09 April 2020

Justice for Nothin' and Your Links for Free

Naturally, the "free-est" link at the end is nothing but. And rather highly footnoted (there will be an online quiz).

  • For an appetizer course that's a bit on the lighter side, I'm always amused when screenwriters and other entertainment figures display their ignorance about copyright. Bluntly, the real reason that recipes are so full of things other than, ya know, the ingredient list and spare directions, is that the ingredient list and spare directions are not copyrightable. No matter how original the result of the recipe! Instead, the ability to protect what is in cookbooks and commercial journalism food columns and so on is what began driving this meme, all the way back in the 1950s when the noncopyrightability of the recipes per se filtered into proto-BigMedia offices and the papers (and cookbook publishers) began experimenting with ways to make them farther from merger of information with expression. Feist put the nail in the coffin of the old-fashioned Junior League cookbook style.
  • On a more serious note, COVID–19 is masking continued problems with refugees. Not just in the US, either. One wonders how many of Boris the Spider's caregivers are non-UK citizens, or have been non-UK citizens. Especially the ones beneath his notice, like circulating nurses and respiratory therapists and respirator-repair technicians and pharmacists and…
  • Getting a bit closer to the headline, study music (seriously, which necessarily means not on the bloody dance floor) for better brain function and lifelong health. And "seriously" doesn't mean education-free.
  • The Washington Supreme Court issued its opinion in Rocha v. King County, No. 96990–6 (Wa. 09 Apr 2020) (pdf), concerning the criminally low rate of jury pay. Pun intended… which, more than anything else, explains why legislatures everywhere don't do anything about the second-most-important duty of every citizen.1 In Rocha, the fundamental finding was that jury pay is so low that it's essentially a violation of someone's rights… but the courts have no authority to require the legislature (or subordinate government units) to appropriate funds for, or even establish, a higher rate. In this, the court is unfortunately correct, but primarily because of the cramped precedent regarding courts' ability to direct legislatures to spend anything.2

    The obvious bit of class warfare lurking in this issue is the "all taxes bad, especially when they 'redistribute' income even indirectly" meme that is also so obviously a problem right now. (If nothing else, the lack of ventilators and trained personnel to operate them and protective gear for healthcare workers and first-responders illustrates that.) Actually paying jurors the equivalent of the minimum wage3 would increase jury costs by a factor of at least ten… because in Washington State, almost all jurors are paid $10 a day (not hour) plus a purported expense reimbursement that actually manages somewhat less than 70% before considering the costs of childcare (which are not reimbursed). And that's just a back-of-the-envelope calculation for that minimal increase.

    The more-subtle one is the question of who actually wants a jury. Bluntly, the general perception on the part of the upper class, the property-owning-upper-middle-class, tax activists,4 and corporate actors is that juries will almost always be requested/required by the great unwashed. In some sense, that's because those groups don't see themselves as ever being criminal defendants… and when they are, they'll have (very expensive) counsel to blunt the unwarranted attack on their reputations, or to work out a Club Fed plea agreement in those instances that they can't evade responsibility.5 It's those great unwashed who "disproportionately" want/need juries — and not just on the criminal side, but in Buffalo Creek and Woburn and Hinkley. So by suppressing jury pay, the "taxes are for lesser beings" classes get a threefold benefit beyond the lower taxes:6 They prevent a "redistribution" to a broad spectrum of society that hasn't already proven "deserving," functionally restricting jury duty to those disproportionately more like them (or at least less like the truly unwashed); they ensure that those most in need of juries do not have juries like them;7 and they subtly put a thumb on the scale of the actual outcome because the juries — being nonrepresentative — are more likely to sympathize with their concerns when the evidence is close, the advocacy is winning-is-all-that-matters-and-truth-be-damned, and the judiciary8 is desperately trying to responsibly stay within its budget and thereby find ways to minimize jury trials through dubious jurisdictional, procedural, and less-insightful-than-one-might-expect evaluations of evidence before trial (and even afterward).

    It's buck-passing (literally) for the Washington Supreme Court to say it can't fix the problem. At some point, though, this is going to constitute "Constitutional structural defect." On this record, we're not there… yet. But we're closer than I want to be. What this opinion really does demonstrate, though, is a fundamental negative externality directly caused by the upper-class-friendly tax-minimizer lemma that "user fees" are always an adequate substitute for general collective measures.

  1. The more important one? Constitutionally — and this is a really poor decision that should be amended — the one that happens on the first Tuesday after the first Monday in November, and marks the actual distinction between the rebelling colonies and its imperialistic colonizer. Fortunately, I live in a vote-by-mail state (and the ballots are even prepaid), not Wisconsin (pdf).
  2. The obvious alternatives might well be worse; I'm noting this as a failure mode in the least-bad analysis, not as a demand for judicial supremacy. In any event, though, the facts presented and legal analysis inadvertently expose two threads of underlying class warfare that have been ongoing for centuries in every nation that empanels juries.
  3. Which was miscalculated by the Washington Supreme Court. The Court failed to acknowledge that any remedy would be prospective (not retrospective) and therefore must concern current minimum wage levels. The Court also misstated that the expected workday for minimum-wage workers is seven — and not eight — hours, even though the sentiment was about right; and anyone who doesn't think that jurors are thinking about their service over lunch has never actually performed jury service, not even military-court service.
  4. "Taxes are what we pay for civilized society". CompaƱia General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 US 87, 100 (Holmes, J., dissenting). Especially in this time of public health emergencies, I want a more civilized society; when one of my doctors was fired for fulfilling what he saw as an ethical duty and the guy who fired him had not — according to several other workers in that part of the hospital — been seen in the ER for months and thus had no first-hand knowledge to refute the complaints (and thus little first-hand basis for his own claim that Dr Lin's statements were rife with falsehoods), even a privatized "nonprofit" healthcare system (nonprofit? with the endemic siphoning of revenues for nonhealthcare services by "sponsors" and nonprovider-executive salaries?) doesn't qualify as "civilized."
  5. We'll ignore the horrific incidence of drunk drivers, domestic abusers, sexual predators, and similar miscreants in there; we just don't talk about them. Right, Harvey and Jeffrey and Teddy and Eliot?
  6. Which might add as much as $25 — that is, one day's maximum pay under current Washington law — to the total annual tax bill for most taxpayers. Or about the cost of a BluRay about a jury (almost none of which is going to the people who actually made the film, or wrote the play).
  7. I do not wonder whether Mr Eyman has any concern about future social distancing on overcrowded public transit; it's pretty damned obvious that Mr Eyman had never been on the 240 route from the Eastside into the UW in his life, let alone lost the hours spent waiting for overcrowded late buses. <SARCASM> But I do wonder whether he'll want a jury if he's indicted for bankruptcy fraud or campaign finance fraud. Although any jury defects will be richly deserved if sympathetic jurors are excused because they can't even get to the court (a serious problem if you've ever seen either the King County or Snohomish County state court traffic/parking patterns, or the US District Court in Seattle), let alone afford to serve.</SARCASM>
  8. Which is itself rather class-selective — especially in the federal system, unfortunately. Contrary to the self-serving BS put forth by many of the elite law schools, economic priors matter a lot to even getting admitted, let alone the offered financial aid (which seldom, if ever, even considers family status… let alone adequately). And these days, getting onto the federal bench (in particular) essentially requires a "top-twelve" law school or law review leadership at one of the next twenty or so schools (which leaves no time for in-term "work-study," let alone families). Been there, got the documentation; and I'm far from alone.