28 February 2023

Avoiding Expiration Link Sausage Platter

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

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

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

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

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

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