Archive for October, 2009

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The actions of a dingbat are not an indictment upon the entirety of the belief system which he or she is a part of.

October 20, 2009

Got that? The actions of a dingbat are not an indictment upon the entirety of the belief system which he or she is a part of.

Repeat that to yourself as needed. There are idiot Democrats and idiot Republicans and (plenty of) idiot Libertarians. Idiocy knows no political allegiance. Nor does prejudice, nastiness, or general asshattery. I know this is obvious, but it’s so often forgotten.

The following scenario happens minimum five or six times a month: someone in politics pulls a dumb stunt, and then the members of the other party run about crowing, having been vindicated in their belief that the entire political party they oppose is absolutely corrupt and irredeemable. Meanwhile, the members of the party the numbskull is a member of feel no choice but to lay low, take their beating, and wait for the news cycle to pass. They fail to speak out against the idiots in their own ranks, because they know their opponents are using this opportunity to claim that the very core of their belief system is embodied by the single reprehensible act of a party member. If they condemn an idiot whose (D) or (R) after their name matches the letter after their own, they feel they are somehow also condeming their own belief system.

Repeat ad nauseum.

The blogosphere displays a general inability to accept the idea that an entity can contain repugnant or abhorrent traits and still be a force of good. This all or nothing categorization is maddening and counterproductive. You don’t somehow “lose” because someone, somewhere out there in the world who shares some political beliefs with you demonstrates themselves to be a person not worthy of respect. But your opponents don’t “lose” either, when it inevitably happens to them.

Merwin and Ulmer’s letter to the editor displays a remarkable level of considered, yet casual, numbskullery and bigotry.

There is a saying that the Jews who are wealthy got that way not by watching dollars, but instead by taking care of the pennies and the dollars taking care of themselves.”

Holy hell, dudes, what the heck were you thinking? Were you high when you wrote that? I mean, clearly, you’ve clearly got some internalized stereotypes about Jews going on, but usually bigots possess the self-preservation instincts to be more subtle about it.

They deserve, intensely, to be mocked and called out for this. But by everyone on every side of the aisle — not as an exercise in cheap political point scoring, but as a very straightforward acknowledgment that their words were stupid and unacceptable, to everyone.

Instead, Democrats are running about crowing how the Republican party is irredeemably racist and this single incident conclusively proves it for all time. Thanks. That’s helpful. Also, you are totally making the South want to vote next election Democrat when you obnoxiously insist the South is a third world cesspool. Really.

And Republicans? Grow a spine. Thank god (almost all of) y’all are not attempting to defend Merwin and Ulmer, but there is an echoing silence where Republicans should be loudly and sincerely calling for a stop to the use of prejudiced dialogue.

I think this whole mess is annoying me more than usual, because in this case, Merwin and Ulmer’s casual prejudice is (rightfully, unfortunately) causing everyone to overlook their actual message. About Senator DeMint’s failed Bill to amend the malignant Consumer Safety Product Improvement Act. Senator DeMint is one of the few people in Congress right now who get how stupid and harmful this bill is, and is one of the even fewer to attempt to do anything about it.

And now he’s a laughingstock, and if I had to guess, hardly going to be inspired to risk more political cred on beating back CPSIA. No constructive debate will move forward, and all that breath that could have been spent on shooting down dangerous legislation will instead be spent on one party getting its punches while it can and the other party hunkering down feeling unfairly persecuted.

Everyone loses.

-Susan

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To borrow a phrase, “Markets in Everything”: Halo3 Coaching Edition

October 17, 2009

You can actually pay someone for Halo 3 lessons. It’s like hiring a tennis pro to help you work on your swing, only you don’t have to go to the trouble of getting up off your couch.

The average market price seems to be around $35 hour, though if you want the best coaching, you’ll have to shell out $50 for a lesson. For the price-conscious Halo3 student, however, there are economy options. Such as hiring this enterprising 13 year old for the bargain rate of $10 an hour. (And for the status-conscious, you can even buy a year’s virtual friendship with a pro for only $35.)

While the websites are not “normal” professional-looking, they are probably well designed for the target market. They come complete with online payment, Halo Resumes, customer testimonials, and even little windows to click on to “Chat with a Customer Service Rep.”

Some of them seem to even be getting an education in supply and demand. Such as when there’s a shortage on a product, slide up the demand curve:

I’ve been doing lessons for Halo 2 and Halo 3 for nearly a year now and have nevered [sic] raised my prices before. However, I’ve gotten to the point where I have a constant backlog of lessons so I’ve decided to raise my prices.

Kids these days. Back in my day, there was no one you could go to for lessons on beating Bowser in Mario Bros. or shooting lessons for Duck Hunt. (Free tip: to improve your accuracy, put your gun so it actually touches the TV screen. Also, don’t shoot the dog.)

They even have helpful tactical jumping lessons. It’s like parkour for people without upper or lower body strength.

And while I recognize these 13 year olds could probably kick my butt at Halo, I do think I could be competitive with them in the Halo3 Services market. No, not as a Halo coach, no one would hire me for that. Instead, I’ll offer, for a small fee, the once in a lifetime opportunity to play Halo with a real live girl.

Judging from the Halo players I run into, the demand is certainly there. And it is most definitely an underserved market.

-Susan

p.s. Hey Michael, want to go into business with me? You can offer lessons in erudite trash talk, you’re the undisputed master of that.

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Michelle Obama Doll Wears Designer Label Knock Offs

October 16, 2009

Because clothes are ‘useful articles,’ strong copyright protections are not available to fashion designers. Essentially, so long as parts that are trademarked are not copied as well, cheap clothing retail stores can go on making knock offs of designer labels all they want. And by my reckoning, that’s as it should be — I don’t think the case can be made that we suffer from a shortage of designer label fashion lines, given how every celebrity and their dog have one, so there are no welfare gains to be had from allowing fashion to be copyrighted.

But over at Counterfeit Chic, there’s an interesting suggestion made that, even if you can’t infringe a copyright by making a knock off of a dress, making that same dress for a doll might be infringing.

MichelleObama_dolls_ChiTrib_10-14-09

These Michelle Obama dolls ‘action figures’ feature dress designs of some apparently well known labels:

And what of the designers whose dresses have made fashion history? Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law. However, the same may not be true of the 6-inch versions.

Let’s consider each dress individually. Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations. Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print. And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright — making the doll theoretically an infringing derivative work.

As Counterfeit Chic points out, this raises another problem. An infringement claim requires proof of copying — but the copying here would almost certainly have been of Michelle Obama’s actual dresses, not the copyrightable sketches. Proof of copying can also be shown by demonstrating that the alleged infringer had access to the original work and substantial similarity, but would a copy of a non-copyrightable item that is itself a non-infringing depiction of a copyrightable work count as access?

-Susan

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The Law of Aliens, Part II: The Law of Post-Atmospheric Extraterrestrial Encounters By Non-State Entities

October 16, 2009

The chairman of space history at the National Air and Space Museum has said that “[t]he idea that a private investor can put together the funds to develop rockets capable of a lunar mission is extremely speculative, verging on fantasy.” And so far, he’s been right.

But there are a fair few investors out there who want to prove him wrong, and one day, inevitably, if we ever want to truly expand into space rather than merely treat the cosmos as a glorified science lab, it’s going to take private commercial initiative to do it. So what happens if it’s a private corporate entity that first encounters intelligent extraterrestrial life?

Public international law (as opposed to conflicts of law) governs, in theory, only the relationships between sovereign states, not the actions of private individuals. The body of space law recognizes this, and rather than imposing restrictions on private spacecraft, it instead imposes obligations on states to regulate the space activities of non-governmental bodies under their jurisdiction.

As an initial matter, it is certainly legal under international law for non-government bodies to engage in space travel. The USSR, during negotiations over the Outer Space Treaty (“OST”), had originally wanted to ban all private space flight, but the U.S. refused to agree to this. However, whether private individuals can obtain property rights in space is a separate, more difficult, question. Although appropriations of resources by states is prohibited, this prohibition was not explicitly extended to cover non-governmental corporations. Many commentators have made the case that private ownership in space is therefore allowed, and have explained how ownership can exist even outside of state jurisdiction by reference to civil systems [PDF]:

The relationship between property and sovereignty differs under common law and civil law systems. The common law theory of title has its roots in feudal law. Under this theory the Crown holds the ultimate title to all lands, and the proprietary rights of the subject are explained in terms of vassalage. Civil law, on the other hand, is derived from Roman law, which distinguishes between property and sovereignty. Under this theory, it is possible for property to exist in the absence of sovereignty.

So for now I’m going to assume that, yes, private property in space is possible, based on a discovery-and-exploitation regime that grants rights to those who first make use of a new territory. (This will be partially in following with the property-ownership aspects of the Larkin Decision, from the Federation Court, holding that “the real owners [of a celestial body] were the flesh-and-blood men who had maintained the occupation.” See Robert A. Heinlein, Stranger in a Strange Land (1961).)

Read the rest of this entry: The case of Asteroid Miners v. Aliens »

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The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations

October 14, 2009

In keeping with LL2′s long standing tradition of providing you with the hardest hitting and most practical legal exposés, this blog will now present an informative series on the law of alien contact.

To begin with, I should probably instead use the word “extraterrestrial” rather than “alien,” as alien is already a well established legal term of art. So this is not the law of foreigners in a state’s territory, but rather the law of contact with intelligent non-human entities that did not originate from earth.

What if First Contact happened tomorrow? How would humans react, and how would the law apply? Assuming the aliens didn’t immediately blast us out of existence, that is. I think it’s safe to say each state would want to have its own say in how things with the aliens go down, and that states would have their own individual opinions and conflicting agendas regarding the encounter. Which means, inevitably, they would each take whatever actions they deemed appropriate and then afterwords seek to justify those actions on the basis of contorted interpretations of international law. The United Nations would also want to establish a central role for itself in the fray, and because it does possess the institutional mechanisms that states tend to follow when seeking to take multinational action, the UN would likely emerge as the primary vehicle through which multilateral discussions and actions would take place.

So international law would be the natural language for states to use when framing these discussions. In this first post, I am going to examine how international law in its current form would govern an encounter in outer space between extraterrestrials and a national or international body. The next two posts will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Read the rest of this entry: What if aliens land on a Canadian space ship? »

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Mortgaging The Future

October 12, 2009

A while back I noted a recent piece that expected 18-24 year olds would become more ”anti-market”.  Another depressing piece about young people is now out in Newsweek, describing how the financial crisis is destroying prospects for members of the so-called “Lost Generation” (in particular, those currently age 18-24). 

These pieces are crushing because they offer such a scathing indictment of the generation that came before us, the Baby Boomers.  For the first time in a long while, it would seem that a generation has placed its own interests ahead of its descendants’.  Boomers have stacked the budget to favor entitlements heading towards an older crowd (Social Security, medical expenditures, ‘pay-in’ based unemployment benefits, etc.), while racking up an impressive deficit.  In a scam of prolific proportions, universities and colleges have exploited the misperception that education is worth any cost, while employers have said wages are “unsustainable” and must be reduced.  As a result, more and more young people (more than two-thirds in 2009) are left with debt (averaging over $20,000 in 2007), which their elders had counseled them would always be “good debt.”  It’s not “good debt” when you can’t get a job.  In the first quarter of 2009, young people underemployment (which includes people who want full-time work but can only find part-time jobs), was more than twice as high for those under 25 (at 31.5%) than for those between the ages of 35 to 54 (13.5%).  Underemployment might partly be explained by Boomers filling jobs that they should have already left, but were forced to keep when their poor financial decisions destroyed their nest eggs.  Those young folks who get jobs get paid less: incomes have fallen for the young faster than they have for the old.  Even common Boomer practices like “marriage recycling” (i.e., multiple, ill-conceived marriages) have left the younger generation with unstable footing from the beginning.  (Although I strongly disagree with their ultimate conclusions, check out this report [PDF] from the AFL-CIO for a good statistical depiction of what’s going on.)

I hope that the dismal situation for the current generation will encourage Boomers to take some steps towards change: stop over-leveraging themselves (in both public and personal spending) and stop blaming economic problems on any supposed “spirit of entitlement” in the young folks.  Maybe then we can stop having to read all these bleak articles.

-Michael

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Why Obama Moves at a Snail’s Pace on Gay Rights: It’s Hard to Negotiate When Everyone Knows You Have No Where Else To Go

October 12, 2009

Obama’s speech on Saturday annoyed me, but it was a subdued, anticipated annoyance. Everyone knows Obama’s done jack all for gay rights and he has no plans on immediately addressing the issue. The only semi-firm commitment he made was to not let his nominees or appointees lose their jobs on the basis of opposition to their sexual orientation — and if he actually keeps that pledge, well, it’s a start.

But this whole hoopla over the “internet left fringe,” no matter how significant the misstatement truly was or whether it was just an extremely clumsy paraphrase by NBC’s Harwood, set me off like dry tender. And apparently it had the same effect on all those pajama-clad bloggers.

Obama’s generically supportive speech leaves a lot of room for criticism:

“I greatly appreciate the support I’ve received from many in this room. I also appreciate that many of you don’t believe that progress has come fast enough. I want to be honest about that. Because it’s important to be honest amongst friends.”

Man, Obama is good at this whole “let’s be candid” thing. See, he’s admitting, indirectly, that he’s been a little slow; he’s softening the blow for when his detractors introduce that irrefutable criticism. And, “It’s not for me to tell you to be patient,” Obama acknowledges. He’s not counseling patience — in a round-about, politician-speak way, he’s telling supporters of GLBT rights that they need to keep doing their thing and not sit around waiting for Obama to get on board. Because it is more efficient for him if he waits for a more opportune time to set his sights on the issue.

The problem is, the problem has always been, gays have no where else to go. They can’t redirect their monetary donations, they can’t start voting against the Democrats — because their only other option is a party that has made clear its choice to court the vote of those motivated by fear and prejudice rather than of those motivated by a desire for equality and human rights. So no matter how much Obama fails to come through for the GLBT wing, he knows — they ain’t going anywhere. Most people aren’t going to vote for someone who denies their equal dignity as a human being, just to make a political point.

Sure, they can reduce funding and grassroots support, but that’s a cost he is clearly willing to accept.

And you know what, I get it. I really do. Obama’s got a giant agenda, and a limited amount of time to do it. There are certain temporal orderings of the issues to be addressed that will allow more overall to be accomplished.

And I don’t necessarily disbelieve that Obama fully intends to come through on his promises — some day. But he has deftly avoided providing any sort of a time table he can be held accountable to, and if I had to guess, plans on making this a cause to take up when/if he’s a lame duck in his second term. By then, not only will there be less political risk for him, but the voter support for such a move will almost certainly have increased as well.

But that’s seven goddamned years away. I liked the fierce urgency of now better.

-Susan

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There Is No Room For Compassion In the Law

October 11, 2009

Although I agree with the ultimate outcome of the case, a Florida appeals court issued a funny (or tragic?) decision the other day when it effectively ruled that “benevolence and compassion” have no business affecting a judge’s decisions.  The appeals court reversed a lower court decision wherein the judge delayed a foreclosure sale on compassionate grounds.  (The trial court explained, inter alia, that she ”was just trying to make everybody happy.”)  Noting the poor economy, the trial court hoped to allow the couple enough time to file a bankruptcy petition.

Quoting Justice Cardozo, the appeals court reminded the lower court about all the things a judge is not:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

In other words, no matter how bad the economy gets, judges still have to apply the law, not their feelings.

-Michael

 (via ABA)

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Candy = Crime

October 11, 2009

A new study [abstract] (via Kottke) suggests a link between daily childhood candy eating and crime.  Apparently, 69 percent of people* (in a studied group) who committed crime by age 34 were daily candy eaters. 

What kind of parent gives their kids candy daily?

-Michael

*As Kottke notes, some news agencies are reporting that 69 percent of daily candy eaters became criminals.  That, of course, is an entirely different thing.

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DNA Testing Waivers: Are They Legitimate?

October 11, 2009

A recent article in the Washington Post (via Volokh), discusses a Bush administration policy that requires defendants to waive their rights to post-conviction DNA testing in guilty pleas.  Under the Innocence Protection Act, defendants are permitted, under certain circumstances, to request post-conviction DNA testing of evidence related to their accused crime if they assert they are actually innocent.  In some U.S. Attorney offices, however, defendants who plead guilty are required to waive these rights, ostensibly to keep them from filing frivolous motions to harass prosecutors.  The Obama administration is reviewing this policy and pondering the end of the waiver practice. 

I think that rescinding the policy would be a great idea.  However, in reviewing the actual statute, I’m not so sure that these waivers are permissible as it is.  Under the statute, defendants are permitted to ask for DNA testing so long as they have not “knowingly and voluntarily waive[d] the right to request DNA testing of that evidence in a court proceeding.”  I’m not sure waivers are “voluntary” if they are required in order to receive the benefits of a guilty plea.  Black’s Law Dictionary defines “voluntary” as “unconstrained by interference; not impelled by outside influence; without valuable consideration; gratuitous.”  It seems to me that in this situation a defendant’s waiver is certainly not without outside influence–he waives only because of the threat of trial.  Admittedly, some might argue that no defendant is required to plead guilty.  But a defendant who admits his guilt with regard to a particular crime should not be forced to enter the crapshoot that is the jury trial. 

Putting aside the wording of the statute, we need to recognize the fallibility of the guilty plea.  People (obviously) make these pleas for a number of strategic reasons unrelated to their guilt or innocence.  Discouraging post-conviction DNA testing after guilty pleas essentially concedes that (1) we have innocent people in jail; (2) we have proof that could get them out; and (3) we don’t care.  The Washington Post article quotes the acting U.S. Attorney back in my old hometown of Macon, who justifies the policy by observing that “[i]t saves [the government] a lot of spurious litigation down the pike.”  Eliminating post-conviction relief via habeas corpus would also save a lot of spurious litigation, but we recognize the important purpose it serves: every once in a while someone should legitimately be released.  Why should IPA testing be any different?

 -Michael

Update: Susan asks: “I do remember from bar study that case about the defendant claiming it was coercion when the prosecutor offered him a choice of “take this plea, or I’ll jury trial your ass for a much much worse offense.”  What’s the difference here?”

My response I would say that with your example, you’re trading your right to contest the charges in a judicial proceeding for the lower sentence. In the IPA context, you’re trading your right to actually prove your actual innocence via scientific evidence for the guilty plea to which you would otherwise have been “entitled” to.

Of course, Susan makes another good point that one “could always plead guilty anyway, you [would just] have no control over the [sentence] you get.”