Stephen Laniel’s Unspecified Bunker

“Ahhh! Keep the ghoulish undead monster away from me, mommy!”

I’m sorry, but I’m unable to see why Kerry continues to maintain the illusion that he’s a viable presidential candidate. Ditto Lieberman, Kucinich and Sharpton, at the very least. I’m sure they’re all great people, and their ideas may in fact be profound, but I think it’s clear that none of them stand a chance at the presidency. I’m not even sure that Dean does, but I think he’s the Democrats’ only hope: the proven leadership, the charisma, the take-no-prisoners approach, the intellectual firepower. I think he’d have no problem standing up to George Bush during a debate. Kerry is politically grey. I’m sure he’s a fine senator (though I’ve never received anything but form letters back from him when I’ve mentioned my concerns), but a presidential candidate he is not.

I may end up eating my words, and Kerry may end up getting the nomination. So be it.

I was about to go dig through the collection of George Will’s columns to find a few that demonstrate two recurring themes I’ve noticed in his writing: 1) that Antonin Scalia-style “interpret the Constitution literally” jurisprudence is the only honest way for a court to operate, and 2) that legalizing gay marriage is the first step on the road to legalizing any kind of sexual practice and any kind of marriage. He’s made these claims before in scattered places, but fortunately he addresses the gay-marriage issue head-on (my cache) in a column dated today. As for the “interpret the Constitution literally” bit, there’s this broadside against campaign-finance law (my cache):

As the Supreme Court writes its ruling, it should remember that six years ago Gephardt proposed to amend the First Amendment with this language:

“Congress  . . .  may adopt reasonable regulations of funds expended, including contributions, to influence the outcome of elections, provided that such regulations do not impair the right of the public to a full and free discussion of all issues and do not prevent any candidate for elected office from amassing the resources necessary for effective advocacy.”

Some people may prefer the simplicity of the First Amendment language — “Congress shall make no law  . . .  abridging the freedom of speech” — that Gephardt’s amendment was designed to improve.

(ellipses in original)

Campaign-finance reforms tend to be one of Will’s favorite targets, and he rejects them for the simple reason that they seem to conflict with the First Amendment. The logic seems pretty compelling to me, though I’m curious whether the Court will agree (in the case which presumably inspired that broadside).

What I’d like to mention, though, is that Will is far less likely to comment on gay marriage as a violation of equal protection, even though the 14th amendment seems pretty unequivocal as well:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This points out a problem I have with Will, and Limbaugh, and all the other people who seem to believe that Antonin Scalia’s vision of the world comes to us from on high: they’re much more willing to apply their favorite judicial standard where it’s convenient to what they believe in. They’re not willing to take a principle and run with it as far as logic would take them. Shouldn’t “equal protection of the laws” pretty clearly favor gay marriage? The logic is simply this: inasmuch as defining marriage to be the union of one man and one woman denies the rights of marriage to gay couples, haven’t gay couples been denied equal protection of the laws?

I assume there are nuances there that I’m missing, but there are also nuances that Will is missing when he blithely asserts that the First Amendment decree to “make no law” literally means “make no law.” It doesn’t, and it never has: we’ve always had copyright laws, libel laws, slander laws, and laws against “fighting words,” and we even used to have Alien And Sedition Acts that amounted to censorship of dissenting voices. (Those Sedition Acts, we might mention, arose during the Adams Administration, when the Framers were still alive and probably knew the “original intent” much better than we do.)

So if Will can charge ahead and assert the seeming lack of ambiguity in the First Amendment, I’ll do the same for the Fourteenth. Why shouldn’t someone who’s committed to intellectual purity in his Constitution demand gay marriage? Could it be that Will — and Limbaugh, and Scalia, and the rest — are the same political animals as the rest of us, and apply our principles more heavily against those things that we oppose?

I was just thinking about the way that people often frame their understanding of the world; I think it’s illustrative. I was remembering little episodes from throughout my life. In one, for instance, a friend from high school said to Adam (in Muddy Waters, Burlington [Vermont]’s best coffeeshop) that something Adam said violated the principle of survival of the fittest. Adam replied that survival of the fittest was a model, not a set law of nature. Then I thought about a point I made a while ago to a friend, in which I mentioned that I thought it reasonable for the government to force certain interoperability requirements on cell-phone companies; she replied that the government can’t do this, because we live in a free-market economy. Setting aside for a moment the fact that the government already sets all kinds of restrictions on business, and that we don’t live in a perfectly free-market economy, the underlying argument seems to be that the country’s free-marketness is an unchangeable thing, or at least that it ought to be violated as infrequently as possible because it’s a desirable trait in an economic system. But the way it’s phrased is that we can’t avoid free-marketness even if we try.

This connects, I think, with the habit of internalizing law as ethics — viewing a proscription against MP3 downloading or drug use, for instance, as a reflection on the (im)morality of MP3 downloading or drug use. It’s questionable whether there’s any connection at all, and in the realm of morals I think it’s pretty clear that there’s no connection: your morals are your morals; while their source is quite often the same source that generates the laws, there’s no reason why the law need be moral. Clearly the slave laws of the 1800’s weren’t.

Taken generally, it’s probably easiest to describe this whole trend as “the habit of viewing the world that is as being synonymous with the world that ought to be.” When you’re trying to convince people of some deep philosophical change in how they perceive the world, I’m starting to realize that this is the biggest hurdle. What we often need is one good model of how a small subset of the world might look under a new overarching philosophy; I don’t think people are generally ready to buy into full philosophies. People might not buy into anarchism, for instance, but if you show them that open-source software works, they might start seeing that fully functioning systems can evolve with no central control. It’s not much, but it’s a start. And I’m starting to convince myself that many people need a collection of smaller pictures before they understand the larger picture. I know I’m that way, certainly.

Speaking of which, I’ve heard people explain their political beliefs in what seems a totally backward way: one friend told me once, for instance, that, “I’m a [insert political party here] so I believe [insert belief here].” It strikes me that ideology (or philosophy, or whatever label you want to give to the set of beliefs) should be an emergent property of the individual beliefs: you are a member of [political party] because you believe in X, Y, and Z; when [political party] starts becoming a justification for your beliefs, you know something has gone desperately awry. And yet I bet we could establish, through very careful psychological studies, that many people unconsciously perform this very inversion. It’s odd to me, and wholly dangerous.

I just remembered a speech by Richard Stallman (my cache) delivered at New York University in 2001. He makes a really splendid analogy between free software and food recipes:

Now, some of you may not ever write computer programs, but perhaps you cook. And if you cook, unless you’re really great, you probably use recipes. And, if you use recipes, you’ve probably had the experience of getting a copy of a recipe from a friend who’s sharing it. And you’ve probably also had the experience — unless you’re a total neophyte — of changing a recipe. You know, it says certain things, but you don’t have to do exactly that. You can leave out some ingredients. Add some mushrooms, ‘cause you like mushrooms. Put in less salt because your doctor said you should cut down on salt — whatever. You can even make bigger changes according to your skill. And if you’ve made changes in a recipe, and you cook it for your friends and they like it, one of your friends might say “hey, could I have the recipe?” And then, what do you do? You could write down your modified version of the recipe, and make a copy for your friend. These are the natural things to do with functionally useful recipes of any kind.

Now a recipe is a lot like a computer program. A computer program’s a lot like a recipe. A series of steps to be carried out to get some result that you want. So it’s just as natural to do those same things with computer programs. Hand a copy to your friend. Make changes in it because the job it was written to do isn’t exactly what you want. It did a great job for somebody else, but your job is a different job. And, after you’ve changed it, that’s likely to be useful for other people. Maybe they have a job to do that’s like the job you do. So, they ask, hey can I have a copy? Of course, if you’re a nice person, you’re going to give a copy. That’s the way to be a decent person.

So imagine what it would be like if recipes were packaged inside black boxes — You couldn’t see what ingredients they’re using, let alone change them — And imagine, if you made a copy for a friend, they would call you a pirate, and try to put you in prison for years. That world would create tremendous outrage from all the people who are used to sharing recipes. But that is exactly what the world of proprietary software is like. A world in which common decency towards other people is prohibited or prevented.

I find this quote really funny:

Christine B. Rocca

I suppose there’s no real point in picking on a random Assisstant Secretary of State, especially in an administration where the State Department appears to have no policymaking authority, but wouldn’t it be nice if Christine Rocca, Assisstant Secretary of State for South Asian Affairs, spoke Hindi or Urdu or something instead of “French, Russian, Spanish, and German.”

For those who didn’t know, Diebold — a manufacturer of flawed closed-source electronic voting machines — has been sending cease-and-desist letters to anyone who links to information about the flaws in their product; Ed Felten provides a good synopsis of the cease-and-desist letter, but now Professor Felten has also mentioned that Diebold has decided to withdraw those letters.

The justification for the letters was the much-maligned (rightly so) anticircumvention provision of the Digital Millennium Copyright Act. Clearly no good law would discourage documenting fundamental flaws in a product, but that’s precisely what the DMCA has done. Swarthmore College took the cease-and-desist requests against its students so seriously that it disconnected their Internet access. If memory serves, Diebold also cease-and-desisted anyone who linked to the offending documents. It was a public-relations nightmare for Diebold.

What upsets me is that — Diebold having now withdrawn the letters — the DMCA won’t get tested in court. This has happened quite a lot since the DMCA became law, so we’ve had very few chances to build any precedent about what the law actually says. Hopefully a court would narrow the application of the DMCA, so that it couldn’t be used for such clearly malign purposes as it was here.

One final note: Professor Felten’s way of describing Diebold’s withdrawal is funny:

Diebold has filed a court document promising not to sue people for posting the now-famous memos, and withdrawing the DMCA takedown notices it had sent previously. It’s a standard-issue lawyer’s non-surrender surrender (“Mr. Bonaparte, having demonstrated his mastery of the Waterloo battlefield, chooses to withdraw at this time”)

Via On Lisa Rein’s Radar (my cache):

Gen. Tommy Franks says that if the United States is hit with a weapon of mass destruction that inflicts large casualties, the Constitution will likely be discarded in favor of a military form of government.

 . . . “It means the potential of a weapon of mass destruction and a terrorist, massive, casualty-producing event somewhere in the Western world — it may be in the United States of America — that causes our population to question our own Constitution and to begin to militarize our country in order to avoid a repeat of another mass, casualty-producing event. Which in fact, then begins to unravel the fabric of our Constitution. Two steps, very, very important.”

At what point do we get really, really scared?

Ed Felten has a good idea: provide some sort of A-to-F grade for end-user license agreements. These are the contracts attached to most off-the-shelf software that deny you nearly every right you could have, including the right to own the software. Some EULAs, as Felten points out, even give the software the right to install spyware on your machine. Since quite often these EULAs are impenetrable and filled with legalese, a simple rating system would help software users cut through the thicket.

You know what’s coming: I’ll suggest that if you really want to avoid nasty licensing agreements, use open-source software that’s licensed under the GNU General Public License. It’s clearly written, it gives the control to you, and it doesn’t give any terrible rights — like the right to plant spyware — to software writers. It couldn’t give them such rights, because you’re free to modify the source code. If someone discovered spyware implanted in an open-source package, the rest of the open-source community would find out about it in a heartbeat.

The more I read about the defects in traditional closed-source software, the more I realize that open-source software solves these problems by design.

More generally, I like Felten’s idea of using simple ratings schemes to convey information where rationally-ignorant people wouldn’t dig into the details. Adam and I were discussing this a while ago: when you go into a store, and you want to know which brand of shoe to buy, there ought to be some source of information that will quickly tell you, for instance, “The AFL-CIO recommends buying from this manufacturer,” or “The Electronic Privacy Information Center recommends against buying books from Amazon.” Rationally-ignorant consumers might very well avoid reading the full Amazon privacy policy, but they will listen to those whom they trust. There ought to be a general method of getting this kind of recommendation out to those who need it.

Via Slashdot: There’s an interesting article in the Washington Post (my cache, appropriately enough) about how often web pages disappear — either because their links change, or because the document has simply disappeared. I’d like to see a further breakdown in the numbers, for instance looking at how many of the links pointed to New York Times articles that one now has to pay for. A lot of newspapers do this with their old content, which is precisely why I cache them here.

The article proposes various solutions, including Brewster Kahle’s Internet Archive and an idea that sounds like something I came up with:

One such system, known as DOI (for digital object identifier), assigns a virtual but permanent bar code of sorts to participating Web pages. Even if the page moves to a new URL address, it can always be found via its unique DOI.

This does seem like something of a hack, though. The DOI is effectively a GUID — a “globally unique identifier.” The thing is, URLs are already supposed to be GUIDs. And as the World Wide Web Consortium reminds us, Cool URIs don’t change. That’s not always possible in practice — for instance, when I moved from my old blog package to Blosxom, I unavoidably lost some links — but it’s a good idea when it’s possible.

Typically when I find a dead link, my first step is to hop on Google and find where the document has moved to. If even Google’s link to the resource is dead, I grab the Google Cache (a really invaluable resource). If the Cache isn’t around, then I suppose I’m screwed. But that happens very rarely.

This suggests that more users should be caching their links like I do. My friend Adam has written a Blosxom plugin that automatically caches outbound links, but I can’t find it right now on his site. I’m sure he’ll set me straight in the comments section.

Bottom line: there’s little reason why the web needs to be that ephemeral, and I doubt that it really is.

Consistently with something I said a while ago, David Isenberg comments on why the end-to-end argument — namely, push all the intelligence in the network out to the edges, and leave the network itself dumb — is a big political statement.

If I didn’t mention it the first time, it’s worth saying here: technology is, of course, a huge cause of social change, quite apart from any votes it moves or coups it foments.

I had the same question: Eugene Volokh asks,

So how come the Writers Guild of America and the Authors Guild, organizations for professional users of words, have what seems to be a mispunctuation in their names? (I’d have thought it would be the Writers’ Guild, or conceivably — though I wouldn’t much like it — the Writer’s Guild, if they want to stress that it’s an organization for each individual writer.) Is there some complicated labor union movement background here that I’m missing? Or are they just trying to make sure there’s work left for the Proofreaders’ Guild?

He says it much more humorously than I would have. But whenever I mentioned the Authors Guild’s complaint against Amazon, I bridled.

Eugene is the same guy who asked

By the way, I never got this — what’s with this paper beats rock thing, anyway? I understand the scissors cutting the paper. I understand the rock blunting the scissors. But so the paper wraps around the rock; big whoop-de-doo. Like the rock is going to care.

I’m really unbelievably happy now, because it seems as though a close friend’s chronic back pain might — might — be over. He got back surgery 10 or so years ago for a degenerative disorder in his vertebrae, and in the past year or so it’s been coming back. They’ve put him on every drug they could think of, and nothing’s worked. They gave him a cortisone shot near one of his vertebrae about a month ago, to no avail. He’s spent many a night in the past couple months with hardly a moment’s sleep, unable to find a comfortable position.

Finally today they gave him a second cortisone shot in a nearby vertebra, and it seems to have worked. He feels almost no pain right now; the little pain he does feel is muscular, not related to nerve damage.

It’s been so terrible to see him in such pain. I’m crossing my fingers that it might finally be over.

I’ve finished with Richard Posner’s great book The Economics Of Justice. It’s well-argued, and a lot of it seems really hard to dispute. I still think it has empirical problems, given the complexity of the phenomena he’s trying to model, and I still think that he’s defining his terms so broadly that it’s virtually impossible to falsify what he says. But it’s certainly thought-provoking, and it’s not possible to dismiss it all that easily. At the very least, we have to engage it on the level of principle: supposing that two people enter into a voluntary contract, what right do we have to say that what they’re doing is wrong?

Adam tells me that I’m involuntarily straw-manning Posner in some way, and that he’s delaying this discussion until such time as we can position ourselves strategically over steaming cups of caffeine. Until then, I will (presumably) continue my involuntary straw-man.

(more…)

I’m almost finished with Richard Posner’s great book The Economics Of Justice. At least the last 100 pages have been a masterful discussion of the Supreme Court’s privacy jurisprudence, including the cases since Griswold (among them Roe v. Wade, of course). Posner’s argument is incredibly powerful, at least in part because it holds no matter what you think of the individual cases: he’s largely arguing that the Court’s privacy decisions have been incredibly incoherent. They’ve ruled, for instance (in Bell v. Wolfish) that cavity-searching pretrial detainees after their visitors have left is not a violation of privacy, but that banning the sale of contraceptives to minors is (Carey v. Population Services International).

Indeed, it’s always confused me why the right to have an abortion is called the “right to privacy.” I understand that it’s premised on a right to have the family of your choice, hence the right to use contraceptives of your choice, hence to have an abortion, but that hardly seems like “privacy” — and it would take a lot of work to pull that right out of the First, Third, Fourth and Fifth Amendments. I’ll need to read the relevant decisions to make the logic clear. But this does seem a long stretch from the rights laid out in the Bill Of Rights. If we think the use of contraceptives (perhaps falling short of abortion) is a fundamental right, we should enshrine that in an amendment to the Bill of Rights. As it is, the tortuous logic leading to Roe has left a lot of us — even those of us who believe abortion should be safe and legal — questioning the legal basis of that right. If we’re going to keep abortion legal, I think we’ll need to convince people a) that it has popular support (as evidenced by the amendment process) and b) that the legal justification is clear (a short line of logic from “the right of the people to use contraceptives shall not be infringed” to the right of the people to have first- and second-trimester abortions, or third-trimester abortions when the mother’s life is in danger). As it is, the right to have an abortion — while it may be important — just doesn’t seem like a constitutional right.

I’m curious what Posner would say if he were facing Senate confirmation for a seat on the Supreme Court. Someone would eventually ask him whether he thinks there’s a constitutional right to privacy, and I’m pretty sure he’d emphatically agree that there is — then direct his questioner to read his book to see precisely what he means. The argument has been subtle and strongly put for hundreds of pages, and it simply doesn’t fit with the sort of sound-bite confirmation hearing that we’re used to.

David Isenberg has a nice survey of voice-over-IP plans. (For the non-techie crowd out there, this means that your phone calls go over the Internet. They tend to be cheaper than traditional phone service.)

I’m trying to decide if I should sign up for such a service. At present my only phone is my cell, and there aren’t yet any VoIP cell providers. I might consider signing up for VoIP service and drastically cutting the number of minutes on my cell (right now it’s something like 1,000 anytime minutes and unlimited night-and-weekend minutes), then forwarding cell-phone calls to my landline when I’m home. The trouble is that my current cell provider charges me every time I forward calls, to the tune of 10 cents per minute. If there were some way I could forward calls for free, I wouldn’t need to keep two numbers. (Yes, I realize that others keep multiple numbers, but it’s nice to have only one. I’ve gotten used to it.)

When you see a movie described as a vulgar, uninspired lump of poisoned eye candy (my cache), does that make you want to go see it?

I might recommend Intolerable Cruelty, the Coen Brothers’ newest film (about a divorce lawyer and a serial divorcée) instead. I just saw it yesterday, and was laughing out loud throughout. That would be kind of embarrassing in an empty matinee movie theatre where you’re one of only four people (the movie’s nearing the end of its theatrical lifecycle), but it’s a really, really funny movie in a lot of ways. And it’s a spoof of all romantic comedies. At points it goes overboard, but those points are far outweighed by its comedic control and rapid-fire dialogue, and George Clooney’s absolutely charming acting. Clooney is a very funny, very captivating actor: Out Of Sight and O Brother, Where Art Thou were both terrifically enjoyable films. I’m glad Clooney decided to move to the big screen; I’m excited to see what he does next.

David Bernstein is reason #1 why I only read those Volokh Conspiracy posters who are Eugene Volokh. But I’ve now syndicated Volokh in my RSS newsreader, and I’ve not yet figured out how to extend the Volokh Conspiracy post-limiting syntax to RSS. Hence I read Bernstein being an idiot again:

Quote of the Day: A London attorney:“You will never change the hearts and minds of terrorists by bombing them.”

That’s OK, I’ll settle for their death. I don’t think we changed the hearts and minds of too many Nazis during World War II, either.

Is he really that dense? If he wants a counterexample, how about Israel? Whatever else we might say about that nation’s moral rectitude, I think we can agree that its policy of shoving Palestinians into conditions of intolerable poverty and bombing them ceaselessly has won them nothing. This has been going on for 30 years, and has brought them no gains at all.

I’m not asserting that Israel must stop the bombing if it wants to move forward; I don’t know enough about the Israeli-Palestinian conflict to say that for sure. I am, however, asserting that Bernstein’s blithe acceptance of violence as a successful way to combat terrorism is simpleminded — which we’ve come to expect from the one-trick pony whose trick is “Gosh, aren’t these speech restrictions ridiculous?” Stick to what you know, David; at least then you sound competent.

I’ve been offered a job at a Boston law firm, doing paralegal-type work. This is exactly what I want, since I can’t yet decide whether I want to go to law school and save the world. I told them I’d get back to them on Monday and tell them whether I want the job.

Those of you who’ve been checking in periodically to see whether I’ve been gainfully employed — including, apparently, my former manager (Hi, Tom!) — can now breathe easier. Or more easily. Or something. And so can I.

I’m not clear on how far the Court’s content-neutrality free-speech law goes. As far as I understand, it establishes that regulations on speech which only affect their “time, place, and manner” are Constitutional. Those speech regulations which are biased in favor of one viewpoint — say, they ban canvassing by one religious group, rather than all canvassing — are presumptively unconstitutional. This is my understanding, to which I welcome correction.

Now, my question is: if a federal law were passed which forbade all speech on the Internet, would it be presumptively unconstitutional as well, or would it only be a “time, place, or manner” regulation? I presume the Court would strike down such a law anyway, having already noted that the Internet is “the most participatory form of mass speech yet developed” and is entitled to “the highest protection from governmental intrusion,” but I’m just curious whether an Internet-wide ban on speech would count as a “time, place, or manner” restriction.

Anyone?

Again via Cosma Shalizi, I find a fascinating post by Mark Kleiman on the street prices for illegal drugs. I’m kinda surprised I missed it, because I read Kleiman so religiously. In any event, check this out:

The bad news is that, in the face of mass distribution, enforcement has a very hard time increasing prices. When I learned about the illicit drug markets around 1980, heroin traded at wholesale for about $250,000 per kilogram and at retail in New York for between $2 and $2.50 per pure milligram, reflecting a kilo-to-street markup of about 10x.

Now, after twenty years of intensified drug law enforcement, the wholesale price is about $70,000 a kilo and the retail price in New York about 20 cents per pure milligram. [*], a factor-of-three reduction at wholesale and a factor-of-ten reduction at retail, reflecting a greatly reduced markup. The general price level, as measured by the CPI, has roughly doubled over that period, so the inflation-adjusted price of a pure milligram of heroin is actually down about 95%.

 . . . All of this happened in the face of an enforcement effort that increased the number of drug dealers behind bars from about 30,000 in 1980 to about 450,000 today.