13 June 2021

Perhaps Necessary, But Not Sufficient

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

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

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

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

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

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

05 June 2021

A Politics-Free Platter

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

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

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

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

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

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

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

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

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

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

22 May 2021

Personal Boundaries

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

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

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

17 May 2021

Late Spring, Not Surprised

Meandering toward the "official" start of summer. Fortunately, after the move it'll be a little easier to find a vegetarian volunteer for a vegetarian barbecue — maybe one of the rabbits under the front bushes <vbeg>…

  • When the book segment of publishing begins showing a self-deprecating sense of humor about its own historical — irrefutable — glitches, maybe I'll start thinking it's worth saving. From economic causes. From its own arrogance.

    I'm not holding my breath. Not even for the Grauniad itself.

  • Copyright news is rather mixed of late. On the one hand, the parody exception has some vitality, even regarding derivative works. Not enough. But there remains the question of who gets paid and how.
  • If only the critics of critical race theory had a single f*cking clue about what CRT is, or does, or how it works, or what it is reacting to. Admittedly, some of the rhetoric in summaries of CRT work is monotonic, unqualified, and overstated; race is almost never the sole relevant factor in complex issues (not even Klan lynchings). But trying to pretend that CRT is "evil" and/or "impossible" is rather like pretending that differential diagnosis doesn't ever work. Both have limits; both are also extremely useful when based on factual inquiry. Of course, "factual inquiry" and "discussion of race issues" seldom occur in the same discussion, let alone same sentence like they need to.
  • CRT, differential diagnosis, influence on authors. Trying to turn complexity into simplicity has its price: Missing things.
  • On occasion, though, overcomplicating things can create problems, especially in the arts. One need not delve into the purported psychology of PRC oligarchs to understand why Chloe Zhao's success in H'wood is a bit ambiguous.

10 May 2021


Migraines (and their aftermaths) suck. That is all.

Well, not precisely all — a couple of link sausages (not really enough for a "platter") have just come out of the smoker.

  • When even an opinion column in the LA Times is questioning something in the arts, you know that concept has gone off the rails. (Let's leave aside for the moment the dubious proposition that "blockchain means unbreakable and therefore unforgeable"; my distant-ancestral-cousin Friedrich proved otherwise for an "unbreakable" cipher system a century and a half ago, so I suppose I'm predisposed to skepticism.) The fundamental problem with NFTs, though, is not blockchain per se: It is the scarcity/uniqueness issue and the tension between "unique originals" and "actual creativity" that surfaces in so many copyright and related disputes. Advocacy of the NFT is, if anything, a reification of pre-Gutenberg mercantilist economics for the digital age. And that should cause one to pause right there, because the Ms Wertheim's piece just assumes it; just assumes that artificially created scarcity works.
  • But it could be worse. We could still be worrying about COINTELPRO. Maybe we'll eventually start comparing the USA PATRIOT Act to COINTELPRO. More likely… not so much. Because if there's one thing that the body politic in this nation has absolute confidence in, it's that it won't repeat the errors of the past once it recognizes them as errors.


29 April 2021

The Era of "Government Bad" Is Over?

Moving doesn't make for regular blawgging. Neither does a bone bruise on one's foot. Nor the discovery that many boxes of material that were supposed to be retrieved from storage… weren't (including all of one's woodworking tools necessary to settle in one's bound-and-printed children).

  • The fundamental assumption with the Reaganist/Clintonesque vision was that private actors would — motivated solely by profit — more efficiently provide the necessary infrastructure and services that government had been tasked with (however inefficiently), while being more nimble and innovative about it. The fundamental problem, though, is that infrastructure and services are not "things" that lend themselves to modern financial analysis; they are ongoing processes that run into unexpected events (like a certain virus) and must nonetheless keep running, even when unprofitable or inefficient.

    The President began to hint that some people just might understand this even when their actual motivation is the next election, not the next quarterly report. OK, I'm a cynic: The Congresscritters' motivation is derived from the next quarterly reports of their corporate overlordscampaign contributors, as epitomized by weapon-system procurement — the one part of "infrastructure and services" that literally has no private counterpart for valid comparisons. Small mercenary armies like Blackwater, or whatever its name is this week (and by the way it was founded by a relative of a recent Drumpfist cabinet officer), don't count because they rely on others for the actual infrastructure — the "tail" that is the real, and successful, American Way of War. (The F-35 is what happens when the only people who are making decisions are the pilots, with no knuckledraggers granted any right to suggest anything else. It's a flawed design based upon a flawed concept that ignores logistical reality.)

    The fundamental problem with the "let's repress the government" memes are that they represent negative externalities in the same way as pollution: The parties that most benefit from not participating in (or paying for) the types of infrastructure and services provided by governments disproportionately benefit from that infrastructure and those services anyway. And indirectly, too: There isn't an international private market for most goods and services of, say, the tech industry during rampant warfare elsewhere, which is at least arguably suppressed by having an appropriate overt/covert defense force available (however often it is misused; right, Mr. Allende? Mr. Allende?). That's just one example, and my point is that it's an extremely complex system. "Extremely complex," however, doesn't win elections in an era of soundbites and cows with antisocial media feeds.

  • There's another area in which "infrastructure and services" don't bow to traditional business analysis: The arts. Specifically, consider the problems of trademark enforcement for games. Admittedly, this is an extreme case; both the present "owner of the mark" and its predecessor are/were bad actors, encouraged to do so by a trademark system that is wholly against actual innovation.

    The fundamental problem here — one that the trademark system doesn't just neglect, but rejects — is that contemporaneous secondary meaning ignores alternate secondary meanings at the time of first use. The word "monopoly," for example, meant something entirely different to both cognoscenti and the general public at the time it was invented as a polemical educational device (and later appropriated — or misappropriated — into its current form by an entrepreneur). At the turn of the twentieth century, a "monopoly" was very much a bad thing in American culture; and that leads to questions today about a firm that would love to be a monopolist and whether both that firm and its product are mindlessly engaging with financial supervillainy. After all, villains never believe they're "villains" and can almost always justify their actions using some rhetorical smokescreen; in this instance, the lebensraum got overliterally translated into the "living room," and I think I've just broken Godwin's Law again. The key point here is that none of the people involved in misappropriating a term of common usage into a "valuable mark" actually created a damned thing; the creator never benefited.

  • And authors are at least as vulnerable, even when there is a promise to pay. This is made much, much more complicated by the way that most of these media contracts (which originated on or after 01 Jan 1978) were drawn in defiance of the requirements of the Copyright Act, asserting that they were "works made for hire." (I've seen a number of media-property contracts this century asserting that book-length works of fiction by freelance authors — that were derivative works, no less — were "works made for hire.") And that particular vendor is definitely an "oligopolist" striving to be a "monopolist," if nothing else. At least it's not a major textbook vendor (yet).

    There were lawyers involved in this who obviously had no clue about the implication of R. Prof. Cond. 4.3 that, when one is representing a downstream purchaser, one cannot cut off upstream rights without at least notice to the holders of the upstream rights. However "inefficient" that would be.

  • The Who had it right: Creators who want to get paid sell out (I've still got vinyl somewhere in those storage boxes that didn't make it here). That's how major copyright decisions reflecting First Amendment rights and the very purpose of copyright end up being litigated by a faceless corporate entity (what the hell did beancounters at Acuff-Rose Music have to do with Roy Orbison's actual creativity anyway?), even when the entire system further screws the songwriters.

15 April 2021

Not the Tax Man's Day This Year

One for you, nineteen for me, is pushed off to next month by COVID. Of course, there are people who would still be obscenely wealthy if subjected to such a tax rate…

  • I'm afraid that Juan Williams is very late to the party. Or the Party. The GOP has been the party of grifters and kooks since I became eligible to vote (and that's a loooong time). That's who was left after Nixon, after he demonstrated all too well that principle doesn't matter (and remember — in almost all policy aspects aside from race relations, Nixon would be labelled "liberal" today, however incorrectly) nearly as much as self-aggrandizement. Whether on the books or… otherwise. That's who Ronald I brought to DC with him, and they stayed around for the fun.
  • Continuing with the theme of "grifters and kooks": As is usual, the recorded-music segment of the entertainment industry is roiled in controversy over artist payments. Leaving aside for the moment that there are — unlike the other segments — two distinct, separately contracted, separately calculated payment streams for recorded music, this is also a distraction. Yes, the performers deserve to be paid fairly. Yes, the composers deserve to be paid fairly. (Sometimes they're the same individual(s), but the payment streams are still separate.)

    The problem is distribution. As also is usual. Throughout the arts, distribution is where the real money is: The publisher, not the author; the film distribution studio, not the scriptwriter. There are always just enough exceptions, just enough individual successes, just enough lottery winners, to keep attention away while the house rakes its percentage. And that's in an honest casino… The problem isn't confined to those arts in which there's reproduction of an already completed work, either; live theatre and fine-art galleries have similar mechanisms.

    I don't claim to have a solution. The direction that music streaming is evolving, however, isn't it.

  • Then there are times that the reasoning just doesn't cut the mustard. Literally. A small-town vendor of an imitation of aa common-in-central-Europe condiment sued Heinz for a somewhat-similar mark and product that "infringed" his incontestible mark. He lost in the district court, but the Fifth Circuit gave him another bite of the sandwich (PDF) while still evading the primary issue: The validity of the doctrine of "incontestible marks."

    Frankly, the real problem here is the commercial mayonnaise. Which is an abomination… or, perhaps, someone looked at the ingredients and "flavor profile" of Miracle Whip®.

09 April 2021

Easy Riding Ain't Free Riding

Motoring right in:

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

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

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

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

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

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

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

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

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

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

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

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

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

04 April 2021

A Query for the Governor of Another State

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

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

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

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

30 March 2021

Insurance-Denial Link Sausage Platter

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

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

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

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

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

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

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

26 March 2021

They're Repressing Me!

Public discourse is getting… weird.

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

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

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

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

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

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

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

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

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

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

25 March 2021

A Smattering of Elemental Strategy

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

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

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

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

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

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

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

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

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

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