Sunday Sausages

I'm moving the weekly roundup of miscellany to Sundays for a variety of reasons, mostly having to do with changes in the schedule in the real world (or as close as things get to the "real world" in Chambanana, anyway). Today, I've chosen a somewhat schizophrenic abstract-concern-to-concrete-issue organization.

• The criticisms of historiography in judicial opinions that I raised not long ago appear to be simmering. Other (more eminent) blawggers made similar observations, and now the general press is starting to pay attention. What this really points out is that we do a remarkably poor job of ensuring a different kind of diversity on the bench and in chambers: Diversity of academic background. As an example, for the fun of it I went through the resumes of Supreme Court clerks for a recent four-year block. There was exactly one out of the 100-odd who had a discernable science/engineering background. I didn't keep statistics on historians, but I recall being disappointed by the low numbers in that field. By concentrating on racial, ethnic, ideological, and/or partisan "diversity," we've lost sight of too many other kinds of "diversity" that are far more relevant to one's ability to resolve disputes.
• Then there's the question of business theory, such as a quasiacademic consideration of the viability of long-tail strategies. The main problem with this article — and with everything else purporting to put forth a single strategy — is that it represents yet another attempt to criticize the latest effort at a Unified Business Theory (or to explicate one). As Clausewitz said (roughly paraphrasing), in warfare many things are simple or clear... but even the simplest, clearest thing in warfare is very difficult to actually do. Anyone who had ever taken calculus-based physics, or organic chemistry, would not have put forth either such a simplistic proposal as the "long tail theory" or offered such a simplistic critique. The key insight is simple: Friction happens. Of course, the math to prove it is not, which is probably what drives a lot of journalists (and business professors) away.
• Turning to slightly less abstract material — but only slightly — we've got issues arising from Kafka's papers and amnesia about the history of social theory. It's always at least somewhat amusing to see articles like these start out promisingly and then fail to deliver on their promises... or premises. Let's just say that the warrants offered in the articles come nowhere near justifying the conclusions hinted at in their opening paragraphs.
• Theory, though, is an important initial consideration in forming long-term plans. (Exhibit A, a counterexample: the Iraq debacle; Exhibit B, also a counterexample: the Vietnam debacle; Exhibit C, another counterexample: Inscrutable Design) Every author, agent, and publisher would like to find a formula for literary success. Personally, I've always preferred Don Maass's version: "write a better book". That, however, requires effort, as does appreciating why Joss Whedon's dabbling in musicals seems to excite a Hollywood beset by a lack of fully realized heroes (for some value of "hero" other than the facile bullshit put forth by Joseph Campbell). Maybe it's just character defects writ small?
• One of the real quandries in copyright law is one that has gotten little attention — except as a result of Judge Easterbrook's misbegotten opinion in ProCD, which is even more "equitably challenged" after Dastar: When do restrictions in a purported "license agreement" that go beyond what the Copyright Act authorizes cross the line to "misuse"? It's not an abstract question; consider what happened recently to users of Microsoft's DRM-verification service whose music collections became unplayable bits on their computers when Microsoft permanently shut down that DRM-verification service. Too, consider the interplay among "legitimate" DRM under Chapter 12 (the anti-DRM-breaking provisions of the Copyright Act forming the ill-advised Title I of the DMCA), the statutory right of "fair use," and the equitable underpinnings of both copyright "use" and the shrink-wrap license agreement. Perhaps this particular item has ended up sounding abstract, but it's not; anyone who (foolishly) depends on iTunes for music is going to encounter it at some point in the not-too-distant future.
• I know where my brain is going to spend tonight. As Captain Willard said, "Riyadh. I'm still only in Riyadh." OK, I'm not going to break any mirrors or anything, but reading about Batebi's escape from Iran in the NYT this morning has a sort of nostalgic ring to it.