The Way It Isn't

[Dr] Martin Luther King [Jr] Day was formally established as a federal holiday in the 80s, falling on the third Monday in January. This year, it happens to fall on 20 January — the first time it has been on Inauguration Day {ETC: of a new Administration}. So Dr King's commemoration coincides with… this. And this. And this. I think I'll have to shift to a new cliché-like aphorism, perhaps "the paper calling the snowflake white"; I can't very well use the old one, about cookware, as the hue is rather ironic (and they don't get irony — not even, perhaps especially, cast-iron[y] cookware).

• One area that is just not going to get an awful lot of public attention from the incoming Administration (not that past Administrations have done much more) is the region surrounding Mu5k's childhood home — before his adventures with a US immigration "system" that would have astounded Kafka with its arbitrariness and culture of secrecy. At least now, though, Leopold's ghosts are clanking loud enough to be heard; even slightly further afield.

  You can scream "America First!" all you like, guys. All you'll be doing is trying to deflect attention from nearly a century of America screaming exactly the opposite to the rest of the world — which, when it didn't believe it, at least heard it.

• Sometimes, by sticking to their "areas of competence," academic organizations can (often inadvertently) provide a window onto incompetence. In particular, the American Historical Association has condemned destruction not even of historical monuments, but of education and particularly teaching of history in Gaza. One should carefully note two things here: This statement is confining itself to present efforts by the theocratic government of Israel, and making no claims that can support even a conspiracy-theory-tinged claim of "antisemitism" — particularly since Palestinians are a semitic people, too; and the OP is unduly generous in saying "Historically (ha), the AHA has functioned as a moderate-to-conservative organization, often loath to weigh in on political matters." My past professional interactions indicate that "moderate-to-" has little support in the AHA's ahistorical — ha yourself! — silence on a broad range of adventures and the narratives arising therefrom, precisely because in a very McLuhanesque fashion, the historical narrative is the educational/scholarly/political positions because the historical narrative shapes and controls their scale and form.
• The AHA is far from the only "learned organization" with an undeserved reputation for true and neutral rigor; I'm a refugee from four others! Sometimes, those clubs for "experts" don't even try to be neutral (or rigorous); even more often, the hidden agendas are dangerous precisely because they're hidden, and all too often undermine or contradict that carefully-shaped reputation (for example, anyone who claims that the American Bar Association is "leftist" or "liberal" has never actually read the ethics rules it sponsors, let alone pondered the structures and silences).
• The less said about the "evolution" of gaming, the better. It's rather distressing that a pasttime based on a literature of the imagination, of difference, of above all turning failure to conform to expectations into a virtue, has been appropriated via the somewhat misnamed Lamarckian inheritance of political affiliation, of religion, of vice — and of virtue. Ironically, many of those who object to the place of outliers in character-based adventure gaming choose to ignore the vast variations built into character generation, themselves typically rolling a five for wisdom (yes, I still have my original-edition three-volume set and the heavily annotated copy of Chainmail needed in large spaces and outdoors; get over it). Snide remarks about how "wisdom" was/is all too often a proxy for "socialization aligned between sociopathy and extreme conformity" will have to wait for another time, especially when applied to the "original gamers" in and around Lake Geneva… and their corporate successors…
• Unfortunately, there's a common spicing on this platter: The power of (self-aggrandizing) narrative to overwhelm inconvenient, unfavorable-to-self-image/interest facts. The real problem with Mr Walther's piece is that he stops before closing the methodological loop. I'm sure there are some differences, somewhere, somehow, among Goebbels, Alex Jones, and organizations acting the same way — but those differences are not in methodology, and only marginally in viewpoint. Which is not to say that, historically, that sort of thing has been confined to the mislabelled "right wing"; it is only to say that the "right wing" is at present more obvious/oblivious about it.

  tl;dr "Good" and "evil" are seldom pure, no matter how they're presented for marketing purposes. Means used limit and shape the ends actually achieved; when those means rely upon deception…

No, Sir — That Is Incorrect

Saying that too often definitely impairs one's career prospects. Saying it at all far enough up the chain of command/supervision makes that consequence rather more… immediate. As I have precisely no career prospects in the present or incoming administrations, I'll do it, remembering that speaking truth (or advocating alternative viewpoints when "truth" is indeterminate) is not a declaration of sartorial impropriety.

Secretary (Gen) Austin, you have recently attempted to impose what appears to be unlawful command influence (PDF) upon decades-long criminal proceedings involving specific defendants and alleged offenses — proceedings that began outside of your personal purview — by rejecting plea agreements. This decision cannot be justified either in principle or on these facts. In short, sir, you are in the wrong here, and your attempt undermines both the justice system and the chain of command. Not just the military justice system, but the entire apparatus; not just the chain of command to GITMO, but every chain of command involved with post-activity consequences to be imposed on non-US persons (which, ultimately, is all of them). That imperils your oath of office, and everything you've stood for in the past half century — since you took that oath upon entering the United States Military Academy to support and defend the Constitution of the United States against all enemies, foreign and domestic. I respectfully suggest that you trust your learned subordinates, rescind your statements, disqualify yourself from further "supervision" of the process, and allow proceedings still in pretrial mode to continue.

Your post-plea decision to reject the plea deals in this matter appears — so far as is in any currently-available public record — to be unaccompanied by specific implied threats of retribution against the officers (and others) involved in making a decision on the facts before them.¹ That, at least, is somewhat less egregious than it could be (and has been). The standard, however, is not "somewhat less egregious." It is to not only do justice, but be seen to do justice — and as Gilmet and similar matters imply but seldom state explicitly, that includes nonjudicial decisionmakers. That is the point of having a military (and related) justice system, of the general concept of the rule of law, of both the entirety of and specific provisions in the Constitution.

The particular sequence of events at issue here rests upon two decades of (entirely understandable) public outrage.² This points at the fundamental tension between "democratic will" and "professional judgment." You are not a lawyer, so you are not charged with that particular version of "professional" (although those who negotiated and accepted the plea agreements at issue are, a fact that should inform your own decision process). You are, however, by training a professional military officer — and you have retaken that oath you took in 1971 to place loyalty to the Constitution above all else. It is bad strategy to undermine one's own principles of command and control in pursuit of small immediate advantages, and especially so when that pursuit seeks an irreversible escalation on the spectrum of conflict.³ These plea agreements seek to impose the only sanction short of the individual-instance equivalent of total nuclear war: One cannot deescalate from the death penalty once imposed and executed.

Delegating leadership and execution is a necessary element of strategy, of government, of state policy. The irony that the real reason delegation is both necessary and appropriate when dealing with individual, tactical matters is that the lower levels of leaders making those decisions have specific competencies and information not available to their superiors, as often as the converse presumed in "civilian control of the military," appears to have escaped almost everyone. This tension is implicit in the precommissioning programs throughout the US military (and that of most democratic nation-states), and throughout further professional military education and command-selection criteria thereafter.

Please reconsider your decision to overrule the underequipped leaders in actual tactical control who — very much like Operation Eagle Claw — have detailed appreciations of tactical specifics that you do not. Unless, that is, your decision is based upon what must be at minimum breaches of attorney-client privilege, which would very much resemble destroying the village to save it.⁴

Mr Secretary — General — please reconsider. Conceive that just as you believe those who negotiated and accepted these plea agreements might be wrong (from at minimum a certain perspective), so might you. Trust the years of training, the years of investigation, that have gone into those decisions made by those in a position that you might well have been in yourself. Trust the remainder of the Constitutional process. Remember that under these plea agreements, those individuals are pleading guilty and are being incapacitated from repeating their conduct, without achieving a martyrdom whose attraction is literally foreign to you and especially to those to whom you answer.

In short: Do not demand complete victory in a context in which victory is inherently incomplete.

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1. I have precisely no confidence that those around you, in both the present and incoming administrations, have similarly refrained. Unlawful command influence occurs by proxy, too; that is precisely what was at issue in Gilmet. And, for that matter, at Nuremberg, in post-Yugoslavia proceedings, in… Delegation does not remove command responsibility.
2. I do not believe that I am saying anything you have not considered, particularly since you held multiple command positions concerning the conflict zone. Neither am I saying anything not already said behind closed doors: That the very nature of these proceedings arises from information-gathering sources and methods — indeed, from specific information — that nobody who actually knows anything wants revealed in public. Not even, if it thought about it (which almost by definition it cannot and will not), the Mob.

   The disturbing corollary here is that rejection of these plea agreements — agreements which would keep the defendants in custody for the remainder of their lives, just short of the maximum possible penalty — appears based upon not just policy imperatives, but relevant information that has been withheld from those charged with making individual-case decisions. That is not good military strategy.

3. See, e.g., Frank Hoffman, Examining Complex Forms of Conflict: Grey Zones and Hybrid Challenges, 7(4) Prism 30, 32 (2018) (PDF). This is not at all a controversial or unfamiliar concept; in broad strokes, it has been a fundamental part of officer training throughout the nuclear age, and is implicit in centuries-old doctrine. Cf. e.g., Carl von Clausewitz, Vom Kriege ("On War") (1832, this trans. 1874)("War is only a continuation of State policy by other means").
4. The controversy over both the origin and later uses of this statement is not just relevant, but is indeed the point.

Survival

Four years ago, there was a serious possibility that this nation would succumb to something that hasn't ever happened on this part of this continent before: A successful violent revolution by the loser at the polls. The First War of American Secession came about precisely because there weren't any polls, so the colonials could hardly be accused of sore-loserdom. The Second War of American Secession beat back the attempt (after four years), although we're still recovering from it in many ways. This time around, the loser was more graceful, more respectful of a quarter of a millennium of men and women who fought, and bled, and died — and of those they never came home to — in defense of "voting matters."

What damage that former loser will cause is for the future. It may be mostly "just" policy failures (as I remarked here just short of a couple of decades ago, stupid ≠ unconstitutional); it may be the executive this time instead of Congress; it almost certainly will result in needless suffering, casualties, and probably deaths. But we're not quite at the death of the American Experiment

We interrupt this rant to return to the irregularly-scheduled platter of link sausages.

• All too often, "old and wise" really means "decrepit and inflexible." It's been a dozen years since there's been an occupant of 1600 Pennsylvania Avenue who wasn't drawing Social Security, and the average age of Senators just sworn in last week is at least Social Security-eligible. I've been griping about this for quite a while, and I'm glad to see I've finally got company. Well, a little company, in that most Senators might as well be off just keeping their "bad habits" (and short workweeks).
• I'm firmly against the draft, but it's like both Dracula and a Cyberdyne Systems Model 101 it (or at least advocacy of it) keeps coming back. Peace Corps veteran Jonathan Zimmerman is here rather overdoing it, though.

  We don't need the entire nation to engage in national service. For one thing, that's a rather fast path toward devaluing an awful lot of jobs that are far more complex to do well than one can train draftees to do. It's one thing to say "build roads" (or even just "fill potholes") with some vision of creating the Transcontinental Railroad with slightly updated materials in mind; it's another entirely to do so safely, effectively, and with few side effects. Rather than reinstating the draft, I propose something a bit more… targeted: Appearance on a ballot for a state or federal legislative or executive (or, hackcoughshouldn'tbeelected judicial) office should require prior satisfactory completion of national service (and, of course, the Peace Corps counts, among many other "nontraditional" roles). That might, at minimum, provide some appropriate — arguably essential in a democratic republic — insight into some of those who don't have much in common with candidates for high office.

• Being a (nonuniformed) lawyer, however, isn't one of them. For example, just consider how much "service" to the nation as a whole was actually being provided by the lawyers in this fiasco. Or this one. Leaving aside that these two matters demonstrate yet again that states are incapable of effectively regulating the legal profession, I find myself unable to distinguish the conduct of counsel in these matters from that of counsel related to the attempted coup on 06 Jan 2021. Oh, wait, many them — including one of the most egregious — weren't disciplined either…

[fade out and static]

…yet.

The 2024 Turkey Awards

An annual tradition for a quarter of a century! This is my list of ridiculous people from 2024 (so far). Pass me one of those rolls, please:

• The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to advocates of "open AI" who are carefully ignoring that they're running Eliza on processors, memory, storage systems, an peripherals from displays to input devices all considerably more advanced than real AI conceived at roughly the same time — with the same sort of hallucinations and bullshitting, like in the clip.
• The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to the major-party candidates for President — not excluding the last-second replacement. My generation needs to get off the ballot (and doubly so for its predecessors), and especially out of the smoke-filled back rooms that act as gatekeepers on who can get a party endorsement in the first place. During an era of accelerating change, "old and wise" is usually PR bullshit for "decrepit, ignorant, and slow to adapt."
• The Broken Wishbone Award for shattering dreams goes to everyone excoriated here on 23 May. Unfortunately, it's probably too many miscreants to actually get a grip on that wishbone.
• The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to McZorgle's for its latest trademark overreach (with an unexpectedly delicious result).
• The Conspicuous Consumption Cranberry Relish Award for the most-outrageous example thereof goes to the 0.001% with their purchase of politicians everywhere. This isn't exactly new — politicians have always been for sale, or at least long-term lease — but, surprisingly, it's even more outrageous than overpriced artwork "originals" this year.
• The Crabapple Pie Award for marketing something sour as something sweet goes to Moms for Theocracy Liberty and their demand to be treated like and have the powers of the government while ignoring core limitations on government (like accountability).
• The Wilted Salad Award for the one part of the meal that's supposed to be "good for you," but is instead rather past its sell-by date, goes to Robert F. Kennedy… Junior. His only apparent qualification for office is his surname (and even that family of loyalists has repudiated him). Not to mention fluoridation, Mandrake — and he's just as well-balanced and fact-oriented as BG Ripper (and equally likely to attack the wrong target for the wrong reasons).
• The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to everyone involved in the struggle to control Paramount, none of whom actually have had a damned thing to do with building that monstrosity (let alone with any creative decisions).
• The Dried-Out Breastmeat Award for overcooking the books goes to my friends across the lake who are convinced they can speed up publishing by naming their new imprint and process after a microprocessor suitable primarily for primitive games. At least they didn't name it after the processor that was foundation of their company's operating-system success — a processor that was intentionally crippled. Meanwhile, it wasn't the processor at all that ultimately mattered (the Motorola 68xx and 68xxx series were both considerably superior to their Intel counterparts), but the software, peripherals, price points, and above all the documentation and training. Why, no, of course I'm not suggesting any parallels there.
• The Rancid Drumstick Award for something that should be edible, but isn't, goes to state-level bar regulators whose (inept) efforts destroy public confidence in the courts and legal system. Do you need a few more examples? Damn, there are more legs stuck out than on a terducken made of a cuttlefish stuffed inside an octupus stuffed inside a squid — hiding behind a cloud of ink…
• The GMO Tofurkey Roast Award for a main-dish item that's supposed to be more wholesome, nutritious, and/or ethical, but merely hides something that's perhaps worse under that veneer of virtue, goes to the Heritage Foundation, which begins the deceptions with its very name (if nothing else, by denying the role of slavery and plutocracy in America's "states' rights" heritage).
• The Unwanted Obligatory Guest Award for the guest at the banquet that you had to invite (but wish you didn't have to because you knew would spoil everything) goes to El0n Mu5k for more reasons than I can list here. His immigration to the US as an opportunistic draft-dodger from a shithole country (without respecting admittedly ridiculous visa restrictions that by their nature select for anyone but the tired, the poor, the wretched refuse of teeming shores) is just the start.
• Special Limited Time Offer! The Uninspected-Produce E. Coli Baby Carrot Medley Award for discrediting an office goes to Matt Gaetz, whose only qualification to fulfille the duties of the office he was nominated for (and, for that matter, the office that he had) was undue familiarity with the concept of "barely legal" (see 18 U.S.C. § 2421 et seq.; see also Fla. Stat. § 794.05). Notwithstanding his denials, there's enough other evidence to infer squickiness, regardless of whether that evidence meets the criminal standard of proof (that is, beyond a reasonable doubt). It's pretty obvious that the individual who nominated him prepared this dish didn't wash the produce or his hands, and I'm afraid this contaminated dish is making me sick to my stomach.

Looks like there wasn't enough room on the buffet table this year for pets from Springfield, which is probably just as well — we're going to be stuck with that guy for a loooooooooong time, maybe even long enough to move up from the kids' table. Maybe next year he can be the Unwanted Obligatory Guest… almost certainly by 2028.

The Sound of One Shoe Dropping

A very floppy clown shoe, as the first — and almost certainly not the last — of Our Once-and-Future Dear Leader's nominees¹ for Senate-confirmable offices of the United States² ignominiously, and rather ungracefully, withdraws before there's even a schedule for a potentially embarrassing Senate committee hearing. This leaves the rather frightening question of whether the next DoJ clown nominated will be Pennywise. Who, at least, dressed the part.

This is even worse than last time around. That (IMNSHO eminently unsuitable) individual actually went through the hearings, actually got confirmed, and actually served a whole 22 days in office! Which beat my prediction by about 75 days or so.³

It almost certainly won't be the last utter "failed nomination." I bet that some casino in Vegas already has a betting pool with multiple side bets equivalent to whether the first kickoff of the game will be run back for a touchdown. Fortunately, Teh Orange One has already telegraphed one potential replacement; if the current nominee for HHS withdraws, or fails of confirmation, or resigns quickly, there's already been mention of an eminently suitable replacement. Plus, as a bonus, Boomers and Pre-Boomers probably remember mom's demand to "eat your liver, it's good for you," so there's already an "improve public health" aspect of that nomination! Unfortunately, the appropriate accompanying wine would be subject to the promised tariffs on imported goods; nobody really likes fava beans; and if we tried to avoid import duties, extra rare is usually a poor choice with American lamb chops (which generally are best between rare and medium rare).

One wonders how many floppy clown shoes dropping will begin to echo like the heels of jackboots; we'll probably get a hint when we see who is actually nominated in Gaetz's place. For the present, though, one wonders if Herr Garbitsch is in charge of vetting nominees…

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1. Technically only "designees" because no nomination can actually be submitted until at earliest Congress reconvenes on 03 January 2025, and arguably not until 20 January 2025. But everyone is using the shorthand "nominee," so objecting is a lost battle; and however fond of those I've been over the years, I have to prioritize them and this one just isn't important enough. Besides, "windmills" are themselves non-fossil-fuel alternative energy, and thus disfavored by the incoming administration…
2. Cf. 5 U.S.C. § 3331.
3. I have witnesses to my reaction upon the announcement of his designation that he wouldn't make it past April; I had my reasons…

Interrupted Afternoon

Listen, you idiots: I got my ballot a week and a half ago; I took it, properly filled out, to a drop box almost immediately; I posted an "I Voted" sticker on the door. Don't waste your time sending FKAs (Future Karens of America) around to ring my doorbell to convince me to vote for a "tax cut" referendum sponsored by a hedge-fund trader who moved to this no-state-income-tax state from a high-state-income-tax state after his fortune became self-sustaining. Neither cool nor productive. And definitely annoying.

• There's a contamination outbreak at McDonald's in progress. I'm not going to bother trying to keep up with current status — it's not being hidden — but I will speculate on the cause: Untrained workers who know nothing of food hygeine.
• Recently, some assertions have been raised by people with better direct access to certain facts than I concerning a certain candidate's mental fitness for office. <SARCASM> I question whether there's been sufficient examination of the subject individual to distinguish between DSM-5 301.81 (Narcissistic Personality Disorder) overlaid with sociopathic behavior and DSM-5 301.7 (Sociopathic Personality Disorder) overlaid with narcissistic behavior. </SARCASM> Meanwhile, he's also been accused of being a fascist, which is not entirely consistent with that nonclinical diagnosis; "fascism" is both methodological and ideological, and a true narcissist (or sociopath) doesn't look far enough beyond personal self-interest/self-aggrandizement to have a coherent ideology, let alone be consistent with it.

  On the other hand, this is all too similar to disputing which serial killer is the most despicable with choices limited to Jeffrey Dahmer, Ted Bundy, and Gary Ridgway. Once "serial killer" fits, degree of despicability is largely irrelevant. Once "unfit for office" fits, the exact reason among competing explanations is largely irrelevant. Although since I already voted, maybe nobody cares what I think.

• As yet another demonstration that state bars cannot effectively regulate the profession, the Washington bar has refused to discipline disgrace-to-the-profession Matt Shea. Whether one agrees or disagrees with his views, it's fundamental to the profession to neither violate an oath of office nor advocate violence in support of those views (especially when the two occur together) — and the presence or absence of criminal charges is irrelevant except as it goes to the reliability of the evidence at issue and perhaps — albeit not in this instance, as the bar relied upon in refusing to implement a disciplinary action — interference with pending process. There are times that violence may be the only means available — but that's never true for lawyers. Except, perhaps, the violence the profession does to language (which does not require military-grade automatic weapons or advocating atrocities).
• Sadly, that appears more effective than regulation of insurers (especially when the insurers collude with each other). Profiting from others' pain is just so admirable.
• On the lighter side — not literally, indeed rather the opposite literally — the American invasion of Europe is progressing. The spearhead units are oversized pickup trucks (and suburban assault vehicles).

Calendar-Driven Link Sausage Platter

In three days, I'll be starting my quadrennial punishment by rewatching all of the most fantastical TV series to ever get seven full seasons on US broadcast TV: The West Wing. It's enjoyable in many senses, but simply not credible because everyone — even the (domestic) "bad guys" — believes in and struggles toward good government. Their differences are on policy or personality, or sometimes on method.

• I really wish that Leo's lament about the candidates on offer didn't reflect an improvement on the choices actually offered by the Внутрипартийные аппаратчики (regardless of Party label).¹ That one side would deny the validity of any election it doesn't win, would impose precisely the kind of authoritarianism cloaked in high rhetoric claiming "superior civilization" against which the Colonies revolted in the eighteenth century only makes that party the greater evil. (Not just here, either.) One must remember, always, that when one chooses the lesser evil… one is still choosing evil.
• It's not only public office that has election problems. At that, this year's Hugos (the misconceived poll-tax-encumbered, egregiously mistimed election for "best" works and achievements in speculative fiction) are a considerable improvement over last year's. But these are just amateurs: They got caught.
• That's almost an improvement over overt, intentional abuse of dispute resolution systems. That abuse might be negotiated treaties. It might be improper filings in courts that don't have jurisdiction (and know it). It might be attempts to impose dead-hand control contrary to a century (or more) of skepticism. It might just be inordinate, inexcusable delay (that would be entirely unnecessary if the US treated health care as being an enabling right and not a paid-for privilege).
• Oh, that's all much too gloomy. How about some music, carefully preselected for you? Naturally, while managers are busy stealing from the "artists" who followed those rules. Meanwhile, major corporations have trouble counting to three (oops, that was mass-market fashion, not music).

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1. No sour grapes here: I'm thoroughly unsuited for electoral politics.

Standard of Review

Justice Kagan has mused that perhaps — just perhaps — the Supreme Court's mild suggestions on ethics should be enforceable, and perhaps inquired into by a "special committee" of seasoned, respected lower-court judges. Naturally, the Mouth of Sauron the WSJ editorial board is vehemently opposed. This particular board includes not one lawyer (or even holder of a law degree who never practiced); not one individual who has ever been part of a corporation's special litigation committee evaluating a lawsuit (or personnel matter) involving conflicts of interest by one or more members of the full board; not one individual who has ever been part of an organization (such as, but far from only, the US military) with an effective, independent Inspector General system. They clearly don't understand that an IG, which is what Justice Kagan describes (albeit not by that name), doesn't make final decisions, but instead makes recommendations of varying strength based upon the facts discerned in particular incidents. But then, given the particular biases of the WSJ and its ownership, "credible, effective government" isn't their highest priority in the first place… and they don't understand "review and recommend" and how that actually reinforces the independence of decisionmakers (nor do they care).

I have reviewed and recommend extreme skepticism regarding Judge Ho's latest extrajudicial attempt to claim victimhood — but that's all it is. Whether his remarks call into question his ability to be unquestionably impartial on matters raising issues that he has ideologically, umm, prejudged is not for me to decide; it is, however, for me to suggest that the stated factual record does not support his conclusion, particularly when it includes all of the data from the lab (let alone evidence gathered in the field).

Oops. I think I've just betrayed my own decisional framework: That when the data either fails to support prevailing decisional frameworks or even outright undermines them, continued unthinking reliance on those prevailing decisional frameworks is unjustified. Is theocratic. Is downright stupid. The scientific method cannot determine all decisions in human affairs; that way lies strictly numeric, non-context-sensitive "solutions" to the Trolley Problem (that neglect what the Trolley Problem does to those not in the frame, particularly the driver whose trolley has been diverted onto that track, not to mention the maintenance guys who know damned well that parts fail and blame themselves when they do). It's a bit of a chicken-and-egg problem: Determining what data matters requires some reference to decisional frameworks, like accepting that it's the feather's nonzero mass and local gravity that determine how quickly it will fall in a vacuum and not its color or species of origin or, well, featherness.

Too much decisional ideology, however, pays a lot more attention to the beautiful plumage of the Norwegian Blue than it does the bird's life status. That pathway leads to self-inflicted wounds based on the bigotry of (in-practice-unreviewable) decisionmakers.¹ And that brings us back to Justice Kagan's suggestion that appointed-for-life-on-good-behavior members of the otherwise-unreviewable court should be subject to some review short of the high crimes and misdemeanors that lead to impeachment. The precise mechanism will matter to merits and workability, but the concept is sound, particularly in a context in which judges in general do not recuse enough (let alone clearly).

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1. We shall leave for another time the self-reinforcing structures that both put unsuitable persons in those roles and exclude the Other (however well suited). Not that I'm also questioning overreliance on three or four law schools as comparable to overreliance on two (now three) military academies or anything like that, or questioning how prior stovepiping of candidates when they're 18 (or 21) can be counterproductive when considering actual decisionmaking in their fifties and sixties. Or how that early judgment of potential presumes a good basis for that judgment and the suitability of those doing the judging to do so. Oh, wait, maybe I am…

Suboptimal Reality Orientation

Any discussion of what "optimal" would look like is for another time. So, too, is the difference between "initial perception" and "desired/actually achieved result," which rather unites these sausages.

• Sometimes the minutiae of corporate accounting overwhelms everything else about a company. This can most obviously arise from major mergers and acquisitions, either overtly due to mispricing and misvaluation or more subtly from reverse cultural imperialism. The key commonality in both instances is the malign influence not of the particulars of Dodge v. Ford, but the failure to examine what "shareholder wealth maximization" actually means — and over what time period. Year-over-year results (whether used to set securities prices or management compensation) just don't make a lot of sense for projects that by their very nature have decade-long development cycles before their success or failure can be adjudged, and it's even more nonsensical when to the end-user that item is not obtained/used for "profit" (or anything resembling "wealth maximization").

  Application of this concept to the ongoing and future Paramount fiasco is left as an exercise for the student — and the shareholder-litigation partners at white-shoe law firms. None of whom will reflect on the difference between "wealth maximization" and "immediate gratification of impulsive greed."

• With all due respect, General Olson, you've gotten the problem almost exactly backward. The difficulty is not with excessive demands for recusal of judges who have picayune, attenuated financial interests in a matter that might appear before them. It is, instead, with the difficulty of removing judges who won't give a fair, on-the-facts hearing to a matter due to extralegal ideological prejudice… and the difficulty of finding a suitable replacement judge who will, given partisan appointment processes (federal and state, appellate and trial, literally appointed and elected). Even the specific mischaracterized example cited by General Olson in his opinion piece reflects the problem: Judge Willett's writings, both judicial and extrajudicial, reflect fundamental animus against the very purpose and existence of the subject agency, such that a reasonable person might question his impartiality. In practice, however, that is not the standard; instead, actually obtaining recusal virtually requires finding an "adverse financial interest."

  The irony that a standard — perhaps not a rule, as family members can't be directly subjected to it — that judges shall place all of their investments into either a blind trust or an index fund, together with some relief from forced-sale tax consequences, would pretermit most of these arguments has escaped almost everyone. Then, it would undermine the "I'm smarter than the Average Investor" perception, too… even though both history and math demonstrate otherwise (absent insider knowledge of precisely the kind that would cause a reasonable person to question impartiality).

• It's election season, so I suppose I have to acknowledge various bloviations. Citizenship and immigration (and hence voter eligibility) is an obvious one, especially when cranked far to the right via fact-free racial and ethnic proxies. (Why yes, I am making an accusation here. Go ahead: Sue me.) It could, of course, be worse — as one candidate for the Big Job at present would make it. <SARCASM> Maybe we should just send all of the white people back where they came from, because they're all descendants of immigrants. </SARCASM>

  Far more disturbing, though, is the utter failure to consider what "representative democracy" is in continued whingeing over how to declare victory that ultimately assumes that the prejudices expressed by a candidate cannot be changed by persuasion and facts, even as to unanticipated and/or peripheral matters, once in office. That is, that loyalty to a faction (closely resembling theocratic reasoning) necessarily overcomes reality every time. Perhaps that explains the overt factionalism and inability to bloody listen that is even more apparent in parliamentary systems (prevalent in Europe) than divided-executive systems (the US, and only a few other examples). Devices like the so-called Hastert Rule further mask the problem, preventing even debate and persuasion — the very core of representative democracy (at least among those who know how much they don't know, eschewing the theocratic impulse).

• If that's not depressing enough, go bomb hospitals (sadly, elsewhere too) in furtherance of the worst impulses (and routine practices) of Stalin, the Gang of Four, Pinochet, and Big Brother. Or maybe that's Nixon's list of enemies for the 21st century; unfortunately, I'm nowhere near prominent enough to be included, although my non-film-based Bacon number to some who no doubt are is not more than two…

Get Off My Lawn!

Two days from now, we'll have a lying contest in which one of the contestants has multiple felony convictions for not lying well enough…

• It's not entirely my generation's fault that Thursday night will epitomize Hobson's Choice. Just mostly. Bluntly, it's my generation that is now (and has been this century) controlling the smoke-filled back rooms, at least to the extent that within each party no candidate viewed as actually dangerous or transformative has a chance of getting approved. And won't give up that control, or even effectively train successors. That's right: The party leaderships are selfish old sheep with all of the foresight of, well, sheep.

  The civil rights era became electorally possible due to an awful outside influence: The forced exposure to, and often demise in, the rest of the world of Establishment figures (or at least family members) in the Second Thirty Years' War. That forced the Establishment of the 50s and early 60s to share actual responsibility and power with the kids… who have refused to do so themselves. Combine that with medical advances enabling a greater proportion of us old farts to maintain visible activity levels, and the consequences are pretty dire and pretty obvious.

  My contempt for my "betters" in my generation (and the one preceding) comes from knowing too many of them… and hearing them express themselves in unguarded moments while thoroughly camouflaged. Sometimes not so camouflaged, either.

• Criminal sentencing is hard. The offense is what gets the conviction in the first place; the sentence, however, is upon an individual. Since I wasn't in the courtroom, didn't hear the evidence, etc., etc., etc., I can't go too far in substituting my judgment for Judge Kendall's regarding business as usual in Chicago politics. (When the Trib implicitly criticizes seeming leniency regarding Illinois party Establishment — either party — you know things are really chaotic.) The fundamental problem is that the sentencing options available did not/do not include anything likely to be truly effective… which in the end would probably be worse. Although I really do think they should now (and should have a decade ago when the recordings became public) take away his law license.
• Speaking of things that essentially reduce to "personal self-aggrandizement as an excuse for bad faith," consider the related problems of bad faith in trademark applications and enforcement and large-language-model shenanigans. Both concern disrespect for others' rights — sometimes through intentional ignorance, sometimes through intentional devaluation — implemented through bullying and exploitation of unequal original positions, through forgetting the word that comes before "self-interest" (and completely forgetting the context and intent of Adam Smith's works of moral philosophy that have been appropriated by those who largely haven't read them). Like bankers.
• All of which pales compared to foolishness in the world's largest "democracy" that makes America First look benign. Over Here — despite the best efforts of various entitled bigots, such as the most-virulent antiimmigration activists (virtually none of whom have any native ancestry) — we've largely grown out of imprisoning those who question basic assumptions, at least in the last century, since rejecting sedition as a criminal offense. Oh, that pesky First Amendment hiding an anti-science agenda put forth by/in support of nonscientists…
• …leading directly into failure in the arts, like finding selling one's paintings truly challenging. Of course, the definition of "fail" matters an awful lot!

More of an FM Vibe

Not the Steely Dan piece, either.

• There's a pending "controversy" about whether AM radios should continue to be required in cars. Leaving aside the more-than-faint echo of buggywhip manufacturers, there's an interesting irony here. On the one hand, the op-ed "contributor" is affiliated with a relentlessly pseudo-free-market, right-wing-tinged "policy institute" that is extremely friendly to two constituencies that distinctly benefit from AM radio: Right-wing controlled-by-descendants-of-the-founder-without-any-competition Sinclair Broadcasting, and right-wing talk radio shows (especially those west of the Appalachians). Troubling how one's principles can get in the way of loyalty to one's friends and patrons, isn't it?
• Turning to piracy of manga rather than piracy of the airwaves, the District Court in Tokyo imposed a ¥1.7 billion (US$11 million) penalty on a pirate website's operators. This is interesting for two reasons. First, unlike in the US, evading such a penalty through bankruptcy proceedings will be virtually impossible — it's merely complex in the US, but certainly achievable. Second, it's interesting that the court imposed a penalty based not upon "lost profits" but upon "lost revenues" — a measurement almost impossible to achieve in the US, especially given the "long discount" and typical court offsetting of costs avoided. Harlan is cheering the court on from beyond the grave — which rather sounds like a story he might have written…
• That was "just" piracy, not outright fraud. "Fraud" of this nature — given who the "victims" are — has me playing a sad lament on the world's tiniest violin (and wishing that some of the money went to the artists); a little later, that lament will evolve into a folk dance, perhaps even a tarantella. It also has me shaking my head at the primitive-magic aspects of "the original" subscribed to by the denizens of self-proclaimed fine art, and suggesting that the exclusivity of trading only in "the original" is precisely what made the fraud possible… and determined the particular victims.

  It's worth pondering what this scheme might have looked like if we were talking, instead, about "the original manuscript." Leaving aside any editorial contributions — or more than merely "contributions" — a reader gets the same authentic Experience from a mass-market paperback as from the longhand/typewritten/word-processed manuscript. Indeed, the typography and design of a printed edition are almost certainly better, and one can read a printed book on an airplane or holding it in one hand (not to mention e-books).

• A seemingly abstract legal issue also exposes a hypocrisy in litigation (surprise — it's only one of many). Most contracts these days have a forum selection clause, frequently putting the matter in the home court of the more-powerful party. Many publishing contracts require that (serial numbers filed off)

  Any action or proceeding regarding this Agreement or the Work shall be brought solely in the New York courts (state or federal) in New York County.

  or similar language — even for publishers not located in New York. One of the rationales most often stated is that the judges (and lawyers!) in the selected forum are "more familiar with" and even "expert in" the particular kinds of disputes. This, however, contradicts the "generalist judge" and "nonspecialist lawyer" memes of American law practice, and rather exposes the hypocrisy… and not-invented-here syndrome (go ahead and check the Second Circuit's track record in copyright matters before the Supreme Court, and for that matter in Congressional hearings and with the United States Trade Representative, since the 1976 Act came into effect — it's worse than the purportedly out-of-step Ninth Circuit in criminal law and civil rights!). In this, I envy full-bore patent lawyers a bit — at least their appeals are to a specialist court, where the judges more-probably-than-not can accurately pronounce "sphygmomanometer" and "D-lysergic acid diethylamide," not to mention understand the difference between a decimal and a binary megabyte.

• At least rising sea levels won't directly impair Swiss citizens who obtained a ruling that their human rights were violated by government inaction on climate change from the European Court for Human Rights.

"My Dad Can Beat Up Your Little Sister"

…seems to be the theme of A Certain Candidate for Office's attacks on the families of judges who are charged with hearing cases against him. This sort of nonsense has several unsavoury aspects:

• If there's a response — whether by the actual target (the judge) or merely the stated one (the family member(s) named in the attacks) — that will be used by That Candidate's counsel, with dubious ethics, and That Candidate's apparatchiks, who couldn't spell "ethics" except perhaps as "зтика" (sorry, I'm rusty), as shrieking and ultimately irrelevant grounds for a recusal motion against the judge.
• If there's no response, the worst of the apparatchiks and assorted hangers-on will take that as irrefutable proof of the truthiness of the attacks.
• Regardless of the response, it will prove that That Candidate, and especially That Candidate's dad, has/had far more money. Regardless of the legality of that money (irony alert — that's precisely what more than one of these proceedings concerns).
• It's That Candidate's First Amendment right to say anything he damned well pleases, regardless of its factual foundation. But if anyone else says anything disrespectful — like, say, pointing out that That Candidate is descended from undocumented immigrants — that's a vicious libel that cannot be tolerated. Not to mention the family tradition of dodging the draft…

So go ahead, Certain Candidate. Show us all exactly what a fourth-grade bully looks like, and acts like, and thinks like. When, that is, a fourth-grade bully does any thinking at all.

Poisoning iPads in the Park

Spring is here
Spring is here
Life is skittles
And life is beer…

Oh, it's not Spring until next week? Can't tell that from the non-Seattle weather today, although there's no need for air conditioning.

• I'll start off with something noncontroversial, like potential enforcement of civil rights in the courts and doing away with consent searches because they don't work and they're discriminatory. I think this is something I've commented on before (although these days, none of my best friends are white men in suits).

  OK, I lied. That's not noncontroversial at all. It bloody well should be, but it isn't.

• Ed Burke remains a lawyer — as a convicted felon who spent decades abusing his office (among other white-collar offenses), he's now qualified to be the Governor of the State of Illinois. At least this time the ARDC actually took recommended action less than a decade after the felony conviction (conviction after impeachment is a felony, especially when it's all but unanimous as it was for Blago). So, so sad that the elected State Supreme Court couldn't get a nonconflicted quorum to deal with another elected official. That's a big hint about both "state regulation of lawyers" and "elected judiciary"…
• For a slightly one-sided (and dismissive of some critical historical context) but nonetheless vastly more perceptive view of one barrier to peace in the Levant: The Palestinian population is only treated as "Arabic" when it's politically advantageous. We won't get into the outright racism and bigotry behind the Balfour Declaration — the flip side, in which the white Christian European powers broke up the Ottoman Empire for their own advantage (and to get the Jews out of town a century ago, too!). Oops, I just did…

  This set of complications is one reason I don't favor a two-state solution, with some version of the Radcliffe Line (<SARCASM> which has led to no problems whatsoever in the last 75 years </SARCASM>). I favor a zero-state solution; once outside powers draw lines based on religion and/or "race," failed states are inevitable in the fairly near future.

• Sometimes Ikea isn't just about swearing at the assembly instructions. Now that may seem of little interest to authors (at least not once they've put together that new desk, which is still necessary even in the age of e-book reference libraries), but it really does — especially regarding bullying by markholders. <SARCASM> But creative people don't need to worry about that at all (PDF). </SARCASM>
• Speaking of "big box stores," thought, consider the plight of the all-'murikan department store. Schade (especially given the history of union-busting, consumer deception and other unfair trade practices, and insider looting).

Literacy Barriers

It's been ten days now, so I think I'm sufficiently calmed down to not bring shame and disgrace on the legal profession with excessively intemperate comments on a recent decision. Frankly, the combination of the decision and circumstances leading to it does that all by itself. Before I go any farther, though:

disclosure: The following discussion concerns a litigant and law firm, but not specific counsel, with whom I have had prior unpleasant dealings in other contexts. No names have been changed to protect the SOBs; and I'd be really, really pissed off anyway.

The United States Court of Appeals for the Federal Circuit has just rather definitively demonstrated why, and how, one cannot meaningfully delegate regulation of attorney conduct entirely to courts. And this really is about ethics; there were sanctions at issue.

On 16 February, the CAFC issued two precedential determinations in a dispute regarding a telecommunications/information-transmission patent. The substantive decision (PDF) is somewhat interesting, somewhat overtechnical as to both the law and the subject matter, and doesn't on its face concern attorney misconduct or ethics.¹ But, simultaneously, the CAFC issued a precedential order regarding

show[ing] cause why Counsel/Appellee should not be sanctioned for attempting to incorporate by reference multiple pages of argument from the brief in one case into another.

Promptu Sys. Corp. v. Comcast Cable Comms., llc, No. 2022–1093 (Order Discharging OSC) (Fed. Cir. 16 Feb 2024), slip op. at 2. As the Court continued thereafter:

We have repeatedly held that incorporating argument by reference “cannot be used to exceed word count.” Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014); see also Medtronic, Inc. v. Teleflex Life Sciences Ltd., 86 F.4th 902, 906–07 (Fed. Cir. 2023). It is “fundamentally unfair to allow a party to use incorporation to exceed word count.” Microsoft, 755 F.3d at 910. That is exactly what would have occurred here had Appellee been allowed to incorporate by reference almost 2,000 words from a brief in a separate case—exceeding the total word count for its response brief in case 22-1093 by more than 1,300 words.

•  •  •  •

Counsel argued that he and Appellee were unaware of our decision in Microsoft until Appellant’s Reply Brief was filed, Show Cause Br. at 3, and had they been aware, they would not have included the incorporation by reference, id. at 4. Microsoft is not only a precedential decision of this Court, but a precedential decision of this Court that admonished the exact same law firm before us now for the exact same behavior. We accept as true Counsel’s claim that he was not aware of the Microsoft decision until the Reply Brief referenced it. When it becomes apparent that a lawyer has violated a court rule, as an officer of the court, it would be best for that lawyer to bring it to the court’s attention and withdraw the improper argument. Here, Appellee was made aware of our case law, but chose to do nothing.

Id., slip op. at 2–3 (hyperlinks added).

So why does this matter? Here, I'm afraid, the CAFC made a critical rhetorical error: It failed to cite the rule establishing the word-count limitation. Federal appellate briefs are limited to 13,000 words (Fed. R. App. Proc. 32(a)(7)(B)(i) (as amended 01 Dec. 2019). Editorially, this is too little, especially in fact-intensive circumstances like patent disputes; but, just like the speed of light and 1970s-gas-saving-55mph, whether it's a good idea is not at issue — it's the law.² Indeed, the CAFC cites only to a different rule, regarding "incorporation by reference." Instead, it should have cited both…

…but that would have made the fundamental error and misconduct by experienced counsel at a "white shoe" law firm that had been the subject of one of the precedential opinions rejecting this litigation conduct unavoidably obvious.³ It wasn't just erroneous briefing conduct, but the claimed ignorance.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Mod. R. Prof. Cond. 1.1.⁴ I submit that "reading the rules of the court to which one is submitting a brief," and further "reading prior opinions admonishing one's own law firm regarding the rules of the court to which one is submitting a brief," falls so far within the core of "legal knowledge, skill, thoroughness[,] and preparation" that it is not subject to question.

But this leads directly to the much-more-serious, second-order/collateral damage implication. Why would an experienced appellate attorney be "unaware" of prohibitions on cross-references?⁵ Worse yet, why did no one on the team bring the matter to this attorney's attention? Surely some associate was tasked to double-check quirks; that would, after all, be at least 0.3 or 0.4 billable hours! Leaving aside my dark suspicions (see the disclosure at the top), this points directly to why regulation of attorney conduct cannot be delegated completely to courts. Courts do not have the authority, power, ability, or motivation to change law firm culture — especially not when it extends across multiple firms and the entire billing-culture meme. Those 0.3 or 0.4 billable hours would have been challenged by the client; and, due to "billable hours" pressures across all of "big law" (and especially at white-shoe firms like the one involved here) the associate would instead scurry off trying to bill 2600 hours⁶ in a way that wouldn't be challenged.

But all of that is inference — astoundingly irritated inference from subject-matter knowledge (but not detailed factual investigation) that required a week to tone this screed down to the point that it wouldn't damage your monitor/phone. It also implicates, a bit, the "there but for the grace of [insert deity] go I" problem with specific judges being responsible for regulating the conduct of attorneys they've seen before and will see again — because even when the conduct smacks the judge in the face, there's still that "familiarity" issue.⁷

This will not be the last time. Guaranteed.

---

1. OK, at a different level, maybe it is. But it didn't involve an order to show cause regarding sanctions, "just" errors in claim construction by the trial court that proved outcome-determinative below. <SARCASM> There's no possibility of misconduct at all. By anyone… not excluding the attorneys who prosecuted a patent concerning "speech recognition services to a collection of users over a network that supports cable television and/or video delivery." Id., slip op. at 2, quoting U.S. Pat. No. 7047196.</SARCASM>

   And as a further editorial comment, I wish that all judicial opinions regarding patent validity would state the effective date of the application, which would clarify what law(s) might apply… and, to those who actually know the respective fields, just exactly how dubious the assertions of what the "prior art" and "inventive motivation" might have been. Both go directly to the credibility of the opinions, and in particular to ensuring that those who are potentially regulated can understand the law's requirements. This would require no change in law; it would require only that the courts add even a single parenthetical like "(App. Feb. 16, 2001)".

2. Which, upon motion, can be increased if a particular matter requires it and counsel can persuasively articulate specific reasons (not just "I'm arrogant, verbose, and will gladly talk the ears off all the corn in Iowa," because that's rather the default in BigLaw). The dockets in these four appeals do not, however, disclose any such motion. Perhaps no such motion was made because courts, both federal and state, express reluctance to grant them; the gander, however, remains unsauced given the verbosity of many judicial opinions (which are not written under the kinds of deadlines imposed on the appellate lawyers). To only slightly mangle a phrase, "Regulated speech-length for thee but not for me."

   The irony that counsel may have been incentivized to find another way to incorporate more verbiage by the 2019 reduction in word count for a principal brief — from 14,000 to 13,000 (and the Federal Circuit here notes that it was a "2,000 word" incorporation by reference that would have exceeded the "old" rule by about 300 words, slip op. at 2) — also bears some other consideration. Maybe, just maybe, that reduction was a bad idea, especially since it (needlessly IMNSHO) encourages both inadequate detail in the "statement of facts" and "statement of the case" and, well, shenanigans like this.

3. This is not the first time this shark has encountered "palpable ignorance as a rationale to avoid sanctions" protestations from white-shoe law firms. One of the individual miscreants in one of those incidents continues to give continuing legal education presentations on the underlying issue(s) and has been frequently quoted in the not-precisely-proprietary-but-definitely-not-generally-available "legal newspapers" on this subject. It reflects a fundamental problem with legal ethics: The standards are too low, and lawyers tend to live down to them. Even — perhaps especially — purported leaders of the profession.
4. This rule is substantively identical in the relevant jurisdictions (DC, New York, and Virginia). I've quoted the ABA "model" version because it's substantively identical everywhere else, too.
5. Or, for that matter, a "sophisticated" client, and in particular this one, which has an in-house legal department with a metric boatload of lawyers and has had thousands of federal appellate briefs submitted on its behalf — hell, it has had at least twenty appellate briefs submitted on its behalf to this court since the Microsoft decision in 2014, several relating not to this patent but to the subject matter of this patent (voice recognition systems and implementation). Inferring client knowledge and approval is not unwarranted, albeit at this stage neither supported nor refuted by evidence… which would probably be undiscoverable as privileged anyway.
6. For those doing the math at home, that's not 2600 hours worked during the year, but billed — that is, billing out 50 hours a week directly to clients. Time spent in firm meetings, and doing recruiting and interviewing of prospective hires, and getting continuing education, and doing general-awareness reading, and researching a matter only to discover a conflict preventing any representation buried in the research, and doing pro bono work… don't count. The reason that big-firm lawyers shrivel up to ash if struck by sunlight is that the time spent exposed to sunlight isn't billable. Plus, ya know, the whole vampire thing.
7. One might well question exactly how 28 U.S.C. § 455(b)(1) does, or should, apply when what's under consideration is not "a party" but "a party's lawyer's in-court conduct." Here, I think there's an infinitely-reflexive self-awareness problem warned against extensively in my first profession and entirely ignored in my second. "Trust, but verify" requires that "verification" both occur… and be independent and credible. Not to mention that "trust" be credible in the first instance (we are dealing with lawyers here…).

Nonconsensus Link Sausage Platter

This platter of link sausages has been thoroughly p-hacked because I'm making an ideological point.

• We just can't seem to get away from the malign influence of eighteenth-century English privilege as expressed in not just the common law, but in particular aspects of it. Despite the US having the First Amendment — which, for all of its problems, seems superior to the conceivable alternatives, and certainly to those actually implemented anywhere — the English system still acts to suppress speech… even from Americans that would be allowable, and even encouraged, Over Here (notwithstanding ex post amelioration of adverse foreign judgments concerning that very type of speech).

  Even former colonies overtly hostile to England are in on it. The upper classes and ultra-nouveau-rich are being quite effective at maintaining parts of the colonial systems that benefit them. What that implies about how much they really have separated themselves from the colonial system is rather disturbing.

• Then there's the eternal question faced by dissenters within a government: How many wrongs make it right? More to the point, how many of those convinced that the wrongs they are engaging in create an on-balance right are prepared to pay the price… especially when that price rises to the level of lives, fortunes, and sacred honor? (Consideration of the current unpleasantness in Gaza in this context is for another time and forum.)
• Not this (dysfunctional) forum, however. With all due respect to Mr Wolfe, he has missed the forest of "who has a credible professional platform concerning interpreting not just the Constitution, but all law?" for the trees of "who should sit on this particular court?" This dataset bias problem is restriction of the pool of future Supreme Court justices, and most other judges, by not later than the third undergraduate year… when, prior to the 26th Amendment, they weren't even eligible to vote. This is a restriction in practice and effect through the law-school admission process: The vast majority of judges (and all potential Supreme Court justices nominated since the Depression-era "switch in time that by effect, if not necessarily by intent, changed a fundamental assumption in Supreme Court litigation) went straight from their undergraduate educations to law school — and law-school admission decisions (and financial-aid decisions), especially since draft deferment to keep away from Vietnam became a "thing," very mechanically sort opportunities on undergraduate GPA as of the fall-of-the-senior-year application period. Even the NFL does a better job of not relying solely upon seventeen-year-old five-star recruits to college teams for its future on-field leaders than does the law.
• All of the above feed into the impulse to make all decisions seem "objective," often through reasoning based on purported algorithms. There's a fundamental problem with doing so: Distorted datasets. Consider the coffee-shop design example in that article in the context of who is being excluded — by design — from the dataset upon which the algoritm operates. Obviously, non-coffee-drinkers (or, at least, those who don't drink tea either), and specifically non-Western-context coffee drinkers. There are also economic, health, and temporal biases in play — not just the excrutiatingly obvious "poverty line," but "wheelchair and other limited-mobility access" and "productive remote worker in another time zone" subpopulations that don't get into the dataset even as outliers.

  Why does this matter right now? Dewey Defeats Truman points the way — and so does my mail. Prerestriction of membership in datasets on the basis of presumed correlations, epitomized by my inability for four decades to get the various Heffalump fundraisers to remove me from their mailing lists as a "probable donor" because I was a commissioned officer, results in gathering data that will reinforce those very presumed correlations. (They obviously don't read this blawg, which is rather the point.) That's especially so when there's an unconsidered and intentional barrier to the data: I refuse to participate in "polling" because I not only value the secret ballot, but despise any candidate who will change his/her/their (fundamentally unreliable) campaign rhetoric to appeal to me Because Numbers and not Because Persuasion.

  It's not just for politics, either. Misuse of probabilistic analysis of flawed datasets influences what music reaches me without significant, well-above-"budget" effort, what art I might purchase (or even see, since museums follow a similar path), and — returning to the other end of this sausage — espresso versus other means of brewing coffee. Intentionally, and even accidentally, excluding outliers from the dataset means not just that the outliers won't be served, but that the "analysts" will not consider them. (Go ahead: Find a romantic ballad or personal-relationship revenge song fitting any "data-driven" hit-making model on one of the top few albums of all time.)

Dodgy Turkey Award Leftover Platter

Remember the Turkey Awards from three weeks ago? The universe appears to be offended that I jumped the gun on ridiculous people for the year. Fortunately, I always note "so far," but this is rather excessive — especially given how much these weeks-old leftovers are stinking up the 'fridge.

• Rudy "I Wouldn't Recognize 'Respect for Civil Servants' If It Whacked Me With a $150 Million Verdict in My Nonfunctioning Brain" Giuliani had a Very Bad Day yesterday. Because it did.

  For technical reasons, at least part of the punitive portion of the damages will more probably than not be remitted (reduced). Even if it all gets remitted, though, that leaves two clear impressions: That the Orange One's strategy of claiming that there really was election fraud is probably not going to impress any jury, and that in the grand tradition of New York Heffalumps Rudy G. should consider starting an OnlyFans performer account. OK, maybe not that last one.

• That was far from the most delicious slice of Schadenfreude Pie right-wing-nutjob-related legal news yesterday, though. Alex Jones — a conspiracy theorist with a huge… platform (obviously compensating for something else that's very, very small, and of course I'm referring to his intellect)… lost an appeal yesterday on a contempt citation for missing a deposition in the Sandy Hook defamation trial. As insensitive and unbelievable as Jones's bullshit was (and remains), his lawyer demonstrated that he's even more tone deaf than his client, proclaiming

  Norm Pattis, Jones’[s] lawyer, said that there is a good chance for an appeal of Friday’s ruling to the Supreme Court. "It’s a sad day when a court decides it can countermand a doctor’s orders. Wow," Pattis wrote in an email, according to the AP.

  (grammatical error and bullshit-journalistic-deceptive-paragraphing corrected) Completely dropping that slice of pie on the floor, though, there's one person I can think of who agrees with Pettis's objection, although the ideology and facts were rather reversed: Kate Cox. Best wishes to her anyway.

• It's starting to get into the preliminaries to months-too-early entertainment awards, especially in film. Thus, it's also time for yet another understated article on "nepo babies" that ignores the worst of them: The political nepo babies. It's one thing to cringe a little bit at entertainment-industry nepo babies who, over time, demonstrate some actual talent. Perhaps the nepo-baby aspect did unjustly, and to the detriment of artistic achievement, shove more-talented artists away. But that's nothing compared to Robert F. Kennedy, Jr., or George W. Bush, or Andrew Cuomo, or Richard M. Daley, or Marine Le Pen, or… And those aren't even hereditary officeholder assholes!
• But then, not all publicity is good publicity. I'd give a one-star review to the entire Goodreads pseudonymous-uncontrolled-"review" system, but then I'd just be accused of bombing something I never pay attention to anyway (the last time I actually read anything on Goodreads was over a decade ago, before the 'zon acquired it, so I'm not a Verified Purchaser).

  I'd make further snide remarks about how the ineptness of NYC-commercial-publishing marketing and publicity efforts — and most especially the cost-cutting demands that authors ordinarily must take over their own marketing and publicity — makes both this particular situation and many others inevitable. Or maybe it's just the combination of authorial egos and general disrespect for authors. (Unfortunately, that's an inadequate explanation because it's not just authors.)