Oktoberfestwurst

Civilization ends at Quantico. Today.^†

• Speaking of obsessions with appearances (see also the note below), I suppose I should be happy that my appearance allows me to pass as an upstanding American of northwest-European ancestry. The contrast with some other people brings the world beyond Mayberry into a videographer's focus.
• One meme that continually annoys me is celebrities (of all kinds) misusing their platforms to spout bullshit, despite their best intentions (which are sometimes, but not always, good intentions). This all too often results from a passionate and personal interest not backed up by any study or exposure beyond their own personal experiences — an argument from authority, with the authority in question being celebrity and not expertise. Two current examples:
  • Jennifer Lawrence — a talented actor — went for the soundbite and missed when she proclaimed that Israel's atrocities in Gaza are "no less than genocide." They are certainly no less than atrocities; they are certainly no less than indefensible. However, precisely because the stated target is a political opponent (however virulent and unjustified its positions are), the war crimes at issue are not technically genocide — which requires as its target an ethnoreligious identity.

    Ms Lawrence is right to be outraged. But words matter, especially when they're technical terms, especially near the eightieth anniversary of establishing their meaning — and consequences. That's not just for this instance, either: It's for the future.

  • Ms Lawrence's error is misuse of a technical term (encouraged, admittedly, by all-too-common misuse of that term in general discourse, often by those who should know better). This rather pales, however, next to a celebrity author accusing the actor who played the Mary Sue character in films of that author's most-famous work of "ignorance" for stating views closely aligned with that character — even if the subplot encompassing those views never made it on screen. Perhaps Ms Rowling's views have evolved since SPEW made its way onto the page a couple decades past. Perhaps there's a (private) incident or two in Ms Rowling's past that explain her feeling threatened by those whose gender identity does not match their at-birth genitalia (I feel no need to delve into it; many people have similar otherwise-unexplainable personal reactions, distinct from outright bigotry). But proclaiming that an actor with significant on-set and full-production exposure to the film industry — not to mention an education split between Oxford and the Ivy League — is "ignorant" about the full scope of, and personal rights concerning, those issues from the security of one's Scottish castle without disclosing any nonconclusory basis is more than a bit self-defeating. Or, at minimum, self-deceptive.

    If there's oblivious ignorance in this tiny teapot tempest, it's in the author's extension of unstated personal experiences or perceptions to universal declarations of (non)rights. Sadly, that's far too common a problem; the fundamental difficulty is that "civil rights" cannot be founded on whose turn it is to be the bully.

• On a slightly less obviously emotional controversy (but in the end equally so), consider the value of "a book," whether for outright piracy or to libraries. As to the latter, it appears that the publishers have learned at least a little bit since US v Apple, Inc. — they've done much better at hiding any price-fixing conspiracy from view, just as they have with "e-book royalties are 25% of net." Why yes, I am suggesting the (probable) existence of multiple loci of antitrust perfidy in commercial publishing.
• In a result remarkably similar to "dog bites mailcarrier," a study that appears to have adequate controls has concluded that anti-phishing training for employees doesn't work. What would work better is always reading e-mail as plain text, so that any mismatch between where a link says it's going and its actual address is immediately obvious; that, however, would conflict with sales-and-marketing memes and graphic design pushed elsewhere by many employers…
• I suppose we could just continue to obsess over the unfitness for purpose of tax systems and burdens. Yeah, that's absolutely going to involve fewer hidden agendas, conflicts of interest, ignorance, and bigotry in favor of inherited advantage of original position.

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†  The contrast here with the CINC is beside the point — he's a civilian. The real problem is that the height-and-weight standards (not official) are largely established with a view toward "proper military appearance" (and fit into existing vehicles/aircraft/vessels) and not to capability as a warrior. A 177cm man weighing in at 95kg is more than 10kg over the standard but suitable as a starting running back. This is just slightly off… as was being a rail-thin football player (the other football) at the other end of the scale. "Warrior ethos" my avulsed toenails.

The contrast with the slack/missing mental fitness standards must be left for another time.

Don't Touch That Remote!

We now return you to your regularly-scheduled program platter. Unlike the local Sinclair-owned ABC station. Apparently, Sinclair has no decency.

• So, the military academies may accept the so-called "Classical Learning Test" as part of a candidate's admission package. Somehow, I suspect that text neglects some parts of an education in the Classical Age, so I'm not certain that will be fit for purpose. The academies already have lots of educational blindspots; I'm not sure that encouraging candidates to have even more fits the concept of a citizen-soldier-officer.
• I suppose nobody should be surprised given this Administration's hiring imperatives and screening of acceptable journalists. Not that I've ever seen either of those in action before… oh, wait…
• One might think the current Administration has been inspired by Disney — notwithstanding that Mr Kimmel was/is broadcast on a network subsidiary thereof, and that the current corporation isn't the actual creator. Put that together with largely illogical territorial restrictions and other overclaiming of copyright rights and… it all seems quite usual.^†
• Then there's the information-security-system version of a gun-nut slogan:

  Security systems don't spill secrets;

  People spill screts.

  Schlage didn't produce an "insecure lock" when the resident left a spare key under the flower pot by the front door. Unfortunately, the packaging of passkey systems — and especially the use of "the cloud" and "automatic device synching" — practically suggests that the flowerpot really is the best place to leave your spare key…

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†  This is probably more about civil procedure (at least in the US) than it is about the true substantive rights at issue. Burdens and types of proof, remedies, and a variety of other considerations put an anvil sufficient to knock Wile E. Coyote into next week on the scales in favor of suing under, or at least including, a copyright-infringement theory. (Oops, wrong studio…)

Who Controls the Past Controls the Future

Forty years ago, an attempted "lone-actor" assassination of a politicoreligious leader — blamed upon an out-of-power political disorganized viewpoint with trappings of religious dissent — was less successful than the recent attack on Mr Kirk. The 1985 attack was followed by months of vicious, and yet at times almost randomized, suppression of all opposition, usually asserting that all opponents were ungodly and dangerous to the very fabric of society, invoking religious orthodoxy as the foundation for determining a viewpoint's (or individual's) merit. This included cancelling-although-they-didn't-call-it-that of a prominent comedian.

If you searched your memory, or even the 'net, for attempted assassinations in the US in 1985, you're probably wondering if I was riffing on New York City mafiosi or a cult in Oregon. I'm afraid you were looking in the wrong place entirely, at events not nearly as parallel. It was that "in the US" that let you down; my source material was a few thousand kilometers distant (N.B. despite the URL, this item is not paywalled).

Why yes, I am comparing the MAGA movement as epitomized by Turning Point to extremist theocrats whose justifications for particular doctrines rooted in bigotry shifted unpredictably between the archly political and sanctimoniously religious, depending upon rhetorical convenience of the moment more than anything else. This inherent tension between two clauses of the First Amendment — free exercise and sectarian nonestablishment — is one that the Founders were themselves too close to to recognize, and their rhetoric failed them. And us.^†

The true "Orwellian nightmare" alluded to in the quotation-title of this post is founded upon an intentional rhetorical device in the service of totalitarianism — the depersonalization built into Newspeak. Most of the time, people who quote 1984 actually misquote it by inserting personal pronouns: "He who controls…" This necessarily misses the point of Newspeak, which more than just reinforcing whatever present views the Party wished to present was about removing the ability to dissent by removing the individual: No individuals, therefore no individual thought, therefore no dissent. The irony that the only path toward understanding of the magnetism of the distressingly parallel religious nationalism of 1980s Iran and 2020s MAGA/Turning Point/hopefully-not-all-of-America requires rejecting Newspeak and embracing consideration of the individual at a fundamentalist (!) rhetorical level is definitely too far from mainstream discourse in the respective communities. They don't want anyone to even have the ability to express such dissent. And that's rather my point.

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† Perhaps the greatest irony — and one in distinct contrast to the "beliefs" of some prominent Founders — is that neither the language of the First Amendment nor the language of acceptable political discourse since acknowledges even the existence, let alone validity, of choosing the ultimate disentangling of politics and religion: Rejection of religion. With very rare exceptions, atheism and agnosticism are just as much a part of the American conversation as (in America's cramped perception, anyway) sex was to upper-middle-class Victorians — that is, let's not talk about the icky thing and maybe it'll go away.

The Blame Game

Since I like to think my emotional maturity is greater than eight-year-olds excusing their playground bullying by yelling "He started it!" — or having their gang members do so for them — I'm obviously unsuited for contemporary political discourse. That said, I am completely unsurprised by the utter bullshit in both rhetoric and other reactions surrounding Mr Kirk's untimely and inappropriate demise.

It was an assassination, and worse yet a private-actor-on-private-actor one. Therefore it was wrong. That Kirk engaged in hate speech, that his organization did so, continues to do so, and will do so long into the future is just as irrelevant as a "justification" for the atrocity of assassinating a non-government actor as Hamas engaged/engages/will engage in hate speech has as "justification" for the atrocity of the Israeli response to the people of Gaza in the last two years. Put another way: There is no number of wrongs n that makes a right — and that's especially so when we've got unaccountable private actors doing the counting… or identifying what is "right."

The FCC chair can go perform unnatural acts upon himself with a splintered 2x4 for his threats and overreaction to a less-than-fully-informed comedian's speculation about the accused assassin; so can management at ABC. Kimmel's remarks were inappropriate… and entirely expected in the current media environment. The FCC chair going medieval in response because those remarks could have been interpreted as attacking an ideological group that said chair needs to at least placate violates said chair's oath of office. Hint: Comedians tend toward indecency in their remarks; that Mr Arouet had to spend a significant part of his life in exile is sufficient "precedent" regarding government misconduct in response.

None of which is to excuse Kirk, Turning Point, bigotry, or resurrection of the Know-Nothings rebranded as "MAGA." <SARCASM> Of course, you should expect that reaction from this blawg; its author is an intellectual. </SARCASM> An intellectual who despises hate speech, holds those who rely upon it to advance their (seldom entirely disclosed) agendas and self-interests not just in but beneath contempt… and who, having been professionally concerned with the consequences of active and partisan suppression of hate speech for decades, believes that the medium- and long-term effects of suppressing hate speech are worse (more often than not). So, Mr Carr: It appears that you want to add an eighth word to the seven that a misguided Supreme Court said you can't say on radio — at least when it's applied to someone other than the speaker.

Neither is it to excuse Kimmel's poor word choice (at best, if one believes him that his remarks on antisocial media were out of context) or readiness to use precisely the same mechanism as Mr Kirk did routinely: Equation of a disagreeable (even irrational) belief on one issue with membership in an unsavoury group (especially when that unsavoury group is far less than unified). There's a difference between being utterly disgusted with views and viewpoints, and attempting to excuse execution for thoughtcrime.

I therefore sentence both Mr Kimmel and Mr Carr — and, once I track them down (and their parents), the decisionmaker(s) at ABC — to thirty minutes' detention after school, during which they will write "I will not try to be Pyotr Rachkovsky in public" on the whiteboard. Unaided by any generative-AI or cut-and-paste function. Spelling counts, although I'm not going to require proper Cyrillic rendering of that proper name. And that's the end of it — the cricket paddle will be used only for striking cricket balls.

A Different Drummer

Unfortunately, the spelling here is just about as good as Nigel's understanding of volume controls…

• Perhaps a prediction for the future: Brazilian ex-President convicted of plotting a coup. From all appearances, more than just plotting — however unsuccessful in execution. At least there was a trial…
• …which is more than some people get. Like this one. No joy here — his message was repulsive, and his public conduct and organization not much less so, but he was still a human being (and more to the point a civilian^†). As the entire point of a democratic-republican form of government is that it's supposed to operate by persuasion, assassinations of those who profess opposing viewpoints reflect something much darker, more insecure — even impotent. <SARCASM> It's worked so well in this country for suppressing opposing views in the past, hasn't it? </SARCASM>
• Meanwhile, the impending demise of the Department of Education will leave untouched an educational void right down the street, whether measured on some standardized test or otherwise. Maybe we can get him a good factory job, for much the same reasons as that first sausage on the platter implies…
• Ignore that e-mail from a Nigerian prince — or, perhaps, ponder its connection to the other sausages on this platter (looks like I forgot to separate the links before serving — again).

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†  That matters for Reasons. Even if one considers the current American "conversation" a manifestation of an ongoing civil war…

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.

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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…

Ghost Peppers and Classic Rock

This platter gets overspiced rather rapidly, I'm afraid. I'm just trying to cover the faint odor of rot from the less-than-wholesome ingredients.

• The least-spicy sausages on this platter are the IP-flavored ones. These days, IP-flavored almost certainly involves something calling itself "artificial intelligence", especially when hoist by its (their?) own petard. Of course, one need not rely on advanced technology to find IP perfidy — mere humans can breathe deception, too.
• Senator Turtle thinks the present somewhat resembles the past, specifically the 1930s? No, really?

  Leaving aside that he's almost got first-hand memories of the 1930s,¹ and the obvious and parallel counterproductive tariff bullshit, and the overobvious aspirations to become Reichskanzler just down the street from him — not to mention familiarly-named right wingers in the news in Italy — consider "lifestyle" problems all too familiar to the 1930s (as invoked without specific identification in the musical seasoning of this sausage). One might also consider, on a similar basis that also ignored intertwined side issues,² whether "lifestyle" problems like this one are more than just "lifestyle" problems.

  I suppose I'm expected to be happy that Senator Turtle showed up to the party, however late he is. Unfortunately, he showed up while the paid-off-the-books-below-minimum-wage janitorial gig workers were cleaning up afterward. So, no, I'm not happy. You shouldn't be, either — not even with that gold-plated kazoo you snatched from the table on your way out.

• At least it wasn't a gavel being snatched from the table by rude guests. The fundamental contradiction of completely distrusting the ICC's ability or intent to engage in actual, careful consideration of facts as part of the rule of law, especially when compared to internal dissembling amongst and concerning a plethora of bad actors (and by that I mean the target institutions, not the individual grantees) and/or treating "appalled by atrocities in the Levant, regardless of who commits them" as necessarily meaning "antisemitic," appears beyond the understanding of anyone involved. Which should surprise precisely no one.

  The usual aphorism has things precisely backward: Sure, he's our bastard, but he's still a bastard (and therefore untrustworthy). Delving into that is the ICC's role — even, and perhaps especially, when it's inconsistent with immediate interests.

• Of course, the ICC seldom sticks its nose into mere civil rights when violations are short of death. Whitesheetingwashing that is a domestic issue. (Foreign source chosen with malice aforethought.)
• And then there are apologists who get things partway right (and then implicitly expect praise for their vision and forthrightness). The fundamental problem with both that opinion piece and attacks on the "university system" is that they are searching for "the soul" and "the purpose" in the singular. The entire point of bringing scholarly development, and education, and research (distinct from mere "publication"), and public service together into a university is that there isn't a singular soul, a singular means of advancing civilization — that not all problems are nails to be pounded into well-seasoned wood produced off-campus by less-prestigious craftspeople, meaning in turn that the toolbox needs to be smarter than a box of hammers. Professors Russell and Patterson do not demonstrate any familiarity whatsoever with laboratory- or field-based research in their piece, nor with the interface and implications of with "social and political issues" at the core of their concerns; engineering, healthcare, etc. are right out. This tunnel vision disserves both their rhetoric and their conclusion and reminds me very much of what happened last Friday in St. James's Library. Then, as they're both law professors, an underinclusive understanding of "research" is probably to be expected.

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1. Presuming that there's no dementia involved… which, because I've had no direct observation relevant to that, is only an assumption. "Good faith," "grasp of reality," and "actual intelligence as distinct from cleverness" are each another issue entirely.
2. Cf. my late client (and friend) Mr Ellison's contribution to a six-decade-old TV series, and the implications of attempting to apply "alternate history" models in reverse. Not to mention the costs involved no matter what. <SARCASM> But then, externalizing costs is a good thing, right? It supports higher stock prices, and thus higher executive salaries and bonuses! </SARCASM>

Footlong Follies

Been busy doing statistical analysis of something cautioned against via cliché, so this sausage platter has not received an awful lot of care. As if anyone could tell from contemporary news cycles…

• Legal lore has it that a moderately competent prosecutor can get a grand jury to indict a ham sandwich. A chain-store sub sandwich, however, requires more. It's possible that:
  • …smoked turkey and roast beef have qualified immunity, because there's no established statutory or judicial provision subjecting them to indictment for their discretionary condiments
  • …the US Attorney in question does not qualify as "moderately competent," so the legal lore doesn't apply
  • …this grand jury had exactly as much confidence in the rule of law as the US Attorney in question has expressed for the past few years on Faux News
  • …changes in culture have made the legal lore incorrect — ham sandwiches are generally beyond a contemporary grand jury's experience, due to the increasing prevalence of wraps and fancy variants like panini
  • …this grand jury did not find probable cause that the accused was doing anything other than providing free food to law-enforcement professionals
  • …the accused's intent was to return nonconforming merchandise to the sandwich store (that is just out of the picture in the photo in the linked article), and even this grand jury couldn't find probable cause otherwise
  • …someone on this grand jury was him/herself an immigrant, or perhaps the child of one, and persuasively whispered "Jim Crow" (or "Bull Connor"?) in the jury room
  • …the accused is or is related to a veteran and this grand jury had had enough
  • …this was a hammer in search of a nail, unable to find K Street on a map (further impaired by general reliance on dubious "GPS turn-by-turn directions")
• At least Denmark understands that books need to be just a little bit cheaper without further reducing authors' compensation while enriching noncreative distributors — like streaming has done for composers/songwriters/performers — without the corollary.
• Every so often, it's worthwhile reminding enthusiastic bookbanners that they need to, at minimum, carefully and closely read what they wish banned for themselves. Even when it's a notorious "forgery" (better description would be "propaganda sponsored by the Security Detachment of the Ministry of Internal Affairs"). Of course, actually reading goes very much against the mindset of the enthusiastic bookbanner, so perhaps I'm asking too much. I'd definitely be asking too much of the educational hierarchy in Oklahoma.
• We could just worry about government lies from the perspective of a government official. We'll just carefully forget to consider that (a) those lessons came at the hands of the party that individual is now representing, (b) that the lies were in the service of much the same policy imperatives that individual has supported (and continues to do so), (c) that individual didn't live through Vietnam and Watergate, so he has no concept of gambling occurring in Rick's casino, (d) that those clamoring to get into government (whether officeholders or challengers) don't have a better track record — including that individual, (e) that contemporaneous models for multiple-choice exams disfavor more than four choices.

Gov Mander's Territory

Gerrymandering is once again a thing. These battles between unaccountable gatekeepers — the elected legislators who pass the bills are almost never those who actually draw maps; instead, it's a combination of outside hired guns who lie about their actual purposes and "senior party leadership" seldom in elective office — demonstrate utter ignorance about, invidious stereotyping of, and contempt for voters.

Voters and districts do not belong to elected officials. Elected officials belong to the voters.

A distressingly-large, even dominant, aspect of gerrymandering is a result of continuing to apply eighteenth-century social concepts to even the twentieth century, let alone the twenty-first. During the eighteenth century, "born, lived, and died within 25 miles of point X" was the default; by the time the Voting Rights Act was passed more than half a century ago, it described only a minority, and today that minority is even smaller. During the eighteenth century, for those who "worked," the "workplace" was within two miles of the "residence" for well over 99% of the population; by the time of the VRA it was somewhere between 40 and 60% (depending upon the definition of "worked" and of the "workplace"), and today — even with the COVID remote-work-from-home disruption — it's probably less than 25%. Education, court appearances, government offices, libraries, shopping for both necessities and discretionary/luxury goods, internet access itself… the list goes on. And it's going to continue to change.

I therefore suggest, in an effort to prevent the legislators of America from being a burden on their voters or country, and for making them beneficial and responsive to the Public, that we minimize use of maps at all.¹ This modest proposal is to eliminate "first past the post" elections in all federally-established multimember electoral allocations and in as many others as possible, and instead use a combination of proportional representation and ranked-choice voting. Regardless of the exact mechanisms chosen, this would ultimately show far greater respect for the voter who, say, lives on the north side of Austin, Texas, but commutes to school/a job on the south side of San Antonio, or vice versa; or Baltimore and DC. Even more relevantly, consider other pairings like Naperville and Chicago, Redmond and Seattle, San Mateo and San Francisco — all of which represent a far-more-common circumstance than two major nationally-known cities whose centers are only an hour's drive apart (traffic permitting!).² The map is not the territory, and it's long past time that we actually acted like it — especially regarding elections, when many of the relevant boundaries have drawn themselves through behavior decades or more after being put in place by all-too-often marginally-literate sailors.

Of course, this is merely a "modest proposal": The probability of it even being taken seriously by people who have obtained power based upon electoral maps asymptotically approaches that of the current Administration nominating any current law professor at Columbia to any Supreme Court vacancy opening before the end of this year.³

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1. "Eliminate" would be even better, but there are multiple Constitutional problems with that, beginning with the fiction of "states." Rigid federalism is all well and good until somewhat gets hurt by the fights on the playground, like a little over a century and a half back… This particular modest proposal requires only statutory change, because the power of internal allocation is in fact committed to the states. See U.S. Const. Art. I § 4; cf. also Baker v. Carr, 369 U.S. 186 (1962) (declaring a federal right to voting equality within a state, but ultimately after remand deferring to state determination of methodology and division except when the methodology or division implicates another established federal right).
2. I'm afraid that the voter who lives in Kansas City, Kansas and commutes to Kansas City, Missouri; or lives in New Jersey and commutes to New York City or Philadelphia; or lives in Vancouver and commutes to Oregon — that is, has substantial personal and community connections to multiple states simultaneously — is SOL under the Constitution as it stands. Of course, voters who live in New Jersey are SOL for a lot of other reasons, albeit not nearly so compellingly as those who live in Illinois (let alone Cook County)…
3. With all due respect — no, with virtually no respect whatsoever: Bite me, Senator McConnell. Better yet, read both your oath of office and U.S. Const. Art. II § 2 cl. 2, and consider that they refer to the body as a whole and not any subpart thereof.

Leaving Aside the Illegality…

…as in this fairly clear restriction that's a century and a half old…

• …the Orange Menace — or, more probably, some ineligible for the death penalty insiders — has determined to mobilize the National Guard, turning them from civilians to soldiers, to patrol for crime in DC without adequately determining their objective. Since I can't stop him/them from doing so, in the best traditions of military strategy all I can do is suggest an appropriate target for those patrols — a part of DC with rampant crime that the local authorities have shown neither capability nor interest in controlling. The initial target for an appropriately surgical strike against rampant crime is actually quite close to the White House, thereby presenting a cognizable threat and further justifying use of national-security assets in protecting against it: The stretch of US Highway 29 between 9th Street and 21st Street.

  K Street.

  Some offender-profiling efforts are probably appropriate. Channeling Jessica Williams for a moment, from a classic Daily Show piece that is mysteriously not available for free/easy streaming, profiling should extend to

  [P]eople you suspect of being white-collar criminals. You know, walking around in tailored suits, slicked-back hair, always needing sunscreen if you know what I'm saying.… Look, I know this isn't comfortable, but if you don't want to be associated with white-collar crime, maybe you shouldn't dress that way.… [I]t is a hard fact that white-collar crime is disproportionately committed by people who fit a certain profile. So if you are, say, [a] white, Upper East Side billionaire with ties to the financial community like Michael Bloomberg, you've just got to accept being roughed up by the police every once in a while.

  Further, such targeting would arguably evade the restrictions of the Posse Comitatus Act, as it's hard to envision a greater threat to public order than influence-peddling and bribery (however mischaracterized as "lobbying," "public relations," and/or "petitioning the legislature or executive") a few hundred meters from the seat of government. It would certainly be more excusable than use of military assets to prosecute the entirely-civilian-law-enforcement War on Drugs, and probably more effective too (even when being undermined by other military "mission priorities" with all too similar policy rationales).

• Unfortunately, the US is far from the only source of such problems, chafing at process restrictions on doing what… a certain element… is utterly convinced is not just advisable, but a policy imperative. Sadly, this unsigned editorial at The Guardian is far too genteel in responding to attacks on the European convention on human rights — a convention that goes not nearly far enough, set against the backdrop of not just occasional but default governmental conduct across the continent not so very long ago. Orwell was right: The object of power is power. Attacks on the ECHR Over There, and parallel attacks on "civil rights" Over Here, are not about the merits of policies that are being "impaired," but about restrictions on might equalling right.
• Maybe we'd all be better off if we just relied only on science to set policy. Or maybe not, given that the same sort of people are also trying to influence "science" — or, at least, publishing about it. The courts certainly haven't done anything about it (citations to parallel US difficulties too numerous for a blawg entry, very much starting at the top).
• At that, neither Europe nor the US is as enthusiastic about things as the PRC.

  At least, not quite yet.

Imperfections

Things are slowly returning to normal in the Sharknest, which reflects a rather disturbing linguistic slippage of "normal."

• Professor Sarat muses on the propriety of jail terms, using as examples two… apparent sociopaths. Professor Sarat is well known for his opposition to the death penalty — an opposition that I share because, having been inside the machinery short of and including death, I will not tinker with the machinery of death — which is all well and good. This short piece, however, fails to acknowledge two brontosaurii in the room, both of which are busy trampling the greenery (and leaving herbivore droppings everywhere).

  First, and perhaps most obvious, the purple and orange-striped beast: If not prison, what? Does that alternative do a better job with "punishment" than does prison, is it equally (or more) administrable, and is it equally (or more) ethically acceptable in a context of imperfect human imposition of punishment? (That the death penalty fails all three of these inquiries is not coincidental.) This is the argumentation problem underlying most attacks on public institutions: There's seldom equally-rigorous consideration of potential substitutes — not even when the substitute is "we don't need it at all!" Life and policy and society are not binary Oxford-style debates…

  Second, a bit better camouflaged, the mottled green-and-grey-and-brown beast: What is the objective of imposing adverse consequences upon those convicted of criminal offenses (leaving aside, for the moment, those guilty but not convicted or pardoned for no good reason)? If that objective is not uniform, how do we tailor what we do without undermining "adverse consequences for getting convicted of criminal offenses," especially when we've got imperfect humans involved in the "convictions"? (Don't even think about proposing hallucinating "artifical intelligence" as an alternative…) Whether under the classic "four distinct purposes" model underlying "modern" criminal jurisprudence or another rubric, the individual psychology of the offender inevitably would destroy uniformity, even coherence — and that's no way to win a struggle.

• In an entirely expected result of the initial hearing, the Army demonstrated that it cannot be trusted with aviation anywhere near civilian aircraft. Even moreso when Army aviation standards and culture are such that they can't tell when they are near civilian aircraft.

  This is, in part, a problem with training methods. "Local area familiarization" should largely be handled through intense simulator sessions, especially when that interfaces with "daily life that isn't about the Army." That will not eliminate the need for at least some actual flights, but it should vastly reduce them — to the point at which they can be scheduled and routed to avoid "daily life" or, as in this instance, "needless death." The incentives for doing so, however, are minimized by both historical and cultural pressures, especially within the Army aviation community. (BTW, don't think the Marines, the Air Force, and the Navy are off the hook here — just ask any resident of the southern end of Whidbey Island, including the orcas, about that! Their pressures are different in detail and extent, albeit not in kind.)

• On this blawg, my few persistent readers have probably noticed over time that I try to apply scientific standards where they fit. (They don't fit in evaluating individual works in the arts…) But what are they? Is a free spirit of inquiry enough, or does it require something more? Do standards require adjustment, or is the problem not with the standards imposed on science but the standards imposed on scientists and their careers? Can I write a bunch of obvious rhetorical questions?
• It's not limited to "the sciences," either. History professors have similar problems, reinforced by watching government officials fall off the edge of the world (which is nonetheless round — eppur si muove, figli di puttana) based on fundamentally inaccurate and dishonest data collection (that doesn't even meet any need of the organization collecting the data).

Eminences Grís

These fat bangers are well past the expiration dates on their labels.

• It's always amusing (and almost always disheartening) to watch thinly-disguised partisan-but-self-interested cheerleading, especially regarding elections more than a year out, from the perspective of the "opposition" party. Right now, that amusement is primarily concerning the Jackasses (although locally it concerns the Heffalumps) — especially the refusal to engage with fundamental factors, instead focusing on minutiae. It's fascinating to see "analysis" of Mamdani's primary victory and successful candidates' obsession with "image" that won't engage with the primary problem both parties have: The widespread near-senility of party gatekeepers and candidates. Unless and until the party mechanisms agree that "retirement age means from elective office, too," we're going to have these problems — and that's not happening any time soon, as internal advancement to "gatekeeper" status, not to mention "party consensus candidate" status, is almost entirely by seniority. (And I'm saying this as well within that "retirement age" demographic.)

  Militaries are frequently, and rightly, criticized for being prepared to fight the last war, and for selecting leadership from those successful in the war before that. Even out here in a state so blue it looks like a continuation of the ocean on a map, our "senior senator" is in her sixth term, is about a decade older than I am, and shows no sign whatsoever of stepping aside (which would require generation-skipping!). But nobody is making Castro-going-on-forever jokes about incumbents. Yet.

• This is also reflected within the arts community, especially regarding public access to the arts. Whether based on distribution of copies (even of "newer" acceptable forms of works) or nineteenth-century perspectives on "copying" applied to actually faithful (probable) copies, it's almost entirely being shaped by people too old to be innovative creators who can support themselves (let alone families). Even worse, most of those who control the arts aren't qualified to engage in them — often not even as amateurs and dilletantes.

  Lurking in the background remains the usual problem: cui bono? Certainly not anyone working in areas not already considered "mainstream" — and the demographics of that particular list of "nontraditional" means of trying to profit in the arts are cringeworthy at best. Nor, at the margins, are parallel problems that ignore "age".