouldn't even think of electing judges: Nobody elected judges in the late 18th century, Over There or Over Here.
2. disclosure: Due to my own experiences litigating (mostly indirectly) against the insurer named in the article — and years before that, dealing with fallout for those under my command who had to deal with that insurer — I make no pretense of being unbiased: The nicest things I have to say about the insurer, its own biases, its law firms, and the various tactics employed in the very narrow exposures I had would violate my ISP's terms of service, and would definitely not be acceptable in court. And it's not even the worst big insurance-industry actor in the state. That said, I have never met nor had a matter before a court on which the elected judge named in that article was in service; my factual foundation and ire are directed at the campaign contributor and the campaign system.

Family Law

<SATIRE>

So an abusive, unfaithful woman wants a divorce? And she expects to keep the kids, even after a determination of… parental fitness (no doubt by some biased "expert" with too much education to satisfy her).

So, Ms Greene: This will be even faster than a Haitian divorce (just short of six minutes). I'll gladly throw you into the street with nothing but the clothes you're wearing, and it's really easy.

I divorce you.

I divorce you.

أنا أطلقك

There. All done (less than one minute). Although I now feel an impulse to request the filing of a protective order, especially since you suggested arming your minions already. But remember: Divorce is personal. They're still my kids that I took an oath to defend (however much parenting I'm going to have to give them once I get them away from you).

Why are you still standing there? Get out of this House: I am feeling unwontedly merciful at the moment, but if you don't get moving I just might suggest imposing the Code of Hammurabi's consequences for unfaithful women. Can't get much more foundational and original than that!

</SATIRE>

n.b. Every bit of cultural and other insensitivity, and wrenching from context, was chosen with malice aforethought to mirror that… individual's attitude and rhetoric spewed toward anyone who disagrees with her. The operative word in determining the original public meaning of "Lost Cause" is the first one — a word apparently not in Greene's vocabulary, given her rhetoric on the 2020 election results.

I sort of wish it was that easy. But it's not. It's supposed to be hard… or we really do end up with theocracy. It's worth remembering that theocracy has seldom turned out all that well for those actually pushing for it — not even the one theocracy that most Americans can name and agree to dislike. (Naturally, only most… which is part of my point; and part of why theocracy is the real enemy of democracy, because "mere" authoritarianism has a tendency to lose to actual, nontheocratic democratic movements.)

Holiday Bonus Snark

Bonus snark is thoroughly merited on this Presidents' Day — a holiday that celebrates men (all men so far) who were at best deeply flawed. Founding Father Washington was a slaveholder; Hero of the Union Lincoln suspended the right of habeas corpus for convenience (without much, if any, factual basis supporting any need); the Ad[d]ams family embodied precisely the kind of nepotism that the "no titles of nobility" clause was supposed to prohibit; and so on. So today, there's bonus snark for the famed and powerful (but how would you be able to tell what's beyond the norm on this blawg?).

• So, according to a headline at CNN, Tesla is about to grant "an absolutely monster package for [techbro crush El0n] Mu5k" — which rather fits, given that he's an absolute monster. On one hand, the statute and regulation explicitly label anything that is a mandatory service a "recall"; it's been that way for decades; and you don't get to object to the name because it sounds bad. And it's a "recall" (vastly more serious than a mere "over-the-air software update"¹) precisely because it requires one-to-one correspondence and verification of each instance; if there's any deceptive term here, it's "full self-driving" as pushed by Tesla. On the other hand, the notice objects that

  The FSD Beta system may allow the vehicle to act unsafe around intersections, such as traveling straight through an intersection while in a turn-only lane, entering a stop sign-controlled intersection without coming to a complete stop, or proceeding into an intersection during a steady yellow traffic signal without due caution.

  which sounds like standard California driving behavior to me. Remind me where Tesla has done all of its testing and development work again? Mr Mu5k, I not-so-respectfully suggest perusing a middling-old experimental psychology article (abstract, $wall for article) concerning expertise in driving, public safety, regulatory law… or public relations with those who don't already share your preference for pineapple-durian Kool-Aid^® (the new kewl mixer!).

• But that's only slightly — marginally, measured with a micrometer — more ridiculous than yet another membership scheme for essential purchases. Essential in my household, anyway: Books. Wait a minute — doesn't the Big Brazilian River already have such a membership system in place? Yes. Yes it does, with its Amazon Prime system. So big brick-and-mortar rival Barnes & Noble is establishing its own, new-and-improved membership system, for a lower annual fee. I guess that makes it sub-Prime, doesn't it? (thankyouthankyou I'll be here all week)

  Which I won't be joining any time soon. Bluntly, Barnes & Noble has historically been one of the biggest rationales/props for racist and sexist book cover prominence. The particular kind of market retrenchment implicit in this sort of membership program will just make things worse — as if they could get worse than a flagship-status store's new crime/mystery display with not one non-Caucasian face on the 24 covers displayed. That was last month.

  Which returns to the fundamental problem with B&N: It's in a New York state of mind. But that state of mind doesn't retain much credibility once one escapes into civilization, west of the Hudson. It most particularly doesn't retain much credibility for either existing heavy readers without convenient access to a good library or independent book source, whether that's their own/their parents'/their school's/their communities — or for future generations thereof. Which, disproportionately, means the kind of people who aren't appearing on those book covers.

• It's a court holiday today, so I've got a few moments — the few moments I spend every court day pondering recent appellate opinions — to ponder some fundamental flaws in how we get those opinions. It's much the same reason that news dissemination and reporting is fundamentally flawed, that public broadcasting has gone from the frogs to the cockroaches, that problematic, tunnel-visioned assertions of authority in art criticism fail to see their infinite reflexiveness, and even well-intentioned proposals to reduce government overclassification are, in my late friend Harlan's terminology, bugfuck crazy: A profit motive is often (not always!) a necessary impetus for many (not all!) private actors, but it is never a sufficient motive for the common good. One always hopes for significant overlap, but the pretense that they are congruent sets requires one to forget the important qualifier to "self-interest": "enlightened." On the other hand, given recent efforts to turn back the Enlightenment entirely in favor of orthodoxy-enforcing theocracy (and the irony of that source is itself worthy of consideration), "bugfuck crazy" is almost certainly an understatement.

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1. Like the two different Karens who've parked their Teslas out front today and had their cars banging on my router while they relaxed at Karens' Bruncherie; the cars demanded free internet access, repeatedly, requiring me to reboot the router three times to deal with it… quite possibly for that very upgrade. (Decoding MAC addresses is trivial.) Karen #2 needs just a little bit more peroxide to be convincing, though (Karen #1 is hopeless).

Slow Learners

Eighty-one years ago today — just about ten miles from where I'm writing this — America demonstrated that it's a nation of slow learners. On 19 Feb 1942, jackbooted thugs US government agents visited the sins of their fathers (and grandfathers) on residents of Bainbridge Island, Washington, in response to an executive order signed by President Roosevelt.

That sin was one of ancestry: Those fathers (and grandfathers) had been born — themselves involuntarily — in Japan. They looked different. They often didn't speak fluent, local-tinged English (although many of them could say "Puyallup" correctly, but none of those in DC who ordered their internment could). Apparently, we had learned little from eighty years before that; and would further demonstrate that inability to learn sixty and seventy-five years later, no matter the utterly inadequate, self-serving rhetoric that came decades after the underlying facts had been refuted.

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.

Korematsu III, 584 F.Supp. 1406, 1419 (N.D. Cal. 1984) (granting writ of coram nobis on ground of admitted prosecutorial misconduct).

That the elderly have as a group ("on average") lost some cognitive function perhaps explains a bit about the two executive orders described above: EO9066 came from the pen of a sixty-year-old survivor of polio, EO13769 came from the pen of a seventy-one-year-old narcissistic sociopath. Perhaps this is some facial justification for cognitive tests for elderly politicians <SARCASM> (although, ironically, these two individuals would have been outside the suggested scope, as would this one and this one, so perhaps any such test should be applied to all sitting and aspiring constitutional officers — notwithstanding life tenure — including the particular proponent of such testing). </SARCASM>¹ But then, EO9066 continued a tradition relevant to my own family history… "slow learners" indeed, although the irony that learning a language is marginally more relevant to potential "disloyalty" concerns than is the identity of one's ancestors is rather bitter. And directly applicable to the proponent of those cognitive function tests.

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1. Cf. Ursula K. Le Guin, "The Diary of the Rose" (1976) and "SQ" (1978), both reprinted in The Compass Rose (1982). We could probably do worse than having a "personal assistant" and a janitor in charge; on all evidence, we have.

I Saw Your Lips Move, Dave

I'll be somewhat worried if one of the various not-ready-for-the-lab-let-alone-the-public neural-response-nets masquerading as "chat AIs" informs me that my AE35 unit has a 100% chance of failure in the next 24 hours (no doubt in slightly more stilted language, like the original). Worried, but entirely unsurprised. I will continue to maintain the greatest enthusiasm and confidence in this blawg's mission… but I won't ask it to write "a criticism of critical race theory in elementary education in the style of HAL–9000."

• Here's something new — and my reaction definitely oscillates between schadenfreude and complete disgust: The Heffalumps are engaging in handbags at two paces while simultaneously misappropriating memes on multiple dimensions (without bothering to discern what they're really associationally appropriating: outright bigotry¹). This catfight between two of the most anti-thought, pro-conformity bullshit artists in American politics has far more levels of idiocy ripe for satire than I can list in a blawg entry (let alone stuff into a single sausage casing), so I'll just leave with this: Ms Haley doesn't just wear heels, she is one;² and the peroxide appears to have percolated from Ms Greene's roots into her central nervous system. Hey, they started the offensive use of offensive stereotypes, I'm just using metaphors they might understand!
• Which sort of beats the self-defeating aspect of election denial without factual support (pdf) that masks authoritarian theocrats misusing the mechanisms of democracy. This is not to say that there are never any problems with election results — I did, after all, live in a historical rotten borough (albeit not that one) and later in Chicago… and I've seen much, much worse overseas. But the drumbeat of election denial coming from a single, narrow viewpoint axis reveals the theocratic mindset at its core: "It's impossible that the voters wouldn't prefer me and my viewpoint to that scum, no matter what the ballots say!"

  This is more than garden-variety narcissism. It's outright rejection of the core value of democracy: Dissent from orthodoxy. (That's what scared eighteenth-century Parliament more than anything else about the uppity Colonies — it wasn't "objection to taxes," but "objection to taxes imposed after active, structurally-reinforced suppression of opposing views," and that's putting it politely.) Facts don't matter — only ideological allegiance does. Blind, unthinking, herd-instinct-driven allegiance. That is, blind faith.

• Which is disturbingly parallel to the not-quite-within-the-bounds-of-the-classical-definition abuse of authority when eminent, arguably overrated scientists in field x pontificate endlessly in incompatible field y; worse yet, when y also happens to have distinct political dimensions infected with inherently unreliable "supporting data" and that y isn't even amenable to the scientific method but instead requires either or both of "value judgments" and "response prioritization." This is especially annoying when they're waving that Nobel Prize from a narrow field about as an all-purpose Grant of Authority in Everything, like this guy and this guy and this other guy. (And those are just objectively-irrefutable dead examples; there are plenty of living ones, particularly some of those associated with the not-Nobel awarded for economics…)
• OK, how about something a little bit less controversial, like musings on NFT copyright by a law professor with a science degree (extraordinarily rare in itself) who has kept up in his field (even rarer) and still manages to understate things without being inaccurate. His closing quote from Douglas Adams exposes another failure mode: What if the purported impossibility was not, in fact, impossible at all — just impracticable at the moment? Perhaps a historical example will suffice: Once upon a time, there was another reputedly unbreakable ciphering system (and the blockchain is merely a cipher), but cousin Fred refuted that… and there's public evidence that even-more-theoretically-unbreakable ciphers have been very-quietly-at-the-time broken for decades before revelation. (But don't dive down the infinitely reflexive rabbit hole of wondering about the self-interest of that last source too much…)

  I didn't do too well on the "less controversial" there, did I?

• Let's try that "less controversial" again, shall we? How about movies ($wall) and musicianship? Both are marked by ultimate evaluations made (and indeed dominated) by people who are neither practitioners nor context-aware, scholarly (or at least scholarly-trained) critics/commentators/instructors; remember, the "executives" and "public relations" branches of AMPAS are historically the third- and fifth-largest ones (slightly-out-of-date summary)… and in music — not just classical — it's if anything worse.³

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1. That particular song isn't directly on point, but its associations are. I despise that entire series of films. Ponder, for just a moment, the jingoistic "real 'murikans against the world" bullshit in the context of invading Grenada and support for the Contras. You'll need longer to ponder them in the context of twelve-step programs — not to mention the fundamental flaws in twelve-step programs — and "insanity" being defined as endless repetition being expected to lead to a different result. We'll leave aside the reality of elite athletic competition (indeed, elite any competition) and the relationship between physical/skill training and mental training. The less said about the parading stereotypes, the better. Bluntly, Philadelphia deserves better than being associated with this fourth-rate claptrap.
2. Her rhetoric (both official and otherwise) as an "ambassador" and otherwise betrays her true allegiance: Herself. Very much like her former boss. And very much like the designated bad guys in pro wrestling (or, for that matter, Rocky movies; I wonder if she knows she's the villain-to-be-put-down yet?)… with just about as much relationship to reality.
3. Just say "A&R" (or, better yet, don't).

State of Disunion

Listen, lady, your party had a response coming up in an hour, and this ain't the Bronx. Now that I think about it, even the most vociferous residents of the Bronx don't advertise their arsenals and threaten those they disagree with.

• As I remarked not long past, I will happily disrespect the state-level Jackass party leaders in rural-dominated Iowa and pasty-white New Hampshire if the "first" primary moves to a slightly-less-unrepresentative state like South Carolina. Iowa gave us Carter, and made Clinton respectable. New Hampshire fell for the Canuck letter and threw the election to Nixon. And I'm not forgiving the antiintellectual "plain folks" bullshit all that quickly, either.

  This is just tweaking an immensely flawed, self-defeating process that serves not the electorate but the party bosses. In that sense, and for that reason, I'm somewhere between schadenfreude and utter apathy.

• At least the Iowa and New Hampshire back-room dealmakers aren't failing to outlast a head of lettuce by blaming a (completely mythical) "left-wing economic establishment" for their failings. You moron — admittedly, that's rather redundant with "Tory Party Leader" — there is no "left-wing economic establishment" in England. There are a few slightly-left-of-center economists, but the economic establishment is solidly right of center (if, perhaps, to the left of your backroom bosses, Ms Truss); Maggie and her henchcreatures and Brexit ensured that. Ms Truss would have been better off blaming creatures under her bed at Whitehall — they're much more believable (and probably scarier, even to inherited wealth) than a "left-wing economic establishment."
• Here's a fascinating bit of obtuseness on, well, "free exercise" that — at least on its face — has nothing to do with reproductive rights. A Ukrainian cathedral in Chicago was vandalized, and the dean doesn’t know who would want to target the cathedral. Well, let me posit a few possibilities:
  • There's a substantial Russian population in Chicago, and there's this little conflict ongoing between Russia and Ukraine at present, and the Ukrainian Orthodox Church has been a significant center of resistance against the Muscovite Soviet Russian invasion (which is what it is, no matter what it's also called as a matter of political expediency).
  • Some people just vandalize things. Maybe its individuals; maybe it's one or more gangs asserting territorial primacy.
  • Maybe someone really has a personal grudge against this church, or all churches; calling a church "a place of peace" doesn't always reflect reality.
  • Maybe it was a violent newly-unemployed architecture critic.

  It never ceases to disappoint me when people in positions of power or authority presume that because their own self-image is favorable, everyone else must hold exactly the same views and must accept exactly the same symbolic meaning of their position. (I'm disappointed a lot.) The darker variant is the "Ugly American" problem… and the broader "colonial master/overseer" problem. And this certainly does apply to religious power and religious authority — just ponder being a non-christian in 1980s Oklahoma City (it wasn't a lot of fun).

  So I find Koranda's puzzlement itself rather puzzling… but, in many ways, entirely expected.

• But that's not nearly as coffee-snorting, or keyboard-endangering, as the thought of a "cancel culture" in Big Law. If there is a cancel culture in Big Law, it's aimed at atheists and veterans! I know the firms identified in Mr Willis's response to the claptrap (Kirkland & Ellis; Hogan Lovells; in a photo, Jones Day) rather well from crossing swords with them on more than one occasion, and having to pick up the pieces from their prior work even more often. Mr Willis's hypothetical regarding a law firm defending a bank's redlining practices is just a little bit too on the nose regarding one of them…
• That's almost as disunified, even disloyal, as chickenhawks (who never served) legislating against "wokeness" in the military. Frankly, I'd rather have a military that's too woke than somnabulant (even more than naming them after Confederates, these guys were almost uniformly losers)… and unlike those chickenhawks, I did serve and have an inkling of why a "wokeness" campaign in the military would be a good thing, if that is what it had (and it doesn't).

Varieties of Antisemitism

So, in the first stroke of political correctness in the New McCarthyism, Ilhan Omar has been removed from the House Foreign Affairs Committee because remarks that she apologized for almost immediately purportedly demonstrate antisemitism. At the same time, McCarthy has thrown two previously-serving Democrats off the Intelligence Committee as purported "security risks" (when everyone watching agrees it's because they both adopted not just rhetoric, but actions, declaring the unfitness for office of the assigned resident at 1600 Pennsylvania Avenue from 20 Jan 2017 through 20 Jan 2021).

Fine. So he's a vindictive, hypocritical jerk. That's nothing we didn't already know, and he's got a lot of company in the House (on personal knowledge at least 29 at present, and probably more). But perhaps some sauce for the gander might be appropriate; consider the antisemitic implications of a member of the House Oversight Committee who declares that that US "must" have a Christian government, controlled by the church (specifically meaning conservative evangelical Protestantism) — which rather definitely leaves all Semitic peoples, both Jewish and Muslim, out of the conversation. In doing so, she wrongly claims that separation of church and state comes only from a nonofficial 1802 letter by Thomas Jefferson… while ignoring both the First Amendment's prohibition on "establishment of religion" and, more to the point, in the core of the document:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

U.S. Const. Art. VI cl. 3 (emphasis added). This predates Jefferson's letter by fifteen years, and That Representative swore to support and defend it with her oath of office. No doubt it was like a consumer contract — one that she didn't read before getting on with important things like using her new made-in-China smartphone and committing abuse of power through Christian Nationalism (which by its very nature is antisemitic… however aligned it is, in the political present, with one or more theocratic governments in the Levant).

This isn't "whataboutism" — it's a demand that the same standards of "danger" be employed regardless of factional preferences. One wonders what will happen to McCarthy Junior's own committee assignments when the Democrats next take the Speakership (which, after last month's follies, may not require a majority… especially if an odd number of actual independents were to be elected… and wouldn't that be fun!).

QWERTY-Spiced Link Sausage Platter

Hopefully, a working keyboard means fewer typos… But why don't I rely on spellcheck? Because it's wrong more often than I make typos!

• Yet another meaningless survey on trustworthiness of "professions" is both disturbingly revealing-but-predictable and utterly worthless. It's revealing-but-predictable in that (a) many of the job categories listed are not "professions" (no minimum education, no licensure/regulation, no self-governance, no ability to exclude nonmembers from performing those functions) and (b) the categories are so broad that some of their very names ("telemarketer"?????) predict results. And it's utterly worthless because it implies that "trustworthiness within the confines of that job" has a high correlation with "trustworthiness on other topics." Consider, for the moment, a certain recent candidate for Senate "from" the Commonwealth of Pennsylvania… a medical professional.
• Along with that distrust of telemarketers come — rather chicken-and-eggish — questions about their competence. And this being The Economist, one must wonder about the definition of "the young" given generally-expanding lifespans in industrialized nations; consider that the so-called "18–34 demographic" has maintained those numeric boundaries since the early 1970s, and that as far as marketers and advertisers are concerned anyone over 54 should be offered prune juice and not concert tickets. (Really, now: Has anyone in the last 20 years actually looked at the audience at a concert given by That Joisey Boy? TicketBastard wouldn't dare mess up ticketing for one of his tours…)
• Speaking of musical amateurs — as in "not credentialled," as distinct from "not worthy of being paid for their efforts" — consider the rise of purported "professionalism" in classical music ($wall). Rather, consider the implications in suppression of savants, part-timers, and others who earn their living doing something other than repetitive playing of music for paying audiences. Consider, too, the implications in the rise of the MFA as a "prerequisite" to "serious literature."

  And perhaps worst of all, consider the relevance of the actual credentials to actual talent and actual performance… but not too hard, the ghost of Miles Davis might have something to say about it. Or you could just consider how the politics involved in the credentialling process — especially in "classical music" during the last half of the twentieth century — actively suppressed both creativity and talent, and established a dependency-and-enforced-scarcity environment that didn't just tolerate, but actively encouraged, what we now call "grooming" (and didn't so label it in the 70s). Perhaps not, though; that might lead to questions about MFA and similar programs, and we can't have that because it would implicate denizens, beneficiaries, and such of Wall Street. And, perhaps, to doing the math (intentional foreshadowing for the end of this platter).

• Those denizens — especially after they retire — are definitely a problem. We'll leave aside any questions of exactly who, in exactly what demographic, is benefiting from the lakes and golf courses… and whose voices are being diminished. "Dead hand control" via over-a-century-old water allocations indeed…
• Speaking of dead-hand-favoring law, consider how the Ukraine conflict further exposes problems with UK libel law. For all of the other problems it causes, guys, the Yankee¹ innovation of the First Amendment, and its influence on libel law (encouraged by the eighteenth-century upper-class-twit idiocy of His Majesty's jurists in the Colonies), is a better paradigm. Get over your not-invented-here-itis and adopt it. It's okay to admit that you've learned something valuable from the upstart former colonists who revolted against your utterly corrupt ruling class two and a half centuries ago.
• Then there are the joys and problems of polymaths who don't recognize the limits of their capabilities and basic assumptions. (n.b. I had more than one matter before The Poz, both acknowledged/with a filed appearance and otherwise; I'm separating this sausage from that rather different "dining experience" — and menu.) On one hand, Judge Posner recognized the fundamental duplicity, even overt dishonesty, of the Doyle estate and legalized loan sharks, and wrote directly and entertainingly about it — one of those times that "the majesty of the law" needs to be a little less majestic. On the other hand, Judge/Professor Posner's greatest weakness was not in attempting to apply his own rather narrow academic expertise outside his field, but with his failure to accept that sometimes others in the other fields had either already considered and rejected those viewpoints or that those viewpoints were self-defeating. It's one thing entirely to focus on a literary estate's business model, and its implications in a general sense for "creativity"; it's another entirely to impose a particular perspective on what literary product reveals (or doesn't) about creative process on other aspects of "law and creativity." Much as I admire the entirely-deserved smackdown of the Doyle estate, the various obiter dicta statements in which Posner tries to establish a "literary theory of copyright originality"… fail… and have been misused elsewhere ever since. He was perhaps led astray by rather desperate lawyering, but that's no excuse for ignoring Bleistein's all-too-prescient imprecation well over a century past:

  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. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights.

  But limits to competence do not fit with an ambition to be a modern-day Renaissance man. In this, Posner was/is far from the worst (or even most prominent)… problem child. This is not to say (see the sausage above!) that formal credentials are either necessary or sufficient. I may not be able to fully define "unconvincing literary analysis of originality and derivative works" — but I know it when I see it, as distinct from "knowing" a fully-convincing such analysis; my ego isn't that big, especially for art forms avowedly outside my competence and appreciation.

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1. My examination of the Founders' records was incomplete when I moved away from a good research library, and I've been unable to resume those efforts. When I was working on this about 15 years ago, though, it was notable — but not statistically validated, not a complete study — how much of the well-known pro-First-Amendment commentary prior to its adoption originated north of the Mason-Dixon line.