23 April 2018

Six Copyrightable Works in Search of "the" Author

Part 0: Crass Introductory Remarks

One would think that the judiciary was capable of learning from the past, especially when implored to avoid a particular class of errors by a giant (however flawed, and however later passed by) of the past. One would probably be wrong, as evidenced by the judiciary's — hell, the entire profession of law's — failure to acknowledge an observation by Oliver Wendell Holmes, Jr. more than a century ago, cautioning the judiciary (and the law!) against the Dunning-Kruger effect1 regarding the arts:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.2

And even here — in recognizing the profession's fallibility in judging the product of artistic endeavor — Holmes fails to acknowledge the profession's utter ignorance regarding process, which is particularly ironic given Manet as an example. Holmes can hardly be blamed for neglecting the interplay between the First Amendment and the arts, which is admittedly an aspect of law entirely ignored in US jurisprudence for another quarter of a century thereafter; more-recent practitioners, however, don't have that excuse.

I do not pretend to omniscience on these matters, especially the farther one gets from my own experiences in studying and creating both artistic works and artistic processes (which are two entirely different classes). But I'm at least aware of the limitations and differences and problems with post hoc rationalizations that seem to have escaped both the artists/creators and the legal profession.3 That is, I think I've got the minimal humility necessary for daily function in and around the arts — which cannot be said for certain judges and treatise authors… Over the next few months, I'll be irregularly posting some more-detailed musings on six egregious errors in copyright doctrine that result directly from the failure to distinguish between "process" and "thing," and how those errors relate to identifying "the" author of a work. Sadly, each of these errors was not only preventable, but predictable.

What I've found most frustrating over the years — especially when dealing with "Information Wants to Be Free" (IWTBF) advocates and virtually every tech entrepreneuer or groupie — is that understanding process as an integral element of the arts is also necessary to understanding both the expression (and information!) in the arts and virtually everything about these six problems. It is not sufficient; it is merely necessary.


  1. See generally, e.g., Justin Kruger & David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments, 77 J. Personality & Soc. Psych. 1121 (1999) abstract, text behind paywall. The less said about the judicially imposed Dunning-Kruger effect concerning jury verdicts, the better… although the probability that there's at least one member of a jury familiar with artistic process is greater than that among the lawyers and judges who tried the case.

    author's note on citation format In a not-so-subtle rebellion against the Bluebook and in recognition of legally enforceable rights in at least part of the arts community, I am adopting use of the ampersand ("&") to connect authors who each worked on an integrated whole, and the simple conjunctive ("and") for editors or other sources of collective works who contributed to a whole but not individual discrete elements. Plus it will screw up some less-sophisticated web crawlers that have trouble with operator overloading of the ampersand in HTML.

  2. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903) (citation omitted).
  3. For an introduction to the endowment effect in general, see Daniel Kahneman, Jack L. Knetsch, & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Perspectives 193 (1991) PDF.

    As these musings progress, the "it's mine" problem will become more and more central, as will the different varieties of "ownership" at issue in the arts — particularly when they overlap but the decisional frame being used favors, and perhaps even considers, only one of the varieties. Cf. David P. Stern/NASA, (22) Frames of Reference: The Basics, From Stargazers to Starships (2006, retrieved 2018). (This reference to basic physics and basic reasoning is an intentional self-referential smack at the limited educational background of the legal profession, cf. note 1 supra.)

13 April 2018

Still Life

No, I'm not going to inflict a "still life" drawing upon you. I may be a law school graduate, but I'm not, you know, evil.

Once Life has achieved stillness, though, there will be renewed activity here. Including, I'm afraid, calling out an entire state's judiciary for abrogation of its fundamental proclaimed duty of "regulating and administering the profession of law." And I say this as the victim who couldn't get even a real inquiry started. My old mentor, colleague, and friend the recently and untimely deceased Ron Rotunda agreed, more quietly than he thought most appropriate but out of a sense that he should perhaps allow the courts and the bar to self-reform.

And, of course, more intellectual property and stuff of concern to creators, more politics, more art, more everything.

But at present, life is a kaleidoscope or kinescope and not still.

04 April 2018

A Half Century of Futility

I think he'd be terribly disappointed; I know I am. And was: The gleefulness of some of the adults around me (which made its way to the west coast in time for the evening news) at the assassination of a man who was clearly no threat to them is a clear memory and the overt beginning of political awareness for me. The content of character I see in "public service" resembles nothing upon which Dr King would wish to judge anyone.

Fifty years ago today, a bullet on the balcony of the Lorraine Motel made Black Lives Matter inevitable. Not necessarily at this time; not necessarily in detail. Nonviolent protest was met with violence, with advocacy of violence, with ignorance and fear, with the assumptions of the zero-sum game during the greatest quarter century of constant and relentless "pie expansion" in Western history. I'm actually writing this in parts and somewhat in advance (due to an impending move, I can't be certain of 'net bandwidth), but I predict one thing that both disgusts and disheartens me: Too much effort, too much time, and too many column-inches will have been devoted to the recent death of another in a line of dubious evangelists who should be despised for oh-so-genteely and oh-so-deniably preaching exclusion of the Other (and too many who go much, much farther… regardless of the particular religion in question) than will be devoted to this anniversary of the death of a religious leader1 who did not stoop to dehumanizing those who didn't agree with him (or, at least during his lifetime, allow his close adherants to do so). We can count on Sinclair Media — which is disproportionately present (not solely, just disproportionately) in so-called "Trump Country" — to continue its tradition of cloaked undermining that isn't quite hate speech or dog-whistling; after all, the local station in Chambanana did for the fortieth anniversary… and we'll get to see Sinclair's "must run" nonsense here on the west coast within the next hour or so (if it didn't run last hour). <SARCASM> It's not like Sinclair Media is headquartered in a former slave state (and very near a major marketplace) or anything like that. </SARCASM>


  1. Religious leaders do not cross the line to impropriety by advocating rights (unless, that is, they are rights founded solely in religious doctrine and inconsistent with other such doctrine, such as anti-abortion protesters who nonetheless endorse the death penalty). Dr King seldom made that kind of error… in distinct contrast to some of his successors, who have screwed up further by using their religious status as levers into policy positions and debates that have little, if anything, to do with rights. Although the Constitution prohibits any "religious test" for office, I would just as soon bar any active member of a religious hierarchy from political office (and vice versa) — if nothing else, the past few thousand years of history have demonstrated that's a volitile combination that inevitably paves a path toward bigotry. Such as many of the fifteenth- through seventeenth-century rationales put forth for enslaving Africans.

14 March 2018

RIP Dr Hawking

… whose contributions to astrophysics are too immense to be described in a short blawg post, and that leaves aside his contributions as a popularizer/communicator of science. And it was all possible due to nationalized healthcare — Hawking said so himself.

Dr Hawking would have been "uninsurable" under US standards after his diagnosis half a century ago. Even if he had been able to get "insurance," the cost would have been astronomical (and may well have blocked him from getting a job, because the law on employment disability for people with noncongenital medical conditions has black-hole-sized loopholes and complete loss of information); the exclusions for "experimental treatments" would have been devastating; and he would have had to spend half his waking hours with insurance forms and on interminable telephone holds.

It's not that nationalized healthcare caused his brilliance. It's that it was one of several necessary conditions for his brilliance to flourish.

So the next time you're worrying about how the US is falling behind in the sciences, think about Dr Hawking's career. In particular, consider that we do not and cannot know about US-based scientists — or artists or anyone else — who failed to achieve their potential because, well, "Coverage Denied."

A very bad way to begin Pi Day — the death of the Lucasian Professor of Mathematics.

08 March 2018

Dear DMCA Notice Agent

No, I will not use your purportedly convenient online form to report a copyright infringement, because (numbering for later reference only):

  1. Your form is not a method authorized by the statute, 17 U.S.C. § 512, for copyright infringement takedown notices. Sure, the statute was put in place twenty years ago… but formmail was around then (I had had one on my personal website for three years!), and the legislative history implies — doesn't state, admittedly — that it was proposed as a possible means of providing notice and rejected. Thus, using that form might not fulfill my own responsibilities for notification under the statute… and might provide a loophole for you to later argue that not all of the formalities had been fulfilled and that therefore a notice (or counternotice) was ineffective.
  2. Your form doesn't provide me a record copy of what I sent and when. Even though your form requires me to enter an e-mail address in order to use it, and it would be less than trivial to run a three-line sendmail script on the output to send me a record copy. And, of course, if I don't get that record copy, I have a reasonable inference that you didn't actually receive my notice, and can take steps shortly to ensure that you did get it.
  3. Your form usually includes demands for information not required by statute, whether we're talking about a copyright infringement or some other IP infringement (often trademark). Some of these common bullshit demands — which seem made not to actually process notices, or even to validate the seriousness of the notices, but to discourage actual filing of notices by making the notice more administratively annoying and difficult than the statutes require — include demands to provide:

    • A registration number, whether for copyrights or trademarks
    • An example of a protected work being used in commerce, whether for copyright or trademarks
    • A daytime telephone number for response, when the relevant statutes all require written responses
    • A certification that the IP holder has attempted to deal directly with the (usually anonymous or pseudonymous) infringer with some kind of prior notice
  4. Your form is written and assumes that only one type of IP is at issue in any single notice.
  5. Your form is processed in a manner to affirmatively avoid "red flag" information reaching your tiny little brains.
  6. Your form does not allow a single notice regarding multiple works.
  7. Your form is inaccessible unless I have an existing account on your system.
  8. Your form improperly attempts to collect canvas data or set tracking cookies (or, indeed, depends upon any kind of cookie or other session-identification measure).

No, instead, forms like those at most online service providers (as that term is defined in the DMCA) are at best there to deter complete, effective notices from being filed. That is, the service providers don't want to hear it and therefore make it needlessly difficult. (Ever tried to cut and paste URLs into an online form, and make sure that the pasted version is complete… especially when it's more than 80 characters long?) In short, as they're currently implemented, they're bad-faith attempts to avoid inconveniencing the "paying" customers — the users of the online service providers' services. And any lawyers who participate in these schemes should seriously consider their ethical obligations under Rules of Professional Conduct 3.1, 3.4, and 4.1 — especially regarding items 3, 5, 7, and 8 above (which by their presence imply that the online service provider will not timely process a notice otherwise).

So: Bite me. You're going to get e-mails (with return receipts), faxes, and physical letters, sent to the address stated at the Copyright Office notwithstanding anything else buried on page 37 of the terms of service. And sometimes those notices are going to be pretty bloody harsh and warn you up front that you're outside the safe harbor, especially if (like two major "marketplace" providers) you won't respond unless the complainant proves he/she is already a member of your marketplace.

03 March 2018

A Computer With a Keyboard Is Not a Cell Phone

… and the bloody marketing "geniuses" at a certain computing monstrosity in Redmond should remember that one of the reasons that those of us who touch-type are Apple-averse is that we, well, touch-type, and use keyboards on computers for more than dust-bunny storage. If you want to add some new features for the kids who can't qwerty, fine; don't take away features that we rely upon.

Like menu bars accessible from the keyboard.

Like alphabetically-sorted contacts and chat/instant messaging contact lists.

Like accessing actual help facilities using your own imposed standard {F1}.

Like removing the "away" status and forcing everying to either "active" or "do not disturb."

And while you're at it, don't by default show more information to other users in the new version of the program than was shown by default in the older version of the program, especially when the new version is an essentially mandatory security upgrade (due in part to SPECTRE and MELTDOWN, but without the Bond girls to deal with SPECTRE — if I have to deal with a phony criminal conspiracy that isn't actually as scary as the real ones, at least grant me some airbrushed eye candy instead of bigger bloody emoticons).

I passed eighth-grade typing. Just because neither any executive at Apple nor anybody in your own marketing department did — or actually works with and edits words for a living, instead living by soundbites — does not mean it's a good idea to reduce accessibility under the Americans With Disabilities Act. For example, this program is now no longer usable at all by the visually impaired, precisely because it no longer has keyboard-accessible menu bars and predictable alphabetical lists of chat "partners." Indeed, one cannot even use it to place an outgoing voice call any longer without full and clear access to a touchscreen or trackball/mouse/trackpad. One wonders if anyone from legal even saw your plans… or, perhaps, whether you bloody geniuses listened if they did and raised any objections.

0/10.

24 February 2018

Marco Rubio Link Sausages

… spiced with NATO-standard-calibre 5.56mm rounds, downpowered for the civilian market. Which, of course, didn't make a damned bit of difference to seventeen direct and hundreds of indirect victims of those rounds in Parkland, Florida. Unfortunately, this isn't really a link sausage platter. It is, instead, the same old rancid dish with several variations.

  • It's both fascinating and mildly disturbing how easily a high-school junior took down a Fox political commentator for, well, being stupid and ignorant. <SARCASM> Of course, at the founding of the American republic, neither of them would have had a voice because they lack Y chromosomes, so that smack talk about "children" (and how they should speak to purported "adults" who can't be bothered to get publicly available facts straight) is just a little bit much. </SARCASM>
  • Don't arm teachers for the same reason that guards and staff in mental hospitals are unarmed (and that guards don't carry firearms on cell blocks in prisons). Almost nobody who is calling for "arming teachers" has any experience in a post-1960s public high school large enough for eleven-a-side football — nor with dealing with the overtly "mentally disturbed." In any event, most mental institutions are probably less disturbed (and less infested with cliques and bullying) than most high schools…
  • It's fascinating how right-wing assholes are excoriating the FBI for internally evaluating the facial validity of a called-in tip regarding a possible future action — and (in this instance mistakenly and without following established procedure) deciding that tip did not justify an arrest or even further investigation as otherwise required by its procedures — while simultaneously protesting that calls for the FBI and its former director Robert H. Mueller III to do so regarding actual, past actions in the electoral-misconduct probe would be a gross miscarriage of justice and violation of due process rights. Leaving aside that this is a distraction from determining actual cause, instead of a chance of avoidance that would not have dealt with that actual cause: Goose, meet gander. But preferably not tied up seminaked on a couch.
  • All of which beats playing NRA bingo with Theophilus E. Connor's true heir. I'm becoming less and less certain that the rhyming of "NRA" and "KKK" is entirely coincidental… especially given not so much NRA membership demographics, but who actually speaks for it.
  • Finally, a note on the substantive rationale for "individual gun rights:" In July 1776, there was no Second Amendment in effect in North America. Instead, at the risk of arrest and execution, patriots pledged their lives, their fortunes, and their sacred honor in pursuit of liberty against specific actions — not policy disagreements — that after due consideration of alternatives were decried as tyranny. Those who claim that individuals need an unfettered right bear to firearms useful only against persons are unwilling to make that same pledge… or run the same risks. I won't call them "cowards," because that's actually a different inquiry entirely; I will, however, call them hypocrites. The means of revolution are merely a temper tantrum when not employed in furtherance of an actual, explicit rationale against a target that has already demonstrated that it will employ unlawful means against dissent and refuses to even listen to that dissent.

17 February 2018

Shut Up and Drivel

Earlier this week, the Fourth Circuit demonstrated yet again that it understands "separation of powers" better than does the guy at 1600 Pennsylvania who keeps proclaiming that he has unfettered executive power. In the latest iteration of the IRAP/Islamic exclusion fiasco (PDF) warning: 285 pages!, the court took up its obligation to view evidence… and presumed that the President said what he means and means what he said. That is, that he's not just another politician.

In the extraordinary case before us, resolution of that question presents little difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual basis” for its actions, here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

IRAP v. Trump, No. 17–2231 (4th Cir. 15 Feb 2018), slip op. at 42 (internal citations omitted). As the court later discusses, it essentially has no choice in considering the repeated, persistent statements made by the President that make clear that regardless of any other motivations, a specifically prohibited miasma of religious bigotry (I don't have to be as polite as the court) forms not just a cloud near, but the entire atmosphere of, the Islamic exclusion order. Id., slip op. at 45–52.

The court respected separation of powers by taking Trump at his word, not based on the "he really meant to say" post hoc rationalizations and spin doctoring from the, umm, communications "professionals." (Of course, if they were truly professionals, there would be an enforceable code of ethics…) But the court respected him, took him at his word, and therefore had no choice. Because, after all, courts are not legislative bodies entitled to rely solely upon ideological and policy preferences: They are confined by the facts and the record and the specific dispute before them.

I suppose it beats telling men who grew up in segregated areas and saw classmates succumb to — at minimum — the continuing vestiges of "three-fifths of all other persons" to "shut up and dribble" because just being citizens doesn't entitle them to have opinions, if you're a talk-show host whose own education was segregated in a rather different manner. But not by much.

10 February 2018

Which Politburo Member Is Absent From the Reviewing Stand, Comrade?

…which is the real question that we must ask if Drumpf gets his large-scale military parade. A year ago, we might have been asking about whether Scaramoucci was off doing the fandango instead of the parade; last week, it might have been which top aide has been thrown under the bus this week (and it will be next week, but predicting which one is not exactly easy).

As a veteran, I magnanimously allow —

Later on, of course, we'll be asking questions about how the official photographs of the event were altered, particularly if Sublieutenant Ogilvy is recognized for his sterling contributions to some purported victory that, in the broader scheme of things, turns out to have been either wholly invented or utterly irrelevant to the battle for control of the Malibar front. Meanwhile, the Two Minutes Hate (of Immigrants) will continue, and we will remain at war with Eastasia (we have always been at war with Eastasia).

07 February 2018

It's Not About the Ads

This past Sunday was the biggest advertising day of the US year: The Super Bowl. For a variety of reasons, I needed to watch the game over the 'net, using authorized, legal access to NBC's sports website.

I loaded up Firefox, and couldn't watch the game. Instead, I got a message that I couldn't see any streaming content in a browser that had an active adblocker — which I use not due to the ads themselves, but due to the privacy-invading tagalongs with the ads. So I closed down Firefox and loaded up Internet Exploder (this is a fully-patched-and-up-to-date Windows 7 machine with a decent-sized screen and decent-quality-and-volume speaker system). This machine's IE installation does not run an ad blocker, so NBC's site allowed me access to the streaming Super Bowl broadcast.

Sort of.

The actual game broadcast played just fine. None of the touted, and in many years more entertaining than the game, ads played. Not one: They were all replaced by a silent placeholder screen. When I explicitly used a marginal web browser that did not have an ad blocker installed.

Internet content providers, you keep using that word ("advertising"). I do not think it means what you think it does. More to the point, it's clear from this set of circumstances that NBC really didn't care about advertising; it wanted the viewer data, presuming that I was glued to the screen despite having to go cook dinner in the middle (I missed out on yet another incompetent "musical performance" — schade). And it wanted the opportunity to plant a metric boatload of tracking cookies, which I manually deleted immediately after the game ended.

That, it seems to me, is itself deceptive advertising…

03 February 2018

Buried Lede Link Sausage Platter

Perhaps not the lede, but at least the overt politics. Not that deeply.

  • A different take on "urban planning" seems necessary, and not just for the arts.
  • If you really need proof that the wrong people are in charge in publishing, consider yuuuuuge advances for celebrity "memoirs" and similar works. Leaving aside the fundamental dishonesty involved with these almost-universally ghostwritten (and seldom acknowledged as such) works — which would at least be a matter for discussion in any kind of writer-respecting society, or in which "trademark as a designation of origin" was enforced with anything approaching an even hand — the real problem with this article, and all of the juicy finger-pointing, is that it stops where it does. As appalling as seeing these figures is, articles like this one don't ask the obvious follow-on question: What are these distortive transactions doing to the rest of the marketplace?

    That doesn't just mean "the rest of the memoir segment," either. Even a megacorporation like HarperCollins has a budget for advances, and outsized advances offered to a few authors act as fat leeches on the advances offered to everyone else. The less said about how this sort of thing affects behavioral allocation of other resources (availability of review copies, promotional effort aside from budget, etc.), the better. On the other hand, a fuller analysis would also help torpedo the myth that the publisher isn't making a profit until the advance has been earned back… and that's definitely not something that the publishing industries want authors to understand.

  • At least I'm not the only one who is skeptical of Apple as a closed-system content provider. Cupertino has just never struck me as sensitive to creators/authors, perhaps — and only perhaps — to a certain type of commodified middlecreature. Welcome to the party, Bloomberg, because fundamentally Apple's plan all along has been to require one to engage in tying arrangements declared unlawful under antitrust law half a century ago.
  • An interesting piece — an interview with "Bob Roberts" — reflects on some of the predatory behavior in H'wood… and prefigures similar predatory behavior that is already unfolding in publishing:

    Aside from his monstrous behavior with women, Mr. Weinstein ravaged Hollywood in other ways, Mr. Robbins posits, adding that, though the producer was hailed for his good taste, “you could make the argument that Harvey’s overall impact on cinema was negative.[…] What happened is, when Miramax became as successful as it became, every studio all of a sudden wanted to have an independent arm,” he says. “So they all set up their little boutique companies that would do ‘independent’ films, quote unquote. And it wasn’t that they were independent or edgy or that the content was risky or provocative. It was more that it was independent of paying people what the studios had to pay them. And so it became this way of making films on the cheap and not committing full studio resources into those kinds of films.”

    When Mr. Weinstein asked Mr. Robbins to star in an indie called Smoke, shortly after the producer had sold Miramax to Disney for some $60 million, the actor remembers confronting him, saying: “‘Harvey, the talent made your company and you’ve been paying them scale for years. And you just put a fortune in your pocket. When are we going to see some of that?’”He said that Mr. Weinstein called back an hour later to say that he would pay Mr. Robbins a million dollars to do the part but ordered him not to tell the other actors, who would still get scale.

    Maureen Dowd, "‘Hollywood Is Changing,’ Says Its Veteran Activist, Tim Robbins," NYT (03 Feb 2018, typography and fake/misparagraphing corrected). Tell me that doesn't sound like the problems created when publishers refuse to release actual, auditable sales figures and rely on "scale" (the virtually nonnegotiable royalty rates) to deal with their own century-old Uber-like problem (not my first — or twelfth — choice of links, but paywalls… the irony of which in this context is just a bit overwhelming).

  • I promised that I'd allow myself only one, context-sensitive reaction to the State of the Uniomn-Busting speech, so here it is:

    It's the fault of law schools.

    So, so many people in government and politics have law degrees. By itself, that's fine. The problem, ultimately, is who is being admitted to law schools, and more finely how law schools sort the admittees into which school and cohorts within each school. It's sort of like comparing basketball teams from, say, Japan and Thailand to those from the Netherlands and Lithuania: There's going to be talent on both sets of teams, but one of them is unlikely to be well-adapted to 1990s-NBA-style every-possession-must-end-with-a-collision-and-a-dunk hoops, because demographics presort otherwise. And what the law schools — and, thus, political advisors — do is sort against science. Science undergraduates spend more time in class (if only due to the difference in credits accorded "lab" versus "lecture/discussion"), and thus have less time for activities, and get slightly lower grades on average. Further, unlike other undergraduate majors like political science and history and business administration, the top of the class in the natural sciences and engineering tends toward medical school and continuing in the sciences/engineering themselves, not law school, further "pre-sorting" the selection.

    And that means we end up with celebrated judges who establish foundational law not knowing the difference between arithmetic addition and the summation of discontinuous functions over discontinuous, noncontiguous domains (or even recognizing the possibilities of discontinuity, noncontiguous domains, duplicative cost allocation, or divide-by-zero errors); a Supreme Court on not which one of its nine members, or even one of about forty clerks, had ever even been in the same room as a semiautomated DNA testing machine, let alone observed how a routine (lab-pristine) sample gets handled and tested, before deciding matters of life and death based thereon; elected officials, disproportionately former prosecutors, who continue to deny climate change solely because some of their moneyed constituents tell them so; I won't go on. But I will call on the Association of American Law Schools to stop relying on "grade point average" as the sole measure of undergraduate achievement that it tracks, because doing so discriminates against increasingly important basic knowledge.

30 January 2018

State of the Uniom-Busting

This entire entry was written prior to hearing anything this evening from Donald J. Drumpf, Genius. Although one must wonder if he has a sideline in herpetology, having popularized the twitting maga… if, that is, he could either define or spell "herpetology."

  • Given the entire context of the State of the Uniomn, perhaps a bit on "partisan gerrymanders" is in order. That's the nice, polite way to say "rotten borough" — and if you don't know what that is without following the link, the success of American proprietors of rotten boroughs in hiding them should be obvious. (I lived immediately adjacent to the former boundaries of one of these jurisdictions for a while when I was stationed Over There, and in some ways not a lot had changed in a century and a half…)

    The courts have punted the "partisan gerrymander" issue on the ground that it is a political question. Perhaps it is in some sense, given the constitutional imperative that each house of Congress is the judge of its own elections (Art. I § 5) — but it is a peculiar kind of political question, one that implicitly asks quis custodient ipsos custodes? The obvious answer is "The voting public, of course, because it can vote out the bastards"… but the whole point of partisan gerrymanders is to make that in practice impossible. In other words, determining that partisan gerrymanders are political questions not subject to judicial oversight is at best circular logic that presumes both individual and institutional good faith on the part of the legislators, when a "partisan gerrymander" by its nature is not in good faith.

  • Sometimes scientists are short, sharp, and serious:

    Does reanimating the dead require IRB approval? Asking for a friend.

    Matt Blaze (HT: Grimmelmann). And sometimes they're not quite as short, even sharper, and even more serious:

    And then there was this, a quote from one of the speakers:

    If you follow your passion life takes care of itself.

    This just strikes me as almost the most owning-class, privileged, ugly position one can take. Yes, passion is important. Yes we all need to figure out What We Want, and what we want To Do in Life. Very important. But following your passion is sometimes only possible with a full support team (including nannies or cooks or secretaries or lab trainees that make it possible to work that 4-hour day) and, needless to say, lots of money. If you are 17 and pregnant and unemployed, there is not a lot a room for following passion.

    Working class women with three service jobs, none of which include health benefits, kids, perhaps an absent spouse, or perhaps a partner that is also working like that, or perhaps has a significant health issue, do not have the luxury of passions. Maybe they get to exercise or have one of their adolescent kids make dinner once in a while. Or get fast food, because there is just no time for cooking.

    "Potnia Theron" Of course, the bonus is that the apparent gender-specificity of the latter arises only because the target audience for the confidence game involved is primarily women — not because there are no males in substantially the same circumstances (excepting the pregnancy).

  • And sometimes, even the "short version" isn't short, being just the beginning of a journey. This is something I began struggling with in the 1980s, when confronting the differential treatments and prognoses offered in the Air Force for alcohol abuse (and even leaving aside the differentials in "referrals"). It took a long time to see what the nonscientists in charge of policy were actually basing things on… and it wasn't even as scientifically valid as "just say no." (As if that was ever an acceptable response in any context, let alone the land of officers' and NCO clubs!)
  • Serious gedankenexperiment: Consider an informal group of control persons in a defined industry grouping, whether among "all" participants in that industry or just the substantial leaders. This defined industry grouping depends upon multiple skill sets — especially skill sets eligible for H1B visa treatment — not just for profitability, but for effective function; there just aren't "enough" American trained workers with those skills…

    …that is, not "enough" at the compensation that this group of control persons wants to provide them (always, naturally, significantly less than the compensation being earned by the control persons. Which leads to the underlying question: Do various customary means that these control persons use to help keep compensation for these critical workers low (including, ironically enough, the H1B visa program itself), or at least limited, demonstrate a combination in restraint of trade in the relevant labor market, whether these means are unconscious, consciously parallel, or intentional? And if not, why is this type of concerted action exempt from scrutiny? Whether as a matter of statutory language or logic, it shouldn't be.

  • Let's consider something a little less controversial. Like controlling hate speech on Faceplant. Even Drumpf is going to be challenged in displaying more sheer arrogance than is on display on any "side" in that particular dispute. But I'm confident that he can (and will) in tonight's speech; he managed it at the inauguration.