Below Minimal Professional Regard

Taking a break from misanthropy today. Well, not really, just from the Anthropic settlement; recent events and announcements have more than justified disdain for at least certain segments of humanity — especially when they're not just tolerating, but celebrating, hypocrisy.

• From the all-too-densely-populated Department of Ignorant Politicians and Wannabes, there's an unusually ignorant screed from some asshole Texan "protector" of "Our Republican Legacy" at The Hill claiming about all Democratic Socialists that:

  [A]ny political candidate who supports essentially canceling the first three Articles in the Constitution cannot truthfully say he or she will support and defend the Constitution. To take the oath would be to commit perjury.

  Two obvious rejoinders:

  1. So, those who supported Amendments XIII, XIV, XV, XVII, XX, and XXII perjured themselves whenever they took the oath, right? Because those amendments — separately and together — cancelled significant elements of Articles I and II, and impliedly cancelled a part of Article III. They're called Amendments for a reason, and they're specifically contemplated in Article V.
  2. This ignorant screed provides no evidence — not even any specific identification of offending provisions — that any element of the "Democratic Socialist" purported "platform" linked within it does anything more than advocate policy changes accomplished inside the rubric of Articles I-III. There's nothing there relating to "an entirely new governing system." Not even an overreaching assertion that the stated policies would impinge on states' rights (which Amendments XII, XIV, XV, and XVII certainly did!) matters in light of Article VI cl. 2.

  I've come to expect this sort of narrowness, of inability to read a document as a whole, from theologians, politicians, and other cranks (not to mention waaaaaaaaaaaaaaaay too many lawyers). I invite Matthews to take his bloody Old Testament fundamentalism somewhere else… unless, that is, coming from archly Protestant Texas, he wants to emphasize the "Judeo-" part of "Judeo-Christian" and contend that later fundamental changes mandated by fundamental changes in conduct and nature of the population can never be discussed, let alone advocated. If that's his test, I'm happy to be an apostate. I've taken, reaffirmed, and exerted myself in support of that oath quite a few times; contrariwise, Matthews's semiofficial bio at the Federalist Society doesn't disclose that he has done any of that. <SARCASM> I therefore claim Greater Authority, all cynical misuse of methods of formal argument entirely intended and in parallel to those embedded in Matthews's screed.</SARCASM>

  The moment that "advocating for policy change" is equated with "disloyalty to basic values," we're back before HUAC and/or the Inquisition. How'd that turn out? Oh, wait, that both the subject screed and this response have reached our respective readers via electronic distribution has no dependence whatsoever on opposition to, and rejection of, theocratic statements of orthodoxy; there's nothing, after all, unorthodox as of 1947 about semiconductors.

• Speaking of bad lawyers and bad people, the technologically-challenged bar regulators in this state demonstrated that they couldn't supervise/test technology, or properly specify it, to enable the hazing ritual for pledges to Sigma Beta Alpha to go ahead. (And really: Yakima? In July? That's hazing in itself!)

  I call this a "hazing ritual" because the bar exam demonstrates precisely nothing about knowledge or fitness to practice law. At best, it's aimed at testing the ability to be a 1930s small-town "does everything" lawyer… and misses that mark badly. (Plus, you know, it's a century later and there are no more small-town "does everything" lawyers fresh out of law school.) The selection of subjects is at best inept, and more to the point not readily reducible to multiple-choice questions or short essays produced from sanitized fact patterns and not real clients. And at worst, both the questions and answer choices/expected "essay" answers are several years out of date, and insensitive to statutory and binding-precedent opinions that question so-called "black-letter law."

• When one must praise this particular US Attorney for the District of Columbia — however faintly, particularly given her track record (not just, but certainly considering, as a Faux News sock puppet) — for belatedly following the ethics rules that bind all attorneys, let alone those specific to prosecutors, and withdrawing prosecutions whose only basis is as a convenient cover-up (however implausible) for her current boss and lack any plausible factual support, things have gotten really bad. Which shouldn't surprise anyone these days. Of course, none of that is tested on the bar exam; no exam can test whether a lawyer will actually tell his/her/their client "You're in the wrong, and I won't facilitate misuse of the law to further that" — especially not when that client's temper tantrums would shame the average two-year-old.
• [AALA,] I regret that your submission does not meet authors' needs at this time. Best wishes with your future writings.

  In order to avoid a conflict of interest, it helps to be able to spell, punctuate, and define "conflict of interest," at least in an I-know-it-when-I-see-it fashion. On the evidence of its recent update to its so-called "Canons of Ethics" (ordinarily honored only in the breech/breach), the Association of American Literary Agents can't, or at least won't. The opening paragraph of its announcement demonstrates this all too well, both overtly and between the lines:

  The Canon was originally created in the twentieth century and was rooted in the practices of the publishing business of the twentieth century. In the twenty-first century, publishing, along with the overall media landscape, has undergone a dramatic transformation. We have seen publisher consolidation, the advent of entirely new publishing models, the rise of digital media, social media, mobile technology, the challenges of AI, et.al., as well as the loss of physical retail space and traditional review media. Author/creators increasingly operate across a wide range of platforms, services, and competencies. Demands on agents, from publishers and from our clients have changed as well, necessitating some big shifts in the role of the agent.

  Reading between the lines is sort of essential to evaluating manuscripts and placing them with appropriate publishers — the one job (thanks to possibly-unlawful "conscious parallelism" in commercial publishing) within the province of literary agents. In no particular order, note that this paragraph glides by its assumptions that (a) there was "the" publishing business of the twentieth century (and, worse, one that was well-served by the predecessor organization of the AALA… which, itself, arose because its predecessor had Legal Trouble resulting in its forced dissolution, even though it kept the same lawyer), (b) the "root" of those practices was in the then-contemporary late twentieth century and not earlier, from the 1950s to not later than the early 1970s, (c) the technologically-enabled explosion in the population of potential/actual authors has nothing to do with anything, (d) all worthwhile publishing efforts are at "book length" or its equivalent, (e) the AALA actually understands the changes referenced in "platforms, services, and competencies"… and, perhaps more to the point, has the humility to say "I don't know" at either the individual or trade-organization level for those parts it doesn't (in excess of 70%) and consult actual licensed professionals who do, then follow the advice given, (f) it actually enforces its Canons of Ethics… especially against members of the old boys/girls/whatever club, (g) its membership includes all legitimate agents, and the entrance requirements are meaningfully related to the rest of the Canons, and…. Oh, that's enough for now; on to the specific and fundamental problem with this revision:

  Having an "agent" clinging to that name due to its implication of "protector against abuse by third parties that have superior knowledge and bad or at least adverse-interest-based intentions" is useless when that "agent" becomes that third party. New canons 10–12 function together to make the agent the watchman of its own accounting and related issues, in particular for publishing and editorial services. I'm unaware of more than about 500 or so well-documented instances of what can happen in publishing — even in the "late twentieth century" — with even purportedly "old-line" agents/agencies, let alone the invitations for self-dealing to the outright scams^†. A writer would ordinarily expect his/her/their agent to scrupulously inspect a publisher's royalty statements for errors and worse; these new provisions make the agent responsible for scrutinizing its own royalty statements for errors and worse, similarly for every other outside service. (What, you really think that "ISP billing based on usage for the author's website" is free from problems?)

  The community of literary agents needs to accept that its competence is limited to connecting authors to commercial publishers (when appropriate for both, which does require some judgment) and acting as a mere conduit for business communications related to that. This attempt at rationalizing diversified one-stop shopping is an ill-considered mess that refuses to learn from the organization's own history — and doesn't include minimal requirements like "There must, at minimum, be separate business structures for non-agenting activities like publishing, like editing, and so on that at least formalize separation of interests." Even law and megaaccounting/business-consultancy firms do better than that!

  That these "new business lines" for agents are moving the AALA toward being a "publishing services job shop," and indeed actual publishers, is perhaps too obvious to discuss further. For the benefit of those who still believe that the only way to be published properly is through established commercial publishers, consider this the business end of a clue-by-four.

• Then there's greed and ego in H'wood. Like that's a surprise. It appears that a sequel to a blockbuster is unlikely to go forward now because a studio head thinks the proposed pay to the "talent" is too high. The implication that his feelings are hurt because the "mere employees" will get more than he does in his Very Important Job — and that he doesn't think his bosses (the Board of Directors) will bump up his salary sufficiently, which is just so insulting — is pretty clear… especially since the biggest likely "expense" for films of this nature is the advertising/promotional budget at the back end that's largely unnecessary (and indirectly flows back into that studio head's pockets via stock options, but that's for another time).

  I'd ask if that studio head, or indeed any studio head, had ever gone through a six-week-long shoot on location with twelve-hour days (plus extra time in makeup, wardrobe, etc.) while separated from family and friends, but I think I can guess the answer. And, perhaps most annoyingly, this studio head (and his counterparts) is putting a limiting value on a job he's incapable of doing himself at a time that "gross receipts" for films of this nature are increasing substantially greater than the rate of inflation… well, except for the occasional bomb, and most of those are predictable for other reasons and with rare exceptions in the long run break even with real-world accounting.

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†  disclosure: The author was a client.

Impending "Birthday" Party

Two hundred fifty years ago — give or take a couple months, since it had to be sent by sail and not e-mail — a bunch of uppity colonials provided a convenient checklist of objections to their monarch, whom they accused of tyranny. Here's how the present monarch (however unjustified his assertion of monarchial powers may be) appears to be doing seventeen months into his reign:

Historical Objection†	Status
He has refused his Assent to Laws, the most wholesome and necessary for the public good.	✅	The President certainly has the veto power, but exercised it on bills with broad bipartisan support relating quite specifically to public good… but inconvenient to this monarch's cronies and sycophants. Indeed, the actual reasons in both instances appear to have been spite unrelated to the merits of the bills. Even worse, he's busy denying effect to bills to which assent was granted.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them	✅	This monarch hasn't precisely forbidden "pass[ing] laws" by state governors, but has issued his own orders overruling them — even when those laws are committed to the states and Congress by higher authority. Between attempting to coerce states to do elections his (not necessarily Congress's) way and defying Congress's appropriations laws to deny funding to those who disagree with legally-dubious initiatives, for purposes of this checklist forbidding implementation is much the same thing as forbidding passage.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only	✅	Both the election-rules efforts — including holding a/the/any national agenda hostage to his SAVE Act and preemptive anti-sanctuary efforts noted in the previous item — would allow one to check this item off the list. The epitome, however, is the Big Beautiful Bill, a simultaneous preemption of "Blue State" policy preferences for their own people and imposition of what is best understood as stealth Jim Crow.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures	❎	As no session has yet been demanded at Mar a Lago, this item is incomplete at present. Maybe he'd just rather call it for the 51st state, whether that's his dream for Canada or for Greenland (but definitely not DC or Puerto Rico).
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people	❓	Although this monarch hasn't done so (yet… pending electoral results this fall), his loyalist regents have by recessing and refusing to call votes when some of their narrow majorities have been less sycophantically loyal than optimal. The recesses called at various times by House and Senate leadership, particularly during the fall 2025 budget/spending-authority fiasco, aren't fully this monarch's fault… although the selection of the individuals holding those posts essentially is. And there have been plenty of other examples; specific as to invasions, at his direction the House and Senate leadership have prevented debate and votes on the invasion of Venezuala and the invasion-lacking-only-boots-on-the-ground of Iran — not just opposed the substance. (And probably will do so regarding Cuba if this monarch makes it a live issue.)
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within	❓	This one fails — for the moment — only due to one word: "Elected." Some of this is almost inevitable due to structural distinctions in both the means of election (particularly the more-rigid electoral calendar in the US) and the validation of ministerial selection from that past monarch to this one. This monarch has refused to appoint ministers who can be confirmed in their posts by those elected (even his loyalists among those elected). In just one ministry, these range from "acting" of a private-life employee at the top (in place of a facially-unqualified predecessor!) down to viceroys (and aspiring Sheriffs of Nottingham) that have paralyzed the government's ability to enforce the law using only the law.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands	✅	Do I really need to say anything about this monarch's interference with state-level, refugee-accommodating immigration law and policy? Others have and will… even aside from directing his minions to do so with force not permitted by the laws of armed conflict — and these are not even hostile combatants.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers	❓	There's little doubt about the obstruction part of this item, and if it ended at the comma would be a solid — even double-sized — checkmark. We'll just have to see what happens with judicial vacancies for which his sycophants prove unable to attain confirmation, and with proposed expansions of the judiciary.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries	✅	The monarch's will alone — particularly as expressed through extreme loyalists — led to the shutdown last fall, which came within days of affecting judges' pay (and did affect judges' staffs). Conversely, opportunities to demonstrate personal loyalty to this monarch have led to judicial behavior, or at least rhetoric, for those seeking promotions. Judges are human, and definitely have egos, but doing this sort of thing in public isn't just gauche — it reasonably raises questions as to their impartiality.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance	✅	DOGE proved rather inefficient, although it's probable that no one will ever know how much — if only because recordkeeping there appears to have been remarkbly incomplete, even… inefficient.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures	✅	Posse comitatus probably prohibits, and certainly restricts, deploying the National Guard in support of immigration enforcement. Let's not entirely neglect upgrading purported law-enforcement agencies to paramilitary status, either.
He has affected to render the Military independent of and superior to the Civil power	✅	Misuse of the military in a civil-law-enforcement context inconsistent with both limits on law-enforcement acts and authority and the laws of armed conflict.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:		[not a checklist item, it's only a meaningless precatory clause]
For Quartering large bodies of armed troops among us	✅	Perhaps not literally quartered as would have been understood in the eighteenth century, but certainly deployed domestically for extended periods without military need or operations.
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States	✅	The shockingly inept (and cynical) federal "investigations" of immigration thugs and noncooperation with less-conflicted authorities — those authorities who would ordinarily act on a "Murder" — have been a feature, not a bug. And certainly not isolated, or even unusual. Worse, this is largely in support of a bigoted, unlawful policy preference. The contrast with prior domestic exertion of force by a predecessor monarch is rather distressing.
For cutting off our Trade with all parts of the world	✅	Just considering exports, remember that requiring a special license functions to cut off exports — and doing so for private expression not consisting of government (legitimate) secrets isn't entirely new, I'm afraid.
For imposing Taxes on us without our Consent	✅	Tariffs are taxes, especially because they're ultimately paid by "us" (and not, as this monarch's rhetoric has sometimes claimed, by other nations). Further, general tariffs are within the legislature's authority, not the monarch's.
For depriving us in many cases, of the benefits of Trial by Jury	✅	Both us and those who aspire to be us.
For transporting us beyond Seas to be tried for pretended offences	✅	Especially of prominent critics who've achieved personal success. Prominence isn't required, though; questioning what "our bastards" are doing seems sufficient.
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies	❎	This failure is more for lack of opportunity… thus far. This monarch has certainly demonstrated ambition to comply, but not yet taken action to use a "neighboring Province" as a baseline for new law he would impose in the present ones.
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments	✅	Is that an echo of "unitary executive theory" I hear? How about just reinvigorating Plessy? "Form of governments" is a bit more subtle, but it's wound up in the "no funding for state-level DEI efforts" — in substance, rejecting offices established in state governments, albeit not entire "departments."
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever	❓	Again, just on one policy axis, consider state legislation on climate change efforts that this monarch has challenged on a blanket basis — without regard to individual state circumstances and interests, let alone the consensus of scientists who don't have conflicts of interest — for the primary benefit of his sycophants (who, not coincidentally, are concentrated in other states). But this checklist item is incomplete, however enthusiastic completion of its second clause is, because this monarch has not formally completed the first one. "Denying effect" isn't the same thing as "suspendings meeting," however similar the effect.
He has abdicated Government here, by declaring us out of his Protection and waging War against us	✅	ICE detentions of US citizens; Renee Good and Alex Pretti; Occupy [insert major "Blue" city here] (a few more examples); and that's just for the narrowest definition of "us," just on one policy axis, just use of military-grade armament. What is particularly notable is that these "deployments" tend to come shortly after those cities announce that more people are "us," even in the face of separate and not even close to equal policy preferences not just implied, but overtly advocated, by this monarch.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people	✅	If you're a member of the 1%, inflation is good. If not, and you're merely one of "our people," not so much — especially after removing what passes for a safety net first. Sure, most of the plundering at sea has been other peoples' seas, but it's the thought that counts — especially for a monarch who thinks his own territory extends to anything within the same hemisphere.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation	✅	Looking just at uniformed military use, as foreign mercenaries have gone out of style (and our standing armies and paramilitary forces have made hiring mercenaries unnecessary anyway), this has been rather obvious. Just ask Maduro and Minneapolis. Death, desolation, tyranny, cruelty and perfidy indeed.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands	❎	Another item left incomplete… if only because the monarch's focus has been on alleged drug smugglers regardless of citizenship (or even confirmation that they're smugglers). Plenty of room for "improvement," though.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions	✅	06 Jan 2021 — and the blanket pardons issued since. Not "merciless Indian Savages" unless you laughingly mean the shaman, but otherwise on point (notwithstanding a later "acquittal" based primarily on the standard of decision, not the proof offered).

I'm sure that with just a little more effort and attention to detail, this monarch can complete this checklist of tyranny. There's been substantial progress in less than a year and a half. I therefore propose giving this monarch the finger as a 250th anniversary gift — or more than one from among those blown off by fireworks. That will certainly be more civil than marking "86 47" in the lawn near his official residence, right? And a pile of severed fingers won't constitute a credible threat against a living person, either.

If this be lèse-majesté, so be it. As I am no longer subject to Article 88, I am free to expound contemptuous words concerning this monarch. Presuming, that is, that my attitude improves enough that I express only contempt — this monarch is beneath it.

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† Assembled Representatives of the British Colonies in North America, Declaration of Independence (propounded not later than 04 Jul 1776).

The 250th birthday of the United States is still a few years off; notwithstanding any agreement among the colonies, there was no "United States" until at earliest the Constitution was signed and sent for ratification (17 Sep 1787), and better — pleasingly close to the dubious "04 July" — would be the date the ninth state ratified and placed the Constitution into force (21 Jun 1788). We celebrate birthdays, not conception, in the West. (Maybe we can have a gender-reveal party celebrating the Articles of Confederation, 01 Mar 1781?)

Misanthropic (7)

In an order issued this morning that should surprise no one at all (see Dkt. 579 (26 Jan 2026), stating that it would be reset), Judge Martinez-Olguin has cancelled the previously-scheduled hearing for 23 April and reset it to 14 May (see Dkt 632 (08 Apr 2026)). The order setting the new hearing date:

1. Resolves some other pending procedural foofery regarding an objection filed by a non-class-member (which I have not reviewed, but — in the nature of these things — probably asserts, at least in part, that it was improper to exclude the objector from the class definition);
2. Sets both the approval hearing (also referred to as the "fairness hearing" — a term I prefer because it's quite rare for approval to be granted at the hearing, and under changes in law since 2003 may no longer be appropriate in any event) and the hearing on attorney's fees for 14 May 2026 at 1400PDT, with instructions for passive listening via Zoom (see Order at 2);
3. And, somewhat between the lines, indicates some judicial discomfort with some of the representations blithely being made by various counsel and parties, without specific criticisms. This is both entirely natural and previously signposted: Judge Martinez-Olguin appears to be taking seriously her duty as a gatekeeper for the public interest regarding a settlement pushed onto her docket three months ago in contexts generally foreign to judicial experience.

Aside: The reset hearing date makes certain that payments will not be in classmembers' hands in August 2026. So there.

Mis-Anthropic (6)

A few minor administrative updates on Bartz v. Anthropic, the class action pending for copyright violations in creating one particular large language model supporting one particular generative-AI engine, merit some comment — mainly as assurances, citizens, that there's really nothing to see here, move along (but get your documentation gathered and claims filed on or preferably well before 30 March 2026).

1. Unless there's a full seal on one (or, as tasteless and ominous foreshadowing, Item 2), no further objections to the settlement have been filed after the earlier ones. That doesn't necessarily mean smooth sailing, but it does mean that there's only one potential source of new arguments against the settlement unless the new judge reopens the objection period on motion — which is guaranteed to happen, down the road, if she rejects the settlement and sends everyone back to the bargaining table before they darken her chambers door again:

2. The United States government. Just as in the Google Book Search fiasco (filed about two decades ago now!), the US could move to intervene and object to either the settlement or the award of attorney's fees (see Item 3). The arguments and merits thereof, of course, are purely hypothetical at this stage. Given the massive conflicts of interest presented by "friends" of this Administration (specifically including the Doge of Venice Beach), the hostility of many of those "friends" to plaintiffs' attorneys (insurance defense counsel and mergers-and-acquisitions counsel, however, are encouraged to get rich with outrageous fees), and purported "policy imperatives," nothing would truly surprise me. Appall? — that's a different question entirely.

3. The next scheduled hearing is on 23 April 2026 — at which time only the pending motion for attorney's fees will be heard. The new judge specifically "administratively terminated" all other pending motions, and stated that the fairness hearing currently scheduled for that date "will be re-set by the Court at a later date" (Dkt. 579 (26 Jan 2026) (PDF, public access)). This is completely routine, and I expected it: This judge needs more time to familiarize herself with counsel, with the filings, with the facts, etc. The real point here is only that the settlement will not be either approved or disapproved on 23 April, or in a later ruling based on a hearing on 23 April.

4. The transcripts of the November 2025 hearings — when Judge Alsup is reported to have had some pointed remarks concerning tactics and notices suggesting that authors should opt out and proceed independently for Reasons (that make little practical sense, but that's for another forum) — will be made available to the public by 02 March 2026 absent any further motions relating to them.

5. Perhaps most important in the long run — but not creating any new deadlines (yet) — Judge Alsup appointed a Special Master (a non-judge who will make recommendations to the judge, now Judge Martinez-Olguin) to deal with "claimant disputes" (Dkt. 501 (25 Nov 2025) (PDF, public access)). The Special Master is a professional who will take in the facts and make recommendations. Examples might include an author asserting that the publisher is not due anything because the contract expired in 1996 (decades before either actual copyright infringement by LibGen et al., or Anthropic's copying of that infringement, and massively prior to any tenable extension of the three-year statute of limitations) but the publisher wants its purported 50% share; or ambiguity in the author-publisher contract on the publisher's share, which could be a serious issue for infringement of e-book versus print editions; or two coauthors failing to agree on a split of whatever money is due an author; or — and this is where the fun will be — claims by contributors regarding a collective work. There's no track record for either Judge Martinez-Olguin or Mr Cheng to provide any basis for prediction of how this might work out.

Zoozittacarzays Held Up in Customs

Remember that the Grinch was a great guy before that (probably fatal off-camera) hypercardia event, as he thoroughly deplored the commercialism and modern spirit of the season ("gimme").

• Little Marco wrote a memo, and made darned sure it was in a typeface notorious for its mistreatment of diacriticals and non-Roman characters, and that's virtually illegible onscreen in "dark mode." This will facilitate subtle snubbing of allies whose major cities include München, Göteborg, and São Paulo; tenser conversations regarding Донбас and Łódź; and anything from East Asia is right out. Frankly, that's more consideration than this Administration is giving the substance… and the emphasis on the appearance of the font is all too predictable. I'd suggest that waking up to others' perceptions in their own languages might matter to effective diplomacy, but that's obviously too close to "woke."
• And it gets even worse when State negotiates an extradition treaty and then ICE detains the foreign citizen whose presence in the US was involuntary, to face criminal charges. This isn't the left hand not knowing what the right hand is doing — it's the left hand giving the right hand the finger.
• Speaking of criminals who need to face charges, consider the superrich — and ponder the distressing proportion whose fortunes were founded through lawbreaking. And maybe consider writing a novel based on their (fictional) kids, because that's not copyright-protected subject matter…
• I suppose that beats being woundedinjured in action but not eligible for a Purple Heart. No visible scar, no medal… and good luck with that VA claim.

Again? Really?

So, the Office of Legal Counsel appears to believe that military personnel engaged in strikes on "drug-trafficking" boats cannot/will not be prosecuted. Really? Again, you ignorant sluts?

Let's neglect, for the moment, that overruling the National Security Act of 1947 as amended requires an actual bloody amendment. This matters — yet again — because the purportedly binding nature of the Office of Legal Counsel's "opinion" is interfering in a chain of command established by statute. I've been unable to find anything in any proper amendment to the 1947 Act (and there have been several) that inserts the OLC into the chain of command. The OLC can, at most, provide outside advice to the Joint Staff and the respective service chiefs. Further, we've had multiple historical demonstrations that the OLC's expertise simply does not extend to military law; the Yoo memorandum is only the best-known.¹

We'll also neglect, for the moment, that the "opinion" was classified. Recall the proper grounds for classification: "Information may be considered for classification only if its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security," with the particular levels of appropriate classification defined (see § 1.2) with wording little changed in the last half-century. One can only conjecture the "identifiable or describable damage to the national security" — as distinct from damage to any individual (including but far from limited to the President), organizational imperative, policy initiative, or pipedream — from disclosure of a memorandum of law that (ineptly) discusses and dismisses prosecution of military personnel in a hypothetical future operation of uncertain factual context and unspecified content of relevant directives and orders.²

The fundamental problem is that the memorandum is indefensibly wrong. If the orders are in fact lawful, and in furtherance only of lawful actions, there's no risk of prosecution in the first instance. There might be for exceeding them, or I suppose for hazarding a vessel in the course of following them, but that's a different — and highly fact-bound — issue beyond the scope of any pre-event legal memorandum. If the orders are unlawful and the memorandum is purporting to excuse following them anyway, the memorandum is legally wrong.³ We've been here before.

[E]ven if Calley had received the orders as claimed, he would not necessarily have been exonerated. The military judge properly instructed that an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal or should have known it was illegal, obedience to an order was not a valid defense.

(emphasis added) And no matter the ego or righteous conviction of one or more civilian lawyers at the Office of Legal Counsel, they can't overrule the Fifth Circuit. At most, they can supply some authority that a particular class of orders, without consideration of specific context, might be legal — but that just goes to the "should have known" issue, because the individual who issues unlawful orders should have known, too.

Perhaps these are seditious words. If so, I own them; and I assert that a Presidential suggestion — however disguised as a social-media reference — that anyone "be arrested" for reminding military members that following an unlawful order is itself unlawful seems to constitute a "high crime or misdemeanor," and especially so in opposition to the Speech and Debate Clause and/or First Amendment.

This Administration appears to be engaged in an epistomological attempt to determine the number of wrongs n that makes a right. I remain… unconvinced. (And they can't have the pony, either.)

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1. I make no representations regarding the content or existence of any other Office of Legal Counsel memorandum, present or historical, concerning either military law or legality of classes of prospective conduct by military personnel, that has not been declassified and made available to the public. I similarly make no representations regarding the mining of manganese nodules from the floor of the East China Sea.
2. Probably only the same sorts of considerations that led to burglarizing a psychiatrist's office. With, one might contemplate, ultimately similar results.
3. In any such/similar memorandum that has been made public of which I'm aware (whether or not formally declassified), there's a simultaneously startling but ultimately unsurprising omission: Any consideration of Article 133, Conduct Unbecoming an Officer (codified at 10 U.S.C. § 933) as a source of prosecutorial grounds independent of the specific actions. And this as we approach the 80th anniversary of the Nuremberg proceedings, let alone considering whether military law might treat failure to make independent, circumstance-specific inquiry as a dereliction of duty. Dienst ist dienst indeed.

A Candle in the Window

Gotta crank out these sausages so there's room in the kitchen for Turkey Day preparations. Maybe if the shutdown ends soon, SNAP recipients won't have to be satisfied with a Cornish game hen split six ways. (There will still be plenty of other shenanigans.)

• I suppose I should start by noting The Further Adventures of Eliza — the true ancestor of so-called "generative AI" systems. (By now, she's probably just another old lady.) Some proponents of these systems really, honestly believe that "information wants to be free (and everything is just information)," so they disrespect "opt-outs" (leaving aside that under the basic premises of copyright — indeed, all intellectual property law, whether US-centric or otherwise — opting out is for waiving protection, not waiving rights).¹
• The obvious consequence is underinclusive class actions. Now I say that in the abstract; in the best of all possible worlds, all of the defendants engaging in similar schemes would be in a defendant class, all owners of copyright interests would be in the plaintiff class, and the judge would be authorized — indeed, enthusiastic about — using a chainsaw on prevaricating briefs. And lawyers. And outside commentators (especially those with conflicts of interest). This, however, is not that world, so we have to deal with… well, the realities of litigation. Such as the underinclusive list of eligible works — a list that, as usual for anything with which the Authors' Guild is involved, neglects "abnormal" publications by their concept of "normal," such as requiring an ISBN or ASIN, and dismissing self-help books that outsell all but a few of their actual members — in the context of the realities of the primarily-cost-effectiveness narrowing of the case.

  The perfect is the enemy of the good enough, and definitely the enemy of the achievable. Don't be fooled by carrion-eating "advocates" searching for scraps in pursuit not of an achievable better deal for the actual rightsholders, but for their own award of attorney's fees. If you, as an author, choose to opt out, do so only after having experienced IP litigation counsel review the details of your specific circumstances — not based on spam². (This is explicitly not an offer of representation or solicitation of business for me.)

• Which beats worrying about how unearned inherited wealth is warping social values. It's even worse Over There… until you look at 1600 Pennsylvania Avenue, in which each Heffalump resident in the last third-of-a-century-plus has been a scion of inherited wealth.
• In somewhat better news, wingnuts took Election Day results in very delicate portions of their anatomies indeed. Not just Over Here, either; even the "governing party" in the Netherlands (which doesn't mean quite the same thing as Americans think it does). The wingnuts really don't like hearing any of this from a mixed-race… individual (sarcasm tag superfluous, doncha think?).
• Wingnuts also need to rethink exactly how they approach institutions that seem not to welcome them as much as they think they deserve. Oh, wait, that would undermine their sense of entitlement, so maybe it's as unrealistic as the suggestions running around to opt out of the Anthropic settlement without a competent evaluation of particular circumstances…

---

1. Also leaving aside the deceptive naming habit of damned near everyone in this conversation — "Copyright Alliance" without conflicts of interest my avulsed toenails.
2. From what I've seen — and I suspect I haven't seen all of it — spam that arguably violates applicable legal ethics rules, neglects Fed. R. Civ. Proc. 23 and the parts of the Manual for Complex Litigation (sorry, the web reference isn't working during shutdown) relating to management of class-member options, misrepresents the most-relevant facts, and completely fails to acknowledge the uncertainties and costs of proceeding with individual suits, or even alternate class actions. The preceding has been edited for the benefit of your screen; my real opinion of the opt-out spam that I have seen drips acid. I've got more respect for your computer than that; the people who came up with these campaigns… didn't. At least they're not porno trolls — at least, not yet.

The Anthropic (Lack of) Principle

Some e-mails and others' blog entries lead me to believe that the class definition in the settlement regarding Anthropic's use of pirated material as training material for its "AI" is causing some needless confusion. Slightly rewording it, the class members who can recover are those who:

• Hold the copyright,
• in works leeched by Anthropic to "train"¹ its "AI" systems
• that were, for US works, registered with the Copyright Office
• with an effective date preceding the leeching
• and within five years after first publication.

It's those last two qualifications that are causing the confusion, because they're not about copyright law — they are, instead, about the technicalities of class certification, and specifically about the problem of class representives having circumstances typical of the class and that the common questions presented predominate. However, it does relate back to copyright law, in a way, too — because works falling outside of these parameters and leeched in this scheme still violates that work's copyright, but it would require further litigation. The incredibly ill-advised registration system — which is inconsistent with the Berne Convention's disdain for "formalities," but for both historical and hidden-agenda reasons beyond the scope here continues to be part of US copyright law — has two provisions that are prone to abusive litigation tactics. The class definition excludes those tactics by defining otherwise valid copyright claims out of the class.

The easiest to understand, and the one with the most validity, is that the effective date of registration² needs to precede the date on which the material was misappropriated by Anthropic. This isn't about copyright validity, but about the availability of certain remedies under § 412. Since those remedies are important parts of this class action, they've been forced in through the class definition.³

It's much more difficult to accept the "registered within five years" limitation. A registration can be made at any time that a work's copyright is in force. The "five years" comes from an evidentiary qualification in § 410 of the Copyright Act: A registration whose effective date is within five years of first publication is prima facie valid, but a later registration is subject to challenge more generally. Excluding the post-five-years-registered works is a litigation decision made in negotiating this settlement (and in the class allegations in the complaint), because it appears that none of the proposed class representatives falls into that group and the additional squirreliness involved in validating those registrations might theoretically impair the "common question" aspect of class certification.

Unfortunately, that last point in particular has been misinterpreted in a number of places as meaning that more than five years after first publication, it's too late to register at all (instead of just for this particular lawsuit). Frankly, that's what some parties here want you to think, because without registration there's no individual cause of action that can be heard by the courts (§ 411, although this is a claim-processing rule and not jurisdiction⁴).

The fundamental problem is that the publishing industries — some more than others — have been at best slovenly in registering copyrights, even when the publishing contract requires such registration.⁵ (It was worse under the 1909 Act, when that failure to register also forfeited the copyright itself.) It is still worth doing late registrations (so long as the term hasn't expired and the registrant is even more careful than usual to proofread the application and ensure it's fully truthful and accurate). This suit, after all, is not going to resolve all questions regarding leeching of material under copyright… and the next set of class counsel to come along, or even individual lawyers, might be more aggressive. However, they can't file if there's no registration.

---

1. I'm just not going to express my contempt for this sort of deceptive misuse of language here. Although that misuse is endemic to the general discussion of "AI" and "generative AI" and "chatbots," the point of this blawg entry is misunderstanding of copyright law by affected authors (and potentially many others).

   Don't worry, you sleazebuckets. I'll deal with your intellectual dishonesty and intentionally deceptive acts and practices more directly another time. Bwahahahahaha!

2. Although really not relevant here, the effective date of registration is ordinarily the earliest of the date of actual application (including payment of fees) or — if that application date is 90 days or less after first publication — the date of first publication. Naturally, the "date of first publication" is defined in the Copyright Act only for "phonorecordings."
3. We'll pretend, for the moment, that § 505 provides the only way to recover attorney's fees. It doesn't; the rule governing class actions provides for attorney's fees (regardless of whether the cause of action otherwise provides for them), and on a far more generous basis than does the Copyright Act. Needless to say, I'm displeased with the confusion here, too.
4. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). This matters because federal class actions can include claims of dubious (or even no) subject-matter jurisdiction if pursued individually.
5. This failure constitutes a breach of contract by the publisher. On one hand, it's probably long past the statute of limitations, since the failure to register "should be" apparent to the author not long after publication. Creative lawyers might use such breaches — especially when part of a pattern or practice — to strike other defenses offered by publishers for other breach-of-contract claims like failure to pay royalties; this is called the doctrine of unclean hands. Of course, the hands were a lot less clean when smearing linseed-oil-based inks…

How [Not] to Share

So, one obvious conceptual flaw in SharePoint has been exploited? Color me surprised (a particularly repulsive variant of chartreuse)…

I have uninstalled and blocked SharePoint on every machine I've had since it was first distributed. At a fundamental level, the SharePoint concept is inconsistent with the concept of "confidential data," and its very existence — very much like the use of the body of e-mails for privileged information — makes a mockery by trusting others whom the person responsible for securing information doesn't know. Effective information security is not an automated afterthought to the convenience of providing "me, too!" comments on badly-conceived marketing documents passed across an organization and to outside "consultants." Even that, however, is better conceived than SharePoint and similar "collaborative editing" systems that also, simultaneously, undermine both declarations concerning the marketing emperor's new clothes and taking responsibility for changes — that is, they foster not collaboration but groupthink. (Lest you think this is an anti-M$ rant, I do the same with all other "collaborative commenting" and "silent document-sharing" systems, such as with PDFs.)

Any resemblance of the preceding to any of the following is somewhat less than coincidental:

• The traditional process of providing law-firm partners commenting ability (even with pen on paper!) on every associate's "preliminary" and "early-draft" work, without regard to either "actual knowledge of context" or "need to know"
• Blanket access to anything by administrative assistants
• The success rate of individuals in recognizing what elements of documents that they are asked to comment upon but are not directly concerned with their daily duties are confidential, even to the minimal extent of "proprietary business information"
• AI Chelsea Manning

Worse, all of that concerns "confidential information." It does not reach the concept of EEFIs (essential elements of friendly information), such as a sudden increase in communications between a corporation and a law firm (or even department thereof) specializing in mergers and acquisitions… or white-collar-crime defense… These are just the easy-to-see examples, too; and the less said about healthcare information, or enablement of ICE raids, the better. The irony that this particular system failure is (more) exploitable when an organization uses its own SharePoint server rather than a "cloud-based system" should cause everyone to question the very concept, but that isn't part of the conversation at all.

"Security, privacy, and respect for others' security and privacy" are inherently not efficient. Get over it — reject the purportedly neutral "efficiency is always good" meme — and pay the f*ck attention, instead of relying upon some programmer who knows nothing of your actual business (or personal concerns) to do it for you.

•  •  •

Meanwhile, Life continues to get in the way of everything. I'm afraid that Life doesn't make for "efficient sharing," either. So, no further comments about how having a "controlling shareholder individual or small group" for a company with First Amendment issues makes Mr Colbert's impending deplatforming inevitable, beyond my expression of just as much surprise as I did above concerning SharePoint. At least not today.

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.

---

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.