16 April 2017


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

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

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

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

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

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

12 April 2017

Link Sausages Old Enough to Vote

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

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

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

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

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

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

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

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

31 March 2017

An Annoyance in Flyover Country

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

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

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

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

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

Yeah, that really helps everyone involved.

29 March 2017

Remembrances of Link Sausages Past

I'm afraid that the smells that triggered these memories wafted up from the garbage disposal…

  • Much of the media now is making a big deal of the political correctness being imposed by the Drumpf Administration on all of its hires, as if this is somehow news. The latest example is a Pentagon-sponsored think tank whose prospective head appears to have been forced away because he — a registered Heffalump — opposed Drumpf's campaign. The real problem is that this isn't news. For those with long memories and who were "inside," watching the "restaffing" at the military academies and postgraduate schools in the 1980s was disheartening. With slightly shorter memories, the rush to convert appointed positions to civil-service positions under George II (and thereby provide a form of "tenure") was equally distasteful. With only a medium-term memory, one can recall the more-recent overt politicization of attorney hiring under George III.
  • And then there's First Brexit, triggered today. With only a moderately long memory, the breakup of Yugoslavia and its consequences comes to mind. What, you think that's excessive? Maybe, maybe not: As a reaction to this version of Brexit, Scotland may clamor to vote again on deunionization (in USian terms, "secession of the state," which should bring further chills given the poor state of race relations in the center of the Isle of Britain).

    Second Brexit, however, remains a historical fact (and perhaps an inevitable one).

  • A major publisher is yet again caught underpaying authors under even the publisher's own abusive contracts (I've been involved in some contract negotiations with Pearson's educational imprints, and "abusive" is the polite-for-public-consumption term I've chosen to use here as a general comment without implying that I know what's in these particular contracts). The reason this sort of story is not more common in the US is simple: Because authors are legally independent contractors, collective action in anything except actual litigation violates antitrust law, because it would be a "combination in restraint of trade." Now throw in confidentiality clauses in contracts and the fact that a few terms are individually negotiated, making a class proceeding much more difficult...
  • Then there's the problem of physical appropriation of cultural artifacts, and the issue that this mock trial did not (and could not) engage with: What if the "meaning" of these artifacts has been irrevocably altered by the fact of the earlier removal? More to the point, what if the earlier removal is what gives them continuing meaning at all, given the changes to their context since? And what if Judge Posner's concern at celebrating a "slaveocracy" is something that we should also apply to, say, the Louvre's collection?

21 March 2017

The Unanticipated Return of Footnote 4

American law has an extensive history of burying significant disclaimers and complications that don't quite need to be decided immediately in footnotes. Perhaps the most notorious in all of American law is footnote 4 of Carolene Products, which is arguably at the core of every aspect of modern economic legislation... and, sadly, of far too much legislative discrimination and other misconduct.

The Ninth Circuit today did its best to provide a worthy successor. It may have succeeded — but will most likely have done so if it forces Congress to act.

4. The Copyright Office is housed within the Library of Congress, and it is not clear whether the Library of Congress is part of the executive or legislative branch. Compare U.S. v. Brooks, 945 F. Supp. 830, 834 (E.D. Pa. 1996) (“[T]he Copyright Office is part of the legislative branch.”), with Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1341–42 (D.C. Cir. 2012) (discussing why the Library of Congress “is undoubtedly a ‘component of the Executive Branch’”). If the Library of Congress is part of the legislative branch, then the Librarian’s “power to appoint all of the officers who execute the copyright laws” may run afoul of the Appointments Clause of the Constitution. See John Duffy et al., Copyright’s Constitutional Chameleon, Concurring Opinions (May 17, 2013), https://concurringopinions.com/archives/2013/05/copyrights-constitutional-chameleon.html#more-74811.

Fox TV Stations, Inc. v. Aereokiller, LLC, No. [20]15–56420 (9th Cir. 21 Mar 2017), slip op. at 21 n.4 (PDF). This footnote calls into question the validity of virtually everything that has been done under the (purported) authority of the Register of Copyright since, oh, ever, thanks to the magic of the Appointment Clause. This clause was in the news today due to other legal mischief (PDF)… and legislative misconduct.

Frankly, I'm not all that sure that it would be such a bad thing to call the Register's purported "rulemakings" and other discretionary acts into question. The Copyright Office is a captured agency; it's just that the captors are the transferee/distributor parts of the entertainment industry, whose interests are not aligned with the actual creators of original works. And even more than most captured agencies, the Copyright Office has no incentive whatsoever to change: There's not nearly as much money available working for the creators (trust me on this!). Only a fundamental structural change can create an incentive to escape, and merely declaring an escape doesn't work in the medium (or even short) term: It requires a fundamental change in incentives at all levels of the organization.

* * *

And so, turning to the substance…

The Ninth Circuit ruled — rather unsurprisingly — that Aereo-like distribution-channel-repurposers do not qualify as "cable providers" under § 111 of the Copyright Act. This matters because it is not an infringement to redistribute over-the-air broadcasts on a cable TV network — if one qualifies, and the definitions matter. This fight was actually over the definitions, and the Ninth Circuit ended up deferring to the definition offered by the Register of Copyright (which, unlike so much coming from the Copyright Office, has been pretty consistent over the years, even in the face of changing technology and economic incentives).

The "Aereokiller" system took those over-the-air broadcasts and redistributed them not with a local cable-TV signal (presumably for the benefit of customers in rural and sightline-restricted areas who could not get a clear broadcast signal… based on 1974ish concepts of what is necessary for a clear broadcast signal, but that's for another time), but with an internet subscription. This is a three-element change in distribution channel, which is at least one too many for either the court or the Copyright Office:

  • It is not local. Both the court and the Copyright Office emphasized that § 111 is "about" ensuring access to local broadcast programs of local interest, whether that's regional sports broadcasts, public affairs, or whatever (but without mentioning the nature of the content in their respective directives).
  • It is not for the same form/format as the original broadcast. Although both the court and the Copyright Office are less than obvious about this, there remains a distinction between "passive viewing at home" and "recordable, mobile, editable" in tension with Sony and the Home Audio Recording Act of 1992. One must read between the lines — such as the paragraph in the court's slip opinion spread across pages 12 and 13, rejecting full "technology agnosticism" as entirely consistent with the statute — to see this… which, I suppose, leads directly into the third change, which is truly silent.
  • It provides a complete revenue free ride for the repurposing service, which provides exactly no financial benefit (or other benefit from the exclusive rights provided by copyright) to the copyright holder — or, as relevant here, the holder's licensee broadcasters/distributors (regardless of whether it's a true "broadcast" origin).

The Copyright Office — being an agency captured by the licensee broadcasters/distributors and their non-TV counterparts — is admittedly stuck in the middle. Regardless of the agency capture, the Copyright Office is charged with administering a constitutionally-approved monopoly in the face of centuries of suspicion of monopolies. That's the real subtext here: That these repurposing "services" are simultaneously attacking the holder's/licensee's rights established in that monopoly (a loser, given the constitutional imperatives) and the perceived excessive fees charged by "big media" for participating in that marketplace with even the purest of intentions… and there's very little pure in these intentions, only a desire to avoid paying the (established, often unfair) going rate.

* * *

What I find more interesting about this footnote 4 is that it may provide a lever to chip away at some of the Copyright Office's improper, self-interested nonsense, such as its position in Morris. The tl;dr version of this is that the Copyright Office's captured-agency self interest led it to assert that each and every freelancer's work must be covered by a separate certificate of registration, meaning that a typical periodical with material written by freelancers will have not one certificate (and registration fee!), but perhaps dozens. The full version is… longer.

15 March 2017

Aristotelian-Fallacy-Spiced Link Sausage Platter

…aka the false dilemma, which is I suspect inherent in the so-called "two-party system" — a system that is not inherently part of any representative democracy.

  • Who gives a fuck about an Oxford comma? Well, I do. And so should anyone who prefers unambiguous writing, like the US Court of Appeals for the First Circuit (PDF). In this instance, the presence — or absence — of an Oxford comma in a piece of legislation (one of those places that, ya know, good writing really matters) essentially caused an entire case and probably cost upward of a quarter of a million dollars in attorneys' fees on each side, between the district court and the appeal… and these are the lucky ones who actually got a hearing. And this time, the court actually came to the "right" (and a principled) decision based on external evidence and other statutory provisions... but better writing, and better proofreading, would have avoided the litigation. At least on these grounds.
  • Meanwhile, over in the UK a major ISP has been forced to block access to a known pirate site. In Football Association Premier League, Ltd v. British Telecommunications PLC, [2017] EWHC 480 (Ch) (13 Mar 2017), the Hon. Richard Arnold held that he had jurisdiction to issue the blocking order, and the recent CJEU decision in GS Media justified cutting off access.

    Unfortunately, the decision does assume too much in one respect: That the Premier League actually has a proper copyright right in its broadcasts of football matches. And this is a closer, and more dubious, matter than it appears… once one removes the commercial considerations that make engaging in the fight "worthwhile." It harkens back to the question of whether a still photograph of a still scene is copyrightable — and, more to the point, by whom. After all, the Premier League doesn't actually engage in any expressive conduct; it doesn't even set the rules for the matches! But that's for another time, I'm afraid; in this instance, things are rather annoyingly intertwined with the poor posture of the not-before-the-court defendants and the rent-seeking behavior of the intermediaries.

  • Prospero (the semipseudonymous group blog on the arts at The Economist) desperately tries to explain what is right and what is wrong with dystopian alternate histories without any real grasp of what they are. The column fails at both understanding the "change a single variable and see what happens" quasiscientific focus on the so-called "counterfactual" element, and at seeing that alternate history treats the history itself as an additional character rather than a mere "background element." Too, Prospero is looking at far too narrow a subset of alternate histories from which to draw any conclusions — not even a very wide range of alternate-histories-of-the-Nazis; other novels (e.g., Philip Roth, Norman Spinrad, and a host of others) and even media (e.g., Iron Sky) fall in that description and rather thoroughly refute what passes for a thesis.
  • A fascinating, wide-eyedly-optimistic opinion piece at SciAm's blog network suggests that demonizing opposing voters is counterproductive. To a point, this is correct. But:

    • Some of those voters of the opposite ilk really are "demons"; there's really no other way to characterize the ardent and explicit 'murika-is-for-anglo-saxon-protestants-only subgroup. So, just as pretending that all opponents are demons is counterproductive, so is pretending that no opponents are demons.
    • Conversely, such an effort ignores the demons among one's own fellow travellers (and yes, I use that Red Scare/McCarthyist term intentionally). For example, ardent Democrats ignore at their peril the nepotism problems presented by machine politics, with Chicago and the dysfunctional Illinois state government being only the most-obvious and irrefutable examples. Indeed, the "nepotism" issue is one reason that I was not very enthusiastic about the Presidential race, because it presented a choice among evils instead of a choice I could actively support (however flawed).
    • A conversation as proposed (and assumed) has as its premise open minds on all sides of the conversation… and, as a further subtext, that there are more than two sides. To name one, the insistence of a certain hard-core fringe that "all GMO is evil" neglects the nature of genetic modification (ask a veterinarian about the AKC's standard for "German Shepherds" and see if that's any better than gene-splicing).
    • And it's not just "open minds" that are at issue: It is the very nature of what is considered persuasive. At present, the conversation on politics — not just in the US, and not just regarding "Trump voters" — is about ideology with little regard for facts, for fact-gathering, for known problems with fact-gathering, and so on. That is, in part, because most of the public doesn't know squat about gathering facts; at best, it knows how to manipulate numbers in spreadsheets that may be WAGs hiding all of the assumptions behind them (e.g., ROI, which by definition disdains the contribution of labor and intellectual property in an ideological frame that asserts that only financial capital has true value).

    I might otherwise characterise the article as "charmingly idealistic," except that I spent far too much time dealing with the ugly underside of ideological strife to find much of it charming.

  • I am shocked — shocked, I say — to discover that the Prince of Orange's 2005 tax returns appear at least somewhat fictional. In that, I'm afraid, he's just engaging in class solidarity… and the time-honored tradition in the West of saying something different to one's tax collectors than to one's bankers. The sheer scale is somewhat bizarre, but the nature is not (nor, if anyone is honest, unexpected of this particular member of this particular class). I don't ordinarily turn to avowedly fictional accounts for deeper factual inquiry into historical events — and neither should anyone else.

06 March 2017


If you're planning a fire at the Reichstag, you can help ensure success by defunding the fire department first.

  • I did mention a fire at the Reichstag as a planned event… Of course, what the modern "anti-big-government" people carefully forget to mention is that something is going to fill the abuse-of-power vacuum left when there isn't an at-least-partially-accountable-to-the-governed government to do it.
  • I suppose it beats fighting over who hosts (largely scripted) "reality TV" shows. OK, maybe not.
  • It also beats wondering whether those setting the fire are smart enough to strike a match. Which means finding — and recognizing — a matchbook first; since "book" is part of "matchbook," we can breathe a little easier with this batch of aspiring firebugs.

    The real indictment of the media is that for the past twenty years or so — the era of Jon Stewart's The Daily Show, Stephen Colbert's The Colbert Report, at times Larry Wilmore's ever-changing show, and the continuing era of John Oliver's Last Week Tonight — those pointing out the, umm, transparency of the emperor's new clothes have been relegated to late-night TV comedy shows. Guys, I could come up with a half-hour's-worth of similarly pointed material (admitedly, almost certainly not as well done) every week on just Chicago politics and related follies, and I haven't even lived in Illinois for five years! The real problem is not that Voltaire has no following; it is that, in an age in which media ownership depends not upon the equivalent of "admission fees" but upon the whimsical and self-interested patronage of advertisers, they haven't figured out how to make Voltaire a regular component of their serious coverage. (Or, perhaps more disturbingly, they have… but they're not willing to do it because that might offend some of those patrons.) Thus, they prelabel satire as merely "comic relief," not worthy of being taken seriously. Even parody gets more serious attention, because at least parody is inherently protectable as fair use. (Ironically, the Court bungled the definition of "parody," but that's an argument for another time.)

27 February 2017

Politics Hidden in Literature

So, what does last week's story of our lives and other things look like?

  • Over at the NYT, Andrew Higgins tries to explain the folly and political context of the Prince of Orange's designation of the media (among others) as "an enemy of the people." Unfortunately, Higgins doesn't go quite far enough, and misses perhaps the most-disturbing undercurrent: Ibsen's play of that name (older translation to English).

    Ibsen's play in the original is a disturbing enough referent: It concerns a doctor — as it happens, a pretty petty individual — who discovers contamination of the town's water supply by a local mill, objects publicly, and is thereafter vilified. That is, the "enemy of the people" is the hero of the play, however flawed, precisely because he won't shut up when those with power — and, in particular, those with economic interests in the status quo, based largely upon inherited land ownership — attack him for the temerity of stating facts.

    But things get even more disturbing when seeing Ibsen's work on the American stage: The dominant translation/adaptation is by Arthur Miller, made during the height of the McCarthy era. Miller's version removes much of the comedy and ridiculousness of Dr Stockmann in favor of a more dualistic, polemical opposition between an unpopular opinion based on science and a popular opinion founded in economic self-interest. In that, Miller's version is an excellent reflection of America before Silent Spring brought the twin concepts of "environmentalism" and "long-term consequences of ignoring scientists" into even the reptilian hindbrain of American thought. But Miller's version is also a reflection of not just the debate itself, but attempts to suppress the debate, as reflected in the Army-McCarthy hearings.

    In this sense, Mr Higgins missed the point — probably due as much to space constraints in the print edition of the NYT as anything else. But it is a missed opportunity to ask the Prince of Orange, and in particular Stupid Spice (the most horrifying of the Spice Girls):

    You've done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?

    Army-McCarthy Hearings, 09 Jun 1954. Of course, I expect only bluster in response… which is exactly what Mr Welch got when he asked.

  • PW's party line continues to display its abject ignorance with a story misleadingly entitled "Ranking America's Largest Publishers" — by which it means trade publishers (which necessarily ignores two-thirds of all publishers, including three with greater total revenue than any of the Big Five), and "based on unit sales made at retailers that report to BookScan." Umm, guys: Online sales are not reported to BookScan, and accounting for sales of e-books as "retailers" is inconsistent at best. Most college-bookstore sales (in particular, textbook-department sales) are not reported to BookScan. More to the point, sales of PW (and, largely, of PW's parents and affiliates) are note reported to BookScan…
  • And meanwhile, blaming the infrastructure continues in fine form over last night's quickly corrected gaffe at the Oscars (which themselves remain fundamentally flawed in so many ways that they're essentially marketing fluff).
  • Sometimes, truth emerges in story. More to the point, the acceptance of truth (or of… other versions, as Professor Harold Hill might acknowledge) emerges not in, but through the results of, the storytelling process.

22 February 2017

First Official Trailer

The Supreme Court just gave a preview of its likely treatment of Drumpfian anti-[insert-religious-or-immutable-ancestral-characteristic] immigration policies this morning. If I may quote the (Republican-appointed) Chief Justice, writing for a 6–2 majority that includes another Republican appointee:

But our holding on prejudice makes clear that Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. As petitioner correctly puts it, “[i]t stretches credulity to characterize Mr. Buck’s [ineffective assistance of counsel] claim as run-of-the-mill.”

This departure from basic principle was exacerbated because it concerned race. “Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.” Relying on race to impose a criminal sanction “poisons public confidence” in the judicial process. It thus injures not just the defendant, but “the law as an institution,… the community at large, and… the democratic ideal reflected in the processes of our courts.”

Buck v. Davis, No. [20]15–8049 (22 Feb 2017) (PDF), slip op. at 21–22 (citations omitted).

Immigration matters are not criminal, so this is not a literal preview. The only real distinction would be the "plenary power over national security" figleaf raised by the administration and resoundingly rejected below — and, as both courts below have noted, there simply isn't record evidence demonstrating that these immigration policies are, in any way, governed by "national security" without regard to the Fourteenth Amendment. The only way that figleaf makes a difference to the censor is if what it's covering is really, really tiny… which sort of calls into question its utility in the first instance.

This is yet another instance in which facts make a difference. Both Congress and the Drumpf Administration need to pay attention, as do the states when advancing ideology in a vacuum (PDF).

20 February 2017

9066… Oh My!

I've been to a certain former racetrack near San Francisco. It's now occupied by a midscale shopping mall, with a small monument out front (as to the road)/back (as to the cinema, parking garage, and mass-transit station) that nobody ever stops to look at. Unless, that is, they're nerds like me.

  • George Takei — one of the smilingest human beings like, ever — tells a cautionary tale from his childhood… for CNN, meaning that none of the people in this administration who need to hear it will. Not even if the ghost of Fred Korematsu wakes them in the middle of the night, rattling chains, and refusing to say whether he is the ghost of February past, of February present, or of February future… probably because with this administration, he's all three. Not even if Fred's daughter makes things even clearer: That would require reading.
  • An article in CHE actually criticizes the sacred cow of academia: The hypocrisy of the tenure track… and those left behind. There is certainly a place for the brilliant researcher who is a poor teacher in academic institutions, just as there is a place for the brilliant instructor who does little or no original research more due to lack of skill/impetus than the "distractions" of teaching. The problem is that the academy's system values only the former, and considers that only the former is "at risk" in the sense of needing the protections of tenure to advance knowledge — while simultaneously denying that instruction (especially where there is controversy) is the foundation of being ready to research instead of just randomly shock with the "new" (that, all too often, turns out to be not so new after all). And the less said about the utter disdain for the "public service" component of academia (such as being real "public intellectuals" within their own and related fields — but refraining from Argument From Authority in unrelated ones), the better.

    I've been around both kinds of "professors" noted above (I survived — even thrived — in waaaaaaay too much higher education for the average bear). Ideally, all professors would combine both virtues, but it's not going to happen. Too many professors can't even write their articles coherently without substantial assistance, however brilliant their research. (And I'm thinking explicitly of you, too, law professors; remember, I've been in charge of the slush pile at a law journal you wanted to be published in.) None of this is good — not for research, not for students, not for the institutions themselves.

  • It's more than just the economy per se, stupid. There's only one historical example — worldwide, in five thousand or so years of anything resembling "civilization" that isn't on a hypothetical island sunk forever in either the western Mediterranean or the Atlantic — of internally-instigated widespread economic growth in any non-command economy (and it's arguable whether any command-economy growth was internally instigated). Europe in the "long 18th century" (approximately 1689 to approximately 1815) was characterized by increasing economic activity, financial accretion with less reliance on favorable original position, increasingly stable governance, and greater mobility of information, and financial and intellectual capital, than any previous region/period… or virtually any since other than the United States of the first half of the twentieth century (and that's arguably due to outside instigation). This should be a lesson for isolationists, but it won't be.

    All of which leads to a philosophical question for which I have no answer — only more questions. The macroeconomic debate today is based on "job creation" as a measure of the success of macroeconomic policy. Fine, it's a measure; but, in an age in which there is increasing emphasis on "entrepreneurship" at all levels of both education and post-education experience; in which entrepreneurial/small businesses refuse to treat people who do work for it as having "jobs," but being "on contract for tasks" (not that this is entirely a bad thing); in which only those with only limited amibitions for class mobility even take jobs, as opposed to "beginning new businesses": What does "job" mean? And, more to the point, if "jobs" are to be held for only a limited period of time before diving into "entrepreneurial free enterprise," does that mean that those who hold "jobs" throughout their working lives are somehow lesser economic beings?

    And returning to one qualification: What does all of that say about the change in one's "original position" as a measure of macroeconomic merit? (For example, it's quite possible that the Prince of Orange has not substantially enhanced his net original position in comparison to others who had comparable original positions…)

  • Jim Hines has posted a three-part (so far, anyway) series on 2016 novelist income from a voluntary survey that provides some starting-point data for analysis: part one (15 Feb), part two (16 Feb), part three (18 Feb). There are few conclusions to be drawn from what he presents other than "some so-called 'indie' writers are doing better than the median for so-called 'traditional' (it-should-still-be-called-commercial-but-I've-lost-that-argument-to-those-who-don't-know-that-traditional-means-vanity-press-going-back-three-centuries) writers, and some are not." The data collection method does not support more than that (which is not a criticism of Jim or his methodology, because I don't think he was trying to do much, if any, more than that).

    The main problem with surveys of this nature is that they always lose to the tyranny of the calendar. Here's an obvious example: George R.R. Martin. It's been several years since the last published book in A Song of Ice and Fire, and he's been working on the next one since before A Dance With Dragons actually hit the shelves. Nonetheless, income will be highly compressed… but I seriously doubt that analysis of that income will be sensitive to the amount of time (either hourly or calendarly, take your pick) invested in the novel. Writing income in 2016 is not just from work performed in 2016 — even when restricted to novels published in 2016 (and the less said about "spring" versus "holiday" windows, the better). And, in turn, the combination of lag and frame size differentials means that one cannot predict appropriate current behavior based upon this retrospective data, if only because the times they are a changin' (as that data itself demonstrates)…

14 February 2017

Your Dominoes Will Fall in 30 Minutes or Less

If you're reading this heavily overintellectualized blawg, you've probably heard of the "domino theory" in international relations — a (frankly misbegotten and culturally arrogant) model of how the commies would take over our allies. We're less than a month into a different attempt to impose a dictatorship, and dominoes are already falling the other way... or, at least, we can say so for amusement's sake.

  • The most-definitive domino — not the first in time to begin falling, but the first to make definitive thud in public — is Trump's National Security Advisor, who resigned because even before the inauguration he was unable to resist an opportunity to show others how Important he was. Which, unfortunately, is not inconsistent with... ok, that's perilously close to my NDA, which will outlast the heat-death of the universe.
  • Another domino is falling very softly, and I thoroughly expect that after the next stage of oral argument the Drumpf administration will attempt to make it go away by replacing the policy. Briefing continues even now on the purportedly "urgent" need to ignore due process in excluding certain religions from entering the US. By the way, under the wording of that policy, Saul-who-became-Paul would be excluded... he met the definition of "Syrian refugee," and because he started organized xtianity only after entering Syria he couldn't have been a member...
  • Then there's poor little Ivanka, whose less-than-haute-couture brand failed to support profit expectations and was axed by Nordstrom. This is only an indirect domino, representing (similar to the National Security Advisor, who does not now and never will get the privilege at this blawg of being mentioned by name) a rejection of another attempt to impose branding on reality instead of vice versa.
  • One domino that isn't falling yet is the legacy of a New England governor two centuries ago: partisan gerrymandering. And here, I'm afraid, the courts have — to use the technical term — fucked up with their own allegiance to domino theory, by holding that mere partisanship in elections is a "political question" and therefore not within the competency of the courts. The problem with this theory is that by the time it gets to the courts, there is no one left to answer it who is not a far worse danger to separation of powers and representative democracy... so by abrogating purported "political questions" when they relate to electoral process, the courts are actually undermining judicial independence.

    Bush v. Gore presented a clear, partisan, political question. However, much as I hate to say it given the consequences (which included needless casualties and a near-Depression), it's a very close legal question, because it involved the exercise of a particular executive-branch elected official's discretion when that official had sworn to uphold the law. I understand and acknowledge on those facts (however much I disagree with it based on facts that have only become known since the proceedings) the rationale that absent a smoking gun of intentional disloyalty, the courts simply should not have intervened. Gerrymandering, however, is different precisely because its very nature undermines the rule of law in favor of the rule of factions. And although that is, in some sense, "political" and therefore purportedly beyond the capacity of the courts to deal with, it is "political" in a process and structural capacity in that — unlike the exercise of discretion in Bush v. Gore — it seeks to suppress the dissent that is the foundation of democratic institutions by pre-electoral rpressive action concerning legislative (and not executive) selection. If there's one unbroken thread of reasoning in all of US electoral law, it's that all interests are entitled to representation in law-passing parts of the government... and that everyone has an equal right to vote on the single winner of elections for the law-refining-and-implementing part of the government. And that's why partisan gerrymandering is not a "political question"; the clothing of the "political question" is cross-dressing of a much nastier beast.

And now off to the doctor for another post-surgical follow-up. I don't have time (or energy) this morning to show how "domino theory" is affecting intellectual property law and/or authors'/musicians'/artists' rights... plus, as the Emperor of Austria noted once, that would have too many notes. (Of course, he was wrong, but that's for another time — even if an entirely ironic counterpoint to the current refusal to footnote anything coming from 1600 Pennsylvania Avenue.)

10 February 2017

Friday Roundup

… sprayed on the weeds without regard for environmental regulations because, in this new to-be-made-grated-again America, we can just ignore regulations and laws that get in the way of profit, right?