07 December 2023

Infamous Link Sausage Platter

There are two aspects of this calendar date that continue to live in infamy: Korematsu and Hirabayashi. Well, three: Manzanar. Well, four: Executive Order 9066, and an almost fanatical devotion to genteel bigotry. I'm just not going to try to explain how this kind of neglected history makes the current brouhaha over who, and how, and when people can be selectively outraged by atrocities in the Levant not just possible, but probably inevitable (if only because it would probably be book-length and still be nowhere near complete).

It's almost always a mistake to conflate "acts and opinions of political leadership however selected" with "acts and opinions uniform among an entire population that is 'subordinate' to that leadership." In the end, that's exactly the point of "Never Again" and "Never Forget."

  • Of late, self-regulation of judges has been somewhat in the news, even at the state level. These problems are both inevitable and avoidable. One need not even note the overt conflicts of interest (which are also inevitable when we foolishly-but-avoidably elect judges… or prosecutors and chief law-enforcement officials). In virtually every state, the entire legal disciplinary system is under the supervision of the state's highest court, which builds in even more blind spots than a military whose discipline system runs through and is dominated by the Academies (that still have Certain Statues at their entrances)… but is still subject to dedicated civilian control, unlike the legal profession.

    All of this also underpins the organized bar's inability to recognize that its prior ethical requirement of "zealous advocacy" is self-defeating when the entire job of lawyers is to assist the clients in resolving (or better yet preventing) disputes short of bloodshed, short of resort to that military. Sometimes — and it's utterly disfavored — one must tell one's client that there's little or no justification for further pursuit of the client's interest in the legal system, in court or otherwise. We don't actually teach that, and we bloody well don't reward that in practice. Sometimes the client is actually liable (leaving "criminally guilty" for another time), or deluded (or worse); we're seeing that play out in Manhattan right now concerning the Orange One, and that's far from the clearest or most prominent example.

  • Then there's the slightly-less-inflammatory context of "intellectual property rights," which is an incredibly misleading misnomer. Some of the most-important (and most-annoying) rights often lumped in with, or at least treated as equivalent to, "intellectual property" are not "property" at all, like the right of attribution — a right much clearer in Europe, but that the US assured everyone was embedded in US law (just not the Copyright Act) when it joined the Berne Convention 35 years ago. The problem is not with IP rights per se — and copyright is merely an example, things are just as distorted in patent law and elsewhere — but with the monomaniacal quasireligious obsession with the economic activity of transferees and distributors, especially when misstated, misrepresented (that's not just a whisper of "Copyright Clearance Center" you're hearing in the background), and/or misused to actually suppress originality. Presuming that originality has an objective basis is the least of the problems… except if it's referring to "the original of a bank statement."
  • Gee, it almost sounds like the legal system has a "blind spot" regarding "creativity." Almost as if the relentless demand — whether one is in a common-law or civil-law system — to prove that one is right by demonstrating that someone else has said the same thing before, even if only in an out-of-context soundbite, limits perspectives. Almost as if scientific ignorance and blindness on the Supreme Court, even when resolving an overtly scientific dispute (and notice that I didn't even have to resort to the abortion/viability/beginning of life issue?), are perhaps inevitable when the last time that any Justice was in a lab was an introductory general-education class as an undergrad. The last Supreme Court justice we've had with a STEM degree of any kind graduated with a math degree — not a laboratory-science degree — in 1929, and wrote the decision that gave us rigid trimesters. So I guess I wasn't so successful in avoiding the abortion controversy here…

    Not fit for purpose. In large part I blame decades of overemphasis on undergraduate grade-point averages at the top law schools that feed into the Supreme Court, and the judiciary as a whole. Laboratory science programs who send their graduates into law do so from a cohort whose GPA is half a point (out of four, in the US system) below that of the polisci/econ/literature/philosophy core, if only (albeit not only) because the grading systems are discontinuous. This makes those with creative, rigorous backgrounds in the sciences largely noncompetitive for admission to the "feeder schools."

    Any parallels to the blind spots in the US officer corps in Vietnam and since are, well, bloody obvious — things like a paramilitary structured like Napoleonic despotism having predictable failures of command responsibility and authority arising from that very structure. Hint to the "naval services": The median middie or seaman recruit today is better educated than the median admiral of 1807, so treating that seaman as if his/her/their brain is a piece of deck planking is not going to work.

  • That's less infamous, though, than theocratic bullshit often excused by self-deception. But pointing out that self-deception and bad reasoning leads to further self-deception and bad reasoning is just not very popular. Or populist. Or electable.

So maybe "infamy" tends to arise from ignorance and tunnel vision. Like that's a surprise.