03 March 2015

In Like a Lion Link Sausages

If there's a theme today, it's deception.

  • It appears that the Direct Marketing Association actually did something useful. In Direct Mkting Ass'n v. Brohl, No. [20]13–1032 (03 Mar 2015), a unanimous Supreme Court agreed that a Colorado statute that requires non-Colorado vendors to inform Colorado residents that their 'net-based purchases are subject to Colorado use (=sales) tax is unconstitutional, because that statute requires the vendors to speak with the voice of a state whose laws do not govern the vendors — or, at least, not on the basis stated (there's a procedural hedge in the opinion designed to get settlement discussions going). There was also skepticism about requiring the vendors to send a list of customers and their purchases to the state at the end of the year to assist in enforcing the use tax. This is a consequence of the insane sales-tax-is-paid-by-the-purchaser regime that applies to the 'net, in addition to "traditional" mail order, here in the US. (That such taxes are regressive and bad policy, too, never seems to make it into the discussion.)

    Admittedly, this is about the first nice thing the Direct Marketing Association — whose insistence on obtaining cheaper mailing rates for those flyers that keep jamming up your mailbox is largely behind the crumbling of the US Postal Service — has done in years. But it's doing so inadvertently, because its members don't want to slip a notice in with each order that might (I emphasize "might") result in a minuscule marginal cost per order, and hypothetically discourage customers from placing orders again with vendors who comply. (That only 4% of Colorado customers, according to the opinion, pay the use tax in the first place rather undermines that last argument.)

  • Speaking of deception, an interesting piece on media ignorance of food science implicates an area that constantly irritates me, sort of like a flea-bite that just won't heal: The outright deception inherent in the anti-processed-food movement's rhetoric.

    • I have an organic diet already: I don't eat rocks. This misappropriation of a technical term in an allied area — chemistry — only serves to mask everything. In a technical and truthful sense, everything edible in a grocery store (except, perhaps, the salt) is organic, being composed of carbon and hydrogen and a few other atoms (mainly oxygen and nitrogen) as the bulk of its non-water molecular composition.
    • Virtually everything one eats that doesn't come from the fish counter (and even an increasing proportion from there) is a GMO. Selective breeding is genetic modification at least as much as is anything done in a lab. Wheat, for example, is a distinctly human-created crop... as are all varieties of true rice, of barley, of potatoes. Get over the "only salt-of-the-earth farmers can produce healthy food" bigotry: That way lies the Cavendish banana (for another decade or so, anyway). And the less said about the modern chicken — even, and perhaps especially, those birds purportedly raised on an "organic" diet — the better!
  • And, from the department of truly evil deception, here's a history of the perfidy of intelligentcrutable design that exposes its archly fundamentalist, ideological, and ultimately bigoted past.
  • Even more evil deception: The latest (unconfirmable through no fault of outside observers) shenanigans regarding Author $olution$.

26 February 2015

Unhyphenated Internet Link Sausages

Well, maybe not. Hyphenated terms are the English equivalent of German compound nouns… for which I have an obvious, and perhaps even inordinate, fondness.

  • There's an increasing groundswell of controversy over author identification, as a should-have-been-obvious follow-on to the "authenticity wars" from 2006 or so until about 2012. On the one hand, we have advocacy — even dubiously extreme advocacy — of recognizing that not all authors are members of the presumed elite. On the other hand, we have some of those we might expect to benefit from such extremism rejecting overt value-judgments of books based upon single aspects of the authors' private lives (that seldom, if ever, infuse the books themselves).

    That the underlying problem is real is irrelevant, because the artist is not the art (or vice versa), however much, or little, they influence each other. In the end, this is just another aspect of "judging the book by its cover" — it merely extends "cover" to include "marketing department single-phrase description of the author." Both books and authors deserve better than being treated like laundry detergent. Indeed, readers deserve that books and authors are treated better than laundry detergent.

  • In many ways, Frank Underwood is merely a logical extension of Jimmy Carter. In both instances, their greatest achievement was obtaining the power to govern; the actual attempts at governing, not so much. Or so the early takes on Season 3 of House of Cards seem to imply... and, in many ways, remained a subtext throughout The West Wing.
  • An important decision in Europe regarding the (fine, visual) artist's right to proceeds from later sales of the original work gets an admirably clear explanation at the IPKat. (Judicial opinions can only aspire to that kind of simultaneous clarity and nuance.) This matters more than it appears to: It will affect not just European artists, but all artists whose originals are sold in Europe at any time; and it has some interesting implications for the current struggles over musical performances. In the US, we still separate the performer's rights (whatever they are) from the songwriter/composer's rights (whatever they are). Christie's France demonstrates that at certain fundamental levels, that's an deceptive distinction that lawyers are simply not competent to make.
  • "Net neutrality" is now law. The fun part is going to be the challenges to enforcement. "Fun," that is, if that word is an acronym standing for "fouled-up nonsense" (or something like that).

    As a policy matter, this is long overdue. ISPs have long tried their damndest to get all of the benefits of being common carriers — such as insulation from liability for merely transmitting customers' libellous statements, see 47 U.S.C. § 230 — without any of the responsibilities that go along with being common carriers. One of those responsibilities is equal treatment; it's why your phone bill does not distinguish, within calls in the same area code, with whether it's a business, a government office, or Grandma.

    The problem with net neutrality is that it has been (mis)characterized as "regulation of the internet," and therefore A Bad Thing By Definition. Both ends of this rhetorical strategy are at best disingenuous. A requirement that one not discriminate is literally a regulation... but so are the purported standards of discrimination that the requirement to avoid discrimination replaces. The sole difference is that invisible private parties set those standards of discrimination; it's still regulation, it's just not necessarily a federal agency doing it. I'm also perplexed that this nature of regulation could necessarily be A Bad Thing By Definition, any more than a speed limit in a school zone is A Bad Thing By Definition. Nothing exists in a vacuum, and especially not on the internet; trying to pretend otherwise is at best foolish.

    The only real question is whether the FCC has statutory authority to regulate. Keep in mind that the last set of court challenges, led by Verizon, were to similar regulations that were adopted under a different (and by its own terms much narrower) statutory section. The courts determined that the narrower section didn't quite reach far enough, but explicitly left open whether other — on its face substantially broader — authority that the FCC had not relied upon could justify treating ISPs as common carriers.

    In the end, this will be a case of B'rer Rabbit ending up in the briar patch. General customer demand was going to force ISPs to upgrade their systems to the levels seemingly "required" by Netflix et al. within the next couple of years anyway; the internet "fast lane" is just a way for the ISPs to try to charge a rent to those senders whose business model most depends upon that faster access. The unstated, interesting corollary, of the FCC's decision today will be found on customer bills in three or four years after local rates get considered... and won't that be fun for everyone?

22 February 2015

Link Sausages Aged a Full Year

It's that time of year. Again.

  • This would be my reaction if the Fashion Police were to arrest me at the Oscars this evening:

    That's right: I'm one of those silly people for whom function comes before form... and I'm really not buying the fashion industry's various imprecations that:

    • Men don't actually put anything in shirt pockets any more, so we can just do away with shirt pockets... except for the one type of men's shirt (the broadcloth dress shirt) in which men really don't put anything in the pocket, so we'll keep those.
    • Everyone is the fashion industry's bloody billboard and really wants and needs to proclaim — with a logo (usually some combination of ugly, pretentious, and just plain stupid) — exactly what brands of clothing one is wearing at all times. Especially for anything that is intended primarily for wear outside of an office building in Manhattan.
    • That goes double for shoes, and even includes shoes suitable for business-travel wear. And shoes are not for actually walking in, let alone running in — especially not if one's foot size is not more appropriate for Sasquatch (and this in an area with a high proportion of shorter-than-Vikings Asian men and women).
    • Despite the name, men actually do not do anything that might cause one to break a sweat in "active wear," so none of it needs to breathe at all — especially not on the sleeves, because nobody ever gets distracted or loses a grip on something when sweat drips down one's sleeves. And it's even more important to proclaim clothing brands when being inactively active!
    • Every belt that is not a hard-lacquer-finish strip of leather must stretch and must have an awkwardly prominent buckle.
    • Even in an area purportedly renowned for sudden chills, heavier-weight shirting materials are just too much; instead, we'll deal with any tendency to feel too hot with ever-thinner and ever-shinier polyester blends (yeah, that's going to help comfort).

    Although I seriously doubt anyone in the fashion industry could approach the real one, on the evidence of what I've seen of late dick levels typically exceed 80%. And that's not a good thing, even given the purportedly ambiguous gender roles in the fashion industry... because "being a dick" is not a gender role.

    The fashion police themselves? Should dial it back to just being a-holes.

  • Speaking of the Oscars, I probably won't be watching. I definitely won't be watching any pre-shows — not even in the background while I do something productive like picking burrs out of the dog's fur. I just can't build up any enthusiasm for an awards show for films most of which I have not seen thanks to the inconvenience and downright torture of going to cinema in this area. And the less said about fundamental credibility problems with the academy (and the entire film industry), the better: The Academy of Motion Picture Arts and Sciences makes the typical research-university faculty look incredibly representative, diverse, and protective of the next generation!
  • Congratulations to the nominees for the Nebula Awards for best speculative fiction published/presented in 2014. Not to be a broken record or anything, but the Nebulas have one of the same damned problems as the Oscars: It's far, far too soon after the close of the eligibility period. I'm still on the hold list at the library for two of the nominees for novel (and expecting me to get them at the pathetic bookstores in this area is a bit arrogant and class-warfarish when it approaches impossibility to even get to the one store that might — and I emphasize "might," given the questionable taste of the staff — have stocked them on initial release... and actually finding things at the Big Brazilian River is no better).

    And in about a month, I get to lather, rinse, and repeat regarding the Hugos... because there will be an egregious fault with the Hugo nominations; the only question is its nature.

18 February 2015

Left-Wing Shark

One of Jaws's cousins had a, umm, prominent role in the Super Bowl halftime show. That shark on the far left who couldn't keep the beat? That's Bernie. At least they matched the position in the dance line to his politics! Sadly, Bernie is slightly less awkward at those things (keeping the beat and dancing) than Jaws is; Jaws saves all of his gracefulness for feeding frenzies.

  • No link for this one, because it's from local radio. A local Girl Scout has been taking advantage of a... predisposed-to-be-receptive clientele for her cookie sales. With her mother's support, she set up her cookie table for a day right outside a medical marijuana dispensary in San Francisco. Unsurprisingly, she had really good sales (over 100 per hour).
  • Slate finally realizes what some of us did six years ago and points out that commercial e-readers report your reading habits (not just sales) to vendors. Leaving aside that an awful lot of my reading isn't from commercial vendors — court documents, law review articles, etc. — I would find that unacceptable anyway. It's why I load e-texts onto reading devices (like my phone, my laptop, etc.) using a removable storage device... after stripping the DRM and using a third-party reader program that does not (indeed, cannot) report reading statistics to anyone.

    I'm not paranoid about this sort of thing. Really — I'm not.

  • In a long-overdue acknowledgement that something is wrong with the most-heavily-commercialized science journals, Nature and related journals are shifting to double-blind review of submitted articles. Double-blind review prevents both the authors from knowing their reviewers... and the reviewers from knowing the authors. The objective is to focus on the content, not on old-boy networks or reputation of institution or anything else. It (usually) works, although over time both reviewers and authors learn subtle signals that at least give away whether one is in the old-boy network — or not.

    The irony that this is the one truly effective means of brand-building and brand-identification in publishing is left for others to ponder. Any "brand identification" with, say, Basic Books up to the late 1980s, was due to a combination of generalized subject-matter and distinctive editorial vision as perceived by the target audience. (The same goes for Harlequin, although it's a little harder to demonstrate because the "editorial vision" is so top-down imposed.) Nature already has a reputation as a leading outlet for serious, just-behind-the-cutting-edge-of-the-future scientific articles... but also a reputation for being closed to authors affiliated with institutions that are not considered superstars in broad ranges of current research. It's not just a cynical marketing ploy, although there's certainly an element of marketing/publicity/brand identification involved (Nature isn't a nonprofit by any means — it's a bloody vanity press!). This change is primarily about enhancing the credibility of its content. And that's a hint about how one builds a self-sustaining, long-term brand identification: It's not marketing flash, it's substance. Of course, the converse is true, too — I still avoid Nestle products whenever possible, because too many of the same people (and/or their lineal heirs) are in charge.

    The down side is that sometimes reputation does, and perhaps even should, matter in determining the publication-worthiness of an article — even in a scientific journal. The closer that one gets to outside-the-laboratory implications, the more that non-data-based imprimaturs of credibility matter to the substance of the article; there is no content without context. It should matter, for example, whether an article on the relationship between tobacco use and death from lung cancer was coauthored by the general counsel and chief lab scientist at the Tobacco Institute... and that's not a hypothetical, just forty years in the past (and not at Nature).

  • A fluff piece pretends to ponder artists selling out without ever considering either (a) that it's called "patronage," morons, and it's a longer Western tradition than copyright (and seldom a good thing in the long run), or (b) that it's been around so long that The Who satirized it in 1967.

11 February 2015

The Impending End of an Era

Satire can sometimes say in five minutes what it might otherwise take "serious" journalists (especially those who continually attempt to place themselves in the center of the story without paying the price of actually doing all of the preparation) an hour… if they bother at all (what Williams "did" was not acceptable; neither was it all that uncommon).

A note to Comedy Central: I'm embedding this from YouTube because your site uses the ethically unacceptable (not to mention rude) autoplay function. Your marketing folks also need The Cone.

I don't know where Stewart is going next. But I will note that whoever wins the 2016 election, there's going to be a vacancy for White House Communications Director to be filled. Recent experience demonstrates that we can do a lot worse than someone with a well-earned reputation for deflating self-important journalists and politicians.

  • Libraries are still vital, if only because they're far more reliable than anything coming out of a certain arrogant and inaccurate excuse for conspiracy theories beginning with "W" and ending in "pedia." More to the point, libraries implicitly teach the necessity of relying upon, and evaluating, a variety of sources instead of a quick set of not-necessarily-accurate keywords. Hmm… does that sound like what is all too frequently taught as "legal research" these days? Might this be foreshadowing of something else on this platter of link sausages, complete with creepy background music?
  • A thread over at the Grauniad on the conversation about race (and other discrimination) goes spectacularly wrong — in an entirely predictable manner — by confusing "diagnosis" with "treatment." Absolutely, there must be a conversation about race, and gender/orientation discrimination, and other varities of bigotry. Yes, it's an incredibly important conversation that's going to make a helluva lot of people uncomfortable. But employing suppression and bigotry of its own as a "solution" is, to say the least, counterproductive.

    The problem with "political correctness" is not with the recognition, or the conversation, or the earnest-if-humanly-imperfect attempts to keep others from suffering through the same circumstances; it is with the presumption of authenticity and the consequences of raising surface authenticity to the primary imprimatur of credibility… especially at the margins and in overlapping areas. And it's especially poisonous when it results in improper assumptions about what others have experienced themselves; an obvious example is that pale-skinned heterosexual college-educated men without an obviously non-Northwest-European surname are inherently "privileged" in all aspects of their lives… and therefore cannot be listened to, and are acceptable collateral damage. Hint: There isn't any "acceptable collateral damage" — that's the entire point of valuing individuals as individuals, although it's not to deny that there probably won't ever be a reform movement that doesn't have some collateral damage.

    I welcome the conversations, and want to actually learn something and ponder and consider what to do, and then try to do it in my humanly imperfect way. But don't reify the immediate group-dynamic self-interest of certain individuals who have been ascribed credibility on behalf of Group C in place of that of Group A, all the while expecting Group B to just accept that assigning the abuse-of-power vacuum to a different owner somehow fixes the underlying problem.

  • And now, a purely legal/jurisprudential entry. There's a move afoot to further restrict the length of briefs presented in federal courts of appeal by modifying the Federal Rules of Appellate Procedure. I'm even more convinced than I was a couple of weeks ago that this is a very bad idea... primarily because the limits on brief length are so ineptly implemented.

    What is a "word"? Well, it's anything that is counted by the word-processing software. That means that "R. 1:117" (record, volume 1, page 117) is two words... and "Santa Fe Ind. Sch. Dist., 530 U.S. at 310" is nine words. And the difference adds up over the length of a brief, especially when there are citations to multiple versions of legislative history. The obvious solution here is to go to an extreme short form that references just back into the table of authorities (which nobody really seems to use) with a pinpoint, such as "11:1097-98" (pages 1097 and 1098 of source number 11). In short, "Die Blue Book Die!"

    Some parts of the brief are subject to word limits that shouldn't be. The statement of the procedural history of the case should not be; just consider the difference between an accurate and proper description of the purely procedural histories of cases that were decided below on a motion to dismiss, on a motion for summary judgment, and after a jury trial. Then there's the problem of proper tracing for a case that is back up in front of the Court of Appeals after a remand… because if one does not do that, it's not clear what issues have been preserved for appeal (or for what has already been finally decided). And the less said about lawyers and summarizing of facts, the better. And quoting verbose contract language…

    Others have commented on opinion bloat; it seems to me that opinions that exceed the length of all briefs in front of them by a factor of two or more should themselves be subject to word limits, but you're not going to see the judiciary do anything like that. More to the point, the experience of the Illinois intermediate courts of appeal in imposing word limits on opinions demonstrates that it just doesn't work — too often, it leads to an easy deference to inadequate prior reasoning that is no longer relevant and/or on point in the first place, because deference is so much shorter and easier. This latter point is endemic to the common law; I just don't think it needs to be encouraged.

    Finally, and most relevantly, there's a fundamental difference between "on the cutting edge of the law" (where I've done a lot of briefing over the years in both civil procedure and substantive law) and "determining which existing law applies to the facts, and whether the facts were properly established in the first place." Under most circumstances, it just takes more verbiage to be clear, persuasive, and above all lawyer-as-opposed-to-policy-wonkish for the former than for the latter. The Rules make no distinction. They should: And that's the principal problem with restricting the length of principal briefs. One can be overly verbose at 14,000 (or 12,500) words... or painstakingly concise.

    In short, this is a problem of the profession more than it is of substance. Unless and until we actually teach and encourage lawyers to write concisely in everything, every attempt to control bloat is going to have serious unintended consequences. Just changing the Rules as proposed won't actually fix the problem; instead, like all too much in educational policy, it will substitute a measurement for actual evaluation just because the measurement can be done mechanically.

05 February 2015

Link Sausages With Missing Bits

... and somewhat influenced by muscle relaxants.

  • A fascinating essay on science as an outpost of English has some interesting lacunae and interesting implications. The first, and perhaps most obvious, lacuna is its definition of "English." Unlike classical Greek and medieval/renaissance Arabic and Latin, written English is still a rather strongly dialect-influenced language; an article in The New England Journal of Medicine reads discernably differently from an article on the same subject in The Lancet, let alone one appearing in a Springer Verlag journal. The second is that it does not delve into the not-used-for-primary-publication second languages; chemistry, and in particular synthetic organic chemistry, still requires a basic reading knowledge of German, and photochemistry still requires some ability to decode Russian — if only to ensure that one's "new" research agenda isn't replicating something from a few decades ago.

    The most interesting implication, though, is for the influence of scientific language on nonscientific discourse, such as the influence of "English as the language of science" on the policy debates on global warming… and the recognition that the English being used by scientists is not the English being used in policy debates. It's arguably more distinct than mere "dialect," because the shared abstract vocabulary and abstract grammar do not reflect themselves in shared concrete syntax and semantics. More than anything else, this helps explain why Americans don't read as much foreign-language literature (even in translation) as they should. (The lack of availability is just a… bonus.)

  • America may well be Fregian in its predilictions ("the number of a class is the class of all classes similar to the given class" — another example of difficult translation into English from a native speaker of another language) when it comes to the illusory ease of class mobility. In some ways, the article seriously understates the matter because it's only going to get worse as the two great melting-pots of midcentury class contact (the military and the Peace Corps) continue to decline in numbers.
  • About 45 years too late, a few prominent voices in H'wood are objecting to being objectified on the red carpet. I always hoped that someone, when asked "Who are you wearing?" would respond "Well, the shoes came from a cow named Daisy, the gown is woven of a cotton-polyester blend created by Günther from seeds harvested by Miguel and oil refined by Habib, and the conflict-diamond necklace was picked by at least five lovely young women from Namibia whose names I never bothered to learn before they worked themselves to death." Or, perhaps, "I rented this thing from some damned tuxedo shop on Wilshire — talk about me and not my clothes." What I find most interesting, though, is the improper transferrence to blaming it on H'wood: Most of the particular ills described in this article in the NYT are reflected and driven primarily by fashion, not by film. Care to take a guess which coastal US city is the center of the US fashion industry, and especially what passes for journalism concerning that industry (hint: which paper published the article)?
  • An anthropologist wonders about the absence of female characters in fantasy fiction. Her case study is certainly valid, but I think it neglects a greater mythological connection: The myth that "only men are heavily involved in war," which is particularly relevant to epic fantasy due to the Homeric bias and the specter of total war from the Second Thirty Years' War that invests so much of commercial fantasy. There are a few exceptions, such as a brilliant mind in Portland (whose Earthsea books are exceptional because they are not built around a race/dynasty war) and a few others who have not written in the series paradigm, but they are notable as exceptions that demonstrate the rule more than they test ("prove") it.

03 February 2015

Groot "R" Us

Dick Cheney (photo by Stephen Crowley for The New York Times)I finally got to watch the highly satisfactory Guardians of the Galaxy, and I think I've caught a fairly serious factual error.

Rhomann Dey: He said that he may be an... "a-hole". But he's not, and I quote, "100% a dick".
Nova Prime Rael: Do you believe him?
Rhomann Dey: Well, I don't know if I believe anyone is 100% a dick...

It appears that news of the existence of the Dick on the right (naturally) has not made its way to Nova Prime; they probably don't get Faux News.

Lucky bastards.

02 February 2015

Unseparated Link Sausages

What? There was a football game going on between the commercials yesterday? Actually quite a good one, ultimately decided by a brain freeze on the sidelines (and they happen at least three or four times every game... it's just that the consequences were particularly obvious this time).

  • The academic periodical publishing industry isn't like the other twelve. It has a combination of a captive audience and a captive, restricted supply chain that already distinguishes it; then there's the failure to pay authors, with the arrogant assumption that "academic authors are paid for their work by their universities, and we benefit them by validating them for tenure and promotion." Which goes some way toward explaining why the oligopolist commercial academic periodical publishers (Wiley and Elsevier as named in the article, plus Springer and Pearson which for no good reason aren't) are so profitable...

    And I have to refute one bit of bad law-and-economics in the article — rather ironically, as the set-piece for the article is Thomas Piketty's book (as published by an academic book-length publisher), which explicitly denies this assertion:

    Yet the scholarly journals of the world are doing fine: they remain a multibillion-dollar industry. “Their publishers are doing what they are supposed to do,” [Stuart Shieber, Director of the Office for Scholarly Communications at Harvard] explains. “The big ones are large, publicly traded companies with a fiduciary responsibility to maximize profits. They happen to be operating in a market that is dysfunctional in a way that publishers can take advantage of, to the detriment of the social good—and that’s a problem. Access to journal articles takes place in a monopolistic market. Economically, markets are supposed to generate efficiency in the allocation of goods,” he continues. “I’m a big fan of markets—I’m a capitalist at heart.” But “If you want to read something in Cell, for example, you have to pay Elsevier, which owns Cell—and if you don’t like their price, you’re out of luck.”

    (emphasis added, fake paragraphing removed for clarity) Umm, no. A publicly traded company (even a non-US company) does not have a fiduciary duty to "maximize profits." Any duty regarding profits is a prudential — not fiduciary — requirement, that is subordinate to both (a) the cramped, unrealistic, inapplicable-to-publishing definition of "profit" and (b) the actual fiduciary duty to grow the corporation's overall value consistent with the stated mission of the corporation. This latter can include acquiring assets at a low price that will, themselves, grow in value without ever generating a "profit" — they may serve as collateral for capital loans at favorable rates, such as the classic real-estate investment trust of the 1970s and 1980s. Failing to secure enough (especially short-term) profit may piss off some shareholders and result in replacement of board members... but it's not a breach of fiduciary duty unless it results from other misconduct that is a breach of fiduciary duty.

    Note that this extended tangent is, ultimately, the real point of the article: That academic periodical publishing is not like commercial publishing, even when done by commercial entities... and that's quite probably a good thing, if only because the market is not a perfect filtering mechanism for everything. We'll leave aside for the moment that the article itself also demonstrates that academic periodical publishing isn't even in the same industry as academic book publishing! As I've remarked before in a slightly different (but actually quite related) context, the academic/commercial distinction reflects the economic rent for the First Amendment that nobody acknowledges paying, let alone accounts for.

  • In light of the preceding, ponder the forthcoming fracas over Amazon and the BBC while recognizing that the BBC's own corporate charter makes it more like an academic periodical publisher than a commercial press...
  • ... and, conversely, treatment of archly commercial fiction by downstream exploiters. n.b. I note this for the controversy itself, not for the particular facts in this particular iteration of the controversy — if only because the facts are incredibly unclear and contested (and there appears to be plenty of legal malpractice to go around on all sides of this one).
  • Meanwhile, it's going to become harder for speculative fiction readers to find new stuff in San Francisco, in light of the impending closure of the only specialist speculative fiction store in the city. I should also remark that the excuse of "mid-to-long-term increased labor costs" is at most a minor factor here: There are other, deeper-seated problems, beginning with an utter lack of parking. I have bad memories of schlepping heavy bags of books from Foyle's home on public transportation in London — and that definitely led to fewer purchases at Foyle's (by me, anyway). Then there's the unsuitability of the space itself for browsing (some architectural, some internal)... In short, blaming it on raising minimum wage for employees is at best somewhat deceptive, particularly as a reasonable percentage of the clientele (especially the younger set) has its own compensation based on the prevailing minimum wage.

    Just like management to blame labor for its woes.

  • Then there's one of my favorite little problems, which — if one thinks about it carefully — relates to all of the above: How do we select judges? Judges are more conservative than the bar as a whole, which can be a real problem (witness the intransigence of Southern judges — even federal judges — on racial matters, and more-recently on same-sex marriage). And things get worse with an elected judiciary that is unwilling to discipline the elected law-enforcement community.

    Frankly, there's no excuse for electing any person who has substantial discretionary authority over particular instances of justice, at least when that discretion is exercised prior to any verdict: Not judges, not prosecutors, not sheriffs or police commissioners. It leads to an invidious "just hang the guilty bastards, who are almost always to be found among the usual suspects" culture that pervades the entire system. This is one of those times that something calling itself "democracy" is not the superior alternative. Appointed officials must be ultimately accountable to the elected ones, but only in an ultimate sense and only concerning actual misconduct — not policy-level disagreements that almost always result from reification of prior-generation property dispositions.

26 January 2015

Another Randy Newman Memorial Blawg Post

But without any Citizens United rants. This time.

  • Author Ann Bauer thinks that authors need to disclose their sources of income, especially when they're "kept" by a spouse/partner/family fortune. This is not at all a bad idea, but it has a very disturbing corollary. By implication, it assumes that authors who might claim that all of their income comes from/through their publishing activities could do so with some measure of accuracy, and thereby have a valid comparison and meaningful discussion. As Kris Rusch notes, not so much (and her piece is both remarkably restrained and well worth consideration).

    Yes, this is me as a chemist arguing that the combination of continued reification of the Aristotelian model of matter and bad — approaching no — lab technique by those alchemists who question that model (as a side gig from trying to make gold out of baser materials) necessarily means we can't have an accurate discussion on the artistic equivalent of global warming.

  • And at least at present, the "average" author who eschews commercial publishing can't pay for a daily overmilked coffee drink with his/her earnings, either. And even less so if actually paying all the taxes due on those earnings...
  • ... while Carrie Vaughn points out that there's no one universally correct way to publish one's works anyway, along with the obvious inference that the landscape has already changed radically in five or six years and will almost certainly change radically in the next five or six years.
  • Whatever you do, though, don't rely on Wikip3dia for anything, or as a publishing "credit".
  • And meanwhile, the courts and legislators continue to demonstrate that their understanding of both the distributive arts in general and the economics of creators in the distributive arts leaves more than a bit to be desired. The Court of Justice of the European Union has ruled in a way that implies there is no European equivalent of "first sale" for digital products... meaning, in turn, that those who "buy" e-books aren't actually buying them, but paying a nontransferable one-time access fee. Riiiiiiiight. And meanwhile, the same court refrained from being clear in reaching a more-defensible decision on jurisdiction over copyright infringement matters in the EU: The place where there's access to infringing work is a proper place to sue. Well, duuuuuuuh.

    OK, that was perhaps a bit unfair/Pax Americanus-seeming, as the law in Europe really is different. That doesn't make it less silly, though. Congratulations, Europe: You're slowly discovering what the US figured out 225 years ago under the Articles of Confederation... and that like South Carolina, Luxembourg is too small to be an effective nation and too large to be an effective insane asylum. (Remember, it was a Senator from South Carolina who said that.) Federal and federal-like systems require not just supremacy, but a certain amount of cultural deference, to the central authority, or they're really just excuses for hyperformalist evasion of responsibility (like that attempted by the defendant in Hejduk). And that has turned out so well for Europe over the last two millenia or so.

20 January 2015

Joe Friday Was Nowhere to Be Found

The Supreme Court has begun issuing opinions for the October 2014 Term of Court. An opinion in a patent case — that, even more than normal, is actually a question of civil procedure — may turn out in the long run to be a critical commentary on judicial competence with reach far beyond patent law.

What is a "fact," under Fed. R. Civ. Proc. 52(a)(6) (which ultimately draws its authority from the Seventh Amendment, although no jury finding is actually at issue in this particular matter) that must be reviewed only for "clear error" by an appellate court? The majority opinion,1 by Justice Breyer, says that a judge's decision to credit one expert's testimony concerning what biochemists mean when they refer to large molecules as having a range of molecular weights over another expert's testimony on the same issue is a "question of fact" that must be reviewed for "clear error." Justice Thomas dissents that because the context in which the judge made his finding is the purely legal question of claim construction for a patent, the judge's decision was a "question of law" that is reviewed entirely anew ("de novo") by an appellate court. Leaving aside that both sides are wrong from the perspective of a chemist2 and deserve to be condemned to a semester of washing glassware in the lab (where they might actually learn something about the techniques by which molecular weights of complex biological compounds are actually determined), Teva is yet another in a line of cases in which judges and lawyers define what is "fact," and therefore not within the judicial competence to question, and what is "law."

Somebody does have to answer this question, because there really is a distinction to be made. The problem is that the wrong people, with the wrong backgrounds, are making the determinations of what may be reviewed only for "clear error"... and what constitutes "clear error." One need not go so far as eppur si muove; tobacco litigation is much nearer. Ultimately, though, this isn't even an error of fact, or an error of lab technique; it is an error of writing that should have been challenged by every lawyer in the chain, by the Patent Office's examiner, and by every judge. It is not indefinite; it is unclear, but only with 20-20 hindsight by a party seeking to evade (and not to learn or to advance knowledge or practice itself) — and that is a different kind of error that is badly managed by the law. In Teva, the fundamental error was in which kind of "experts" were called upon in the first place: The "correct" experts would have been the managing editors at high-end journals of chemistry and biochemistry, because the art in which one must be skilled is not that of lab technique, but of lab writeups. That assumes, of course, that an "expert" is necessary in the first place... when the legal doctrine that patent claims are limited to what the applicant actually demonstrated should have led elsewhere.

Teva has disturbing implications for non-patent statements of fact, too. I've ranted repeatedly against overinsulation of "legislative facts" from review, and sometimes those intersect. Sometimes a legislature makes a factual statement concerning abortion, or global warming, or disease transmission, in the factual preamble embedded in a statute; sometimes it's buried elsewhere in the legislative history that Justice Scalia is so adament has no meaning. It's even more apparent in administrative proceedings (such as determining the allowable concentration of a pollutant, and the way that is to be measured). There's no place for Joe Friday in Teva: He says he just wants the facts, and this is not an instance of the facts being unclear or contested — it's an instance of deciding what might be a fact in the first place.

But there's a meta-leval implication of Teva that is at least equally important. It is quite possibly right that judges are not competent to determine scientific facts. Or, as Justice Holmes noted in Bleistein, originality or creativity or damned near anything else related to the factual question of copyright infringement. What that says is that we're choosing the wrong people to be judges more than it says that these questions cannot, in fact, be resolved. That's not a good thing. If the judicial system were more willing to admit that the finality of its pronouncements does not, in fact, provide much more guarantee of truth (or factual accuracy) than any other appearance of words in print does, we'd be better off... and not questioning exactly how many generations of imbeciles are enough, for some value of "generation" and "imbecile."

Ultimately, though, there's yet a further meta-level problem with Teva. Contrary to his catchphrase, Joe Friday wasn't looking for facts. He was looking for story: A particular kind of story supported by the individual factual circumstances (whatever, metaphysically, they might be). That is also, ultimately, what is at issue in Teva: What are the boundaries of the story being told by this patent application? In this particular instance, legal doctrine says "authorial intent is the touchstone of interpretation"... and then proceded to not introduce the primary evidence of authorial intent as the critical elements in making its determination. All in all, this is a bad job by all of the lawyers involved, not excluding the judges. That it may have turned on a question of "what evidence is admissible?" just makes the absence of scientists from the decisionmaking process that much more apparent — and inexcusable.

  1. Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., No. 2013–854 (PDF) (20 Jan 2015).
  2. A.B. Washington University (St. Louis). As I've remarked before, sometimes the unjustified absence of scientists and engineers in the judicial system — and the legal profession as a whole — comes back to kick all of us in the gonads. This is one of those times.

    This is not a difficult issue: It was the lawyers' fault, and it's not factual at all. The proper practice would have been to specify the method explicitly, and that would have been required at the better journals in the chemical and life sciences had this patent application been an article submitted for publication. Further, even if the method had not been specified in the article, it would have been disclosed at one point or another in the review process, in lab notebooks, or other documentation — as opposed to lawyers' glosses on it. That the statement of the record includes no reference to any of this indicates that this is not a fact issue, but a typical lawyers' (all of them, including the judge) misunderstanding of what either a "fact" is or how science works.