Fall’s Eve

I, like many, consider September 1 the start of Autumn. In fact, I advance all seasons by 21 days. And most of the time the earth is flat. I thought you might want to know.

What lawyers are doing lately

If it ever appears that projects are being bogged down in legalese, I would posit that it is not because too many lawyers are involved but rather than an appropriate number of lawyers is trying to, and I am choosing my words carefully here, stop stupid shit being done. They are not always successful but at least they try.

So if it ever appears that infrastructure in America doesn’t get built any more and that nothing ever gets done, it is because the doers of this country have, for the most part, become obsessed with doing stupid shit.

Which is to say, I would be ecstatic if any of my children wanted to pursue a career in law; and I would strongly consider disowning them if they went into finance.

Miloš Miljković

Status versus contract redux

Steve Robinson, who always leaves me wanting more so rarely does he blog or podcast, has fostered 50 boys over the years, housed his dying father-in-law, housed his dying parents, and now is housing his daughter’s family of three. Somewhere along the way, the coin dropped:

We have all embraced the idea that a multi-generational home is not a financial “last resort”, a rescue operation, a pit stop to self-sufficiency, or an end game for losers. It is how families normally (should) exist. A multi-generational household is a world-wide cultural norm, a given, not an embarrassing alternative lifestyle choice, pragmatic financial arrangement (nor even an admirable “noble sacrifice”) that says to the world “we cannot afford to sustain our nuclear, self-sufficient family or pay our medical bills”. In short, we all understand that living together as adults with kids is “normal”… even when it is difficult. None of us see ourselves as the recipients of some mercy, condescension, assistance, or being given a “loan” that will come due in some future emotional hostage taking family battle.

This is very not-America-in-2026. There may be a Chud in the basement, but nobody’s happy about it.

I don’t think living with my son’s family will ever be a financial necessity for my wife and me. And my late father-in-law made it his grim mission never to be dependent on his children as his mother was dependent on him after his father’s premature death. I’ve re-written this rest of this paragraph repeatedly; suffice that he succeeded in never becoming a financial burden.

But here’s the thing: I’ll take that burden 9 days out of 10 over the statist individualism of Sweden:

Swedes have come to prize relationships entered into freely rather than maintained by material necessity. Public child care helps women avoid financial dependence on husbands, state old-age homes liberate children from obligations to ageing parents, and so on. (Even marriage is a bit suspect: in France or Germany households are the basic unit of taxation, but in Sweden all adults file independently.) American parents sending their offspring to college must submit proof of their incomes for the youngsters to qualify for scholarships. In contrast, young Swedes are assumed to be on their own: the income of their parents is irrelevant. Their independence is a gift of the state, expensive as it is to sustain.

It’s reprise of what we used to talk about as “status versus contract.” Life without status-based obligations to other people sounds pretty terrible to me.

On this blog’s trajectory

While writing the preceding item, I thought that I must have written something or a few things around October-November 2014, when my wife and I each lost our surviving parent within two weeks and 5 hours of each other. Indeed I did, and I like what I wrote. I think it’s kind of timeless..

Nonsectarian Prayer

I had forgotten that the perfect nonsectarian prayer for public meeting was written many decades ago by one of our greatest writers:

Our nada who art in nada, nada be thy name thy kingdom nada thy will be nada in nada as it is in nada. Give us this nada our daily nada and nada us our nada as we nada our nadas and nada us not into nada but deliver us from nada; pues nada. Hail nothing full of nothing, nothing is with thee.

Ernest Hemingway, A Clean Well-Lighted Place

(I prefer no prayer to “nonsectarian” prayer, and that’s a preference of many decades’ duration.)

Legal news, one click down from SCOTUS

The Institute for Justice publishes a weekly collection of pithy case summaries from U.S. Circuit Courts of Appeal:

…

New Hampshire parents (and a grandparent) are barred from school property after wearing pink wristbands at high school soccer game in protest of a trans player on the visiting team. First Circuit: Seems like a First Amendment problem.

…

During an oversight visit to a federal immigration facility, N.J. congresswoman has a confrontation with federal officials. She’s later charged with assaulting, resisting, or impeding a federal officer. She claims immunity under the Speech and Debate Clause and alleges vindictive prosecution. Third Circuit: She loses on two of the counts against her and we remand on the third. Dissent: Sure seems like she’s being treated worse than Jan. 6 defendants.

…

Allegation: Woman peacefully protests fatal police shooting by grilling hot dogs and hamburgers outside Lafayette, La. mayor’s house. She is arrested for obstructing the roadway, which she wasn’t, and strip searched at jail. Unlawful retaliation for speech? Unconstitutional arrest without probable cause? Fifth Circuit: Qualified immunity. Dissent: Qualified immunity is made up and wrong, and also it doesn’t apply here.

…

Student visiting Michigan court as part of a vocational program falls asleep while judge is giving career advice. Yikes! The judge has her locked up for several hours and then puts her on fake trial. She sues. Judge: The “trial” may have been fake, but I am a real judge entitled to real judicial immunity. Sixth Circuit: We’ll give you points for chutzpah, but not immunity.

…

Is possessing virtual, AI-generated child sexual abuse material in the privacy of the home protected by the First Amendment? Seventh Circuit: Under binding precedent, yeah, it seems to be protected. Two-judge concurrence: Perhaps SCOTUS should give a fresh look-see to its early-aughts precedent on this subject.

…

Arkansas sex offender serves most of his 30-year-sentence, is granted parole, and seeks to live on property owned by family trust. Yikes! His parole officer fabricates a nonexistent daycare nearby and bars him from living there—a situation that other officials, apprised of the lie, do not remedy. A due-process violation? Eighth Circuit: There is no constitutional right to early release, so no.

Short Circuits excerpts for August 28. You can subscribe for free.

I’m a big first amendment guy, but virtual, AI-generated child sexual abuse material, even in the privacy of the home, strikes me as beyond the constitutional pale. I do remember Thomas Becket’s passionate admonition against punishing merely dangerous Richard Rich, but possessing kiddie porn is more than dangerous.

Celibacy, Chastity, Abstinence

Kevin Williamson, after a great accounting of Why Everybody Hates Capitalism, distinguishes three things that too often are treated as synonymous:

Celibacy, properly understood, does not refer to a state of sexual abstinence per se—it refers to the state of being unmarried or the state of having sworn off marriage, with the understanding that Christian morality requires sexual abstinence as a consequence of the unmarried state. Chastity, in the Christian moral vocabulary, does not refer exclusively to sexual abstinence, either, but to keeping sex in its place: Catholic doctrine speaks of chaste marriage, meaning one in which the dual unitive (we Catholics love our jargon) and procreative functions of sex are properly integrated into the marital relationship. Chastity may mean abstinence in one context and forbid practicing abstinence in another. Abstinence, of course, is the word for what often is meant by celibacy: abstaining.

Maybe some day he’ll get around to “immaculate conception,” too (which I didn’t capitalize because Orthodoxy holds no such doctrine, but I nevertheless know what it means).

Power to pick up and leave

British political commentator David Goodhart argues that globalization has created two types of people—the anywheres and the somewheres. The anywheres enjoy the benefits of the new networked world. They move comfortably through cyberspace and around the physical world. Their identity is the identity of the global network. The ability to move around networks freely is the new marker of power. Power is the ability to live in multiple places at once. To have the power to pick up and leave. The sense of meaning traditionally found in “place” is replaced with the freedom found in the app.

Mark Sayers, A Non-Anxious Presence

Shorts

I can’t figure out what made her so loveable. I think it was the sincerity of her artificiality—that she put herself together in the most artificial way possible, but believed in it like a kid believing that a cap pinned to his shoulders could make him fly. When she talked and sang, she was completely direct and honest, even into old age. The rhinestones were heavy, she told a family member, so she wanted to rest on a fluffy bed of cotton in the casket. She was one of a kind. (Frederica Mathewes-Green)
Under the circumstances, handing Darline Graham a Senate seat is tantamount to handing Trump himself a Senate seat. It’s akin to Caligula installing his horse in the chamber, this time with the people’s consent. Which, as others have noted, makes last night’s result feel like a logical outcome for the modern GOP. (Nick Catoggio)
The actual power of an undergrad Red Guard scrutinizing a candidate for some small-time faculty position he is ultimately thankful he did not get is nothing compared to the power of an unelected tech boyar and his greasy shock-troops dismantling the federal government. (Justin Smith-Ruiu)
Vote Republican. Vote red otherwise we’re all dead. … Your support of the Democrat party makes me seriously question how much I’m going to talk to you in the future. I don’t talk to democrats. They’re filth. Period. (Alleged remark of a clergyman grooming an emotionally fragile teenage girl) in the late twenty-teens.
How firm. How furious. How fleeting. (Frank Bruni’s description of one current Republican candidates reaction to January 6. I won’t name the candidate because it fits about 90% of the GOP.)

Elsewhere in Tipsyworld

Your enemies are not demonic, and they are not all-powerful and the right hasn’t always lost and the left hasn’t always won. But if you convince yourself of that, you give yourselves all sorts of permission to do a lot of stupid and terrible things under the rubric of “Do you know what time it is?”

Jonah Goldberg

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on my favorite no-algorithm social medium.

It’s almost over

Not that the replacement of our 2023 calendars with 2024 will necessarily make a difference, but a guy can hope, can’t he?

Legalia

New York Times vs. OpenAI

The New York Times filed a lawsuit on Wednesday against OpenAI and Microsoft over alleged copyright infringement, claiming that the companies exploited the newspaper’s content without permission or authorization to train their AI systems—including the chatbot ChatGPT—and “wrongfully benefited from” the Times’ journalism. “This action seeks to hold them responsible for the billions of dollars in statutory and actual damages that they owe for the unlawful copying and use of the Times’ uniquely valuable works,” the paper argued in the filing.

The Morning Dispatch

Non-lawyers may find puzzling the thought that the main job of law schools is to teach people to think like lawyers. What the heck does that mean?

Among other things, it means that I cannot read an item like this without thinking this is how the common law develops: gripes and competing analogies.

True example: Early in the days of petroleum, Defendant, seeing Plaintiff getting rich off oil wells, slant-drills and taps the same pool of crude oil under Plaintiff’s property. Plaintiff sues, saying he owns everything within his borders from the infernal depths to the furthest skies. Defendant says the crude oil is like a highly mobile animal (a “wild, fugacious mineral-animal” was my property law prof’s description) which is rightfully owned by whoever captures it.

Eventually, a body of law develops from the resolutions of multiple cases, each with some different nuances.

So, is OpenAI like a slant-driller? How did those slant-drilling cases resolve? If the answer were obvious, there’d be no lawsuits or they would quickly settle.

An analyst for Yahoo Finance opines:

The way generative AI works by training on existing data and generating new creative content and text is something that intellectual property as a legal framework has not had to deal with. We’re going to have to litigate and get the ruling from the court.

So this is a very important case that I wouldn’t be surprised that if it doesn’t go all the way to the United States Supreme Court because this has to be settled for us to know what the framework is for generative AI.

That first paragraph describes classic common law development.

The second paragraph is dubious: the Supreme Court doesn’t take cases just because they’re important, and an important case filed in state court would likely not get SCOTUS to review it. But this is probably in Federal Court, since it’s under (federal) copyright law, so SCOTUS might take it if it doesn’t like the decision of the Court of Appeals that eventually reviews the District Court decision.

On whether Trump is disqualified

I detest Donald Trump. It would be a great relief to me, though I cannot bring myself to pray for it, were he (and Joe Biden too, for that matter) to drop dead, soon. Some of his followers would spin conspiracy theories, but nothing any of us can do will stop that whatever happens.
At this stage of our absurdly-long pre-election run-up, it would be terribly, terribly, terribly divisive to exclude Trump from the ballot. What could serve more deeply to delegitimize the whole Presidential election next year?
The legal arguments about the applicability of Section 3 of the 14th Amendment are nuanced, and it’s not just about “insurrection.” The intent of the section was mostly to keep the former Confederate States from sending bomb-throwing racists to the House or Senate, with little worry about a bomb-throwing President, The language of the section arguably sweeps more broadly; but it dances all around naming the Presidency. Did the Reconstruction Congress hide an elephant (the Presidency) in a mouse-hole?
Credible legal scholars deny that the Presidency is a “civil office” of the United States. For instance, Kurt Lash: “According to longstanding congressional precedent and legal authority, the phrase ‘civil office under the United States’ did not include the office of president of the United States. As Joseph Story explained in his influential ‘Commentaries on the Constitution of the United States,’ the congressional precedent known as ‘Blount’s Case’ established that the offices of president, senator and representative were not civil offices under the government of the United States — they were the government of the United States. The phrase ‘civil office under the United States” referred to appointed offices.’“
SCOTUS has tended to go with textual arguments rather than intent. I hope they either revert to intent or find a really persuasive textual reason to allow him on the ballot, and Joseph Story may be just the ticket. Some of Trump’s enemies would spin conspiracy theories or shit-talk SCOTUS, but nothing any of us can do will stop that whatever happens.
Then, if Trump is still disappointingly alive and kicking on Election Day, I hope we collectively kick him to the curb by a really convincing margin. (This would be more realistic if the Democrats would turn their attention away from knee-capping Trump and toward a compelling centrist or center-left vision for 2025-2029.)

Culture

Racism

Martin Luther King Jr.’s most famous speech would not meet Kendi’s definition of anti-racism, nor would the one Barack Obama made about there being too many fatherless Black families. Indeed, nearly everything that Americans have been taught about how to be anti-racist for the past several decades is, according to Kendi’s explicit definition, racist.

Bari Weiss, Stop Being Shocked.

Subrena E. Smith, a person of color as such things are styled, proposes that since we invented race for nefarious reasons, it’s time to banish it.

If terrorists win, it will be the transphobes’ fault

Since January of this year, more than 400 anti-LGBTQ+ laws have been introduced at the state level … That number is rising and demonstrates a trend that could be dangerous for service members, their families, and the readiness of the force as a whole.

Lt. Gen. DeAnna Burt

I’m reasonably confident that General Burt is highly educated, because only someone highly educated could believe such drivel:

You have to be educated into cant; it is a kind of stupidity that surpasses the capacity of unaided Nature to confer.

Anthony M. Esolen, Out of the Ashes. I call “Bullshit” and “Shame on you for trying to shame us, General.”

This is a quote that has stuck with me. Yes, it’s a variation on a populist theme, but there’s enough truth to that theme that The Emperor’s New Clothes has become beloved.

Jung versus Freud

Having felt his own seething unconscious erupt into the midst of normal daylight reality served Jung well in his treatment of schizophrenic patients, who in Freud’s judgment were too far gone to reach, but whose bizarre hallucinations and delusions Jung attempted to comprehend with respect and tenderness. Unlike Freud, who maintained a studied distance from his patients, sitting aloof and serene out of the supine sufferer’s sight, Jung would sit face to face with his charges, bumping knees, exhorting with vehement gestures.

In Jung’s estimation, what healed was not disinterested mind alone following a dogmatic trail through the vast wastes of one’s sexual history, but making contact, demonstrating sympathy, aiming at a comprehensive understanding, allowing the free play of humanity at its best. Jung could see that for patients above the age of thirty-five — life’s halfway mark, or what Dante called nel mezzo del cammin di nostra vita — their principal concern was not undoing childhood psychosexual knots that persisted into adulthood, but rather finding the authoritative spiritual truth that one could found a serious life upon.

Algis Valiunas, Wounded Healers.

That kind of explains Jungian Jordan Peterson’s style, doesn’t it?

Adult movies — and literature

I used to say that an adult movie was one where they kiss and then the lights go out (because the adults know what comes next).

I’ve now read Marilynne Robinson’s Gilead and Home, truly adult novels. What child could understand? A rare treat, too rich to binge-read. I can’t even face wading into Lila or Jack immediately.

Journalists are so predictable

After dealing with reporters through many rounds of violence since coming to power in Gaza in 2007, Hamas understood that most can be co-opted or coerced, and that coverage of Gaza would reliably focus on civilian casualties, obscuring the cause of the war, portraying Israel’s military operations as atrocities, and thus pressuring Israel to stop fighting.

Matti Friedman, The Wisdom of Hamas

Ain’t science great?

Within eight seconds of flushing, a toilet bowl can shoot a plume of aerosols nearly five feet into the air—and straight into your face.
By hacking a Tesla’s rear heated seats, German researchers inadvertently accessed private user data.

The Atlantic Science Desk, 81 Things That Blew Our Minds in 2023

Best Sentences of the Year

Frank Bruni has listed his favorite sentences of the year.

[B]ook critic Ron Charles … noted the publication of “Manhood: The Masculine Virtues America Needs,” by Senator Josh Hawley: “The book’s final cover contains just text, including the title so oversized that the word ‘Manhood’ can’t even fit on one line — like a dude whose shoulders are so broad that he has to turn sideways to flee through the doors of the Capitol.”
In The Los Angeles Times, Jessica Roy explained the stubborn refusal of plastic bags to stay put: “Because they’re so light, they defy proper waste management, floating off trash cans and sanitation trucks like they’re being raptured by a garbage god.”
Of Kevin McCarthy’s toppling as House speaker by Matt Gaetz and his fellow right-wing rebels: “It’s as if Julius Caesar were stabbed to death in the Forum by the Marx Brothers.” (Peggy Noonan)
Ron DeSantis, gives off the vibe “that he might unplug your life support to recharge his cellphone.” (Peggy Noonan)
Too many voters today are easily conned, deeply biased, impervious to fact and bereft of survival instincts. Contrary to myth, frogs leap out of heating pots. Stampeding cattle stop at a cliff edge. Lemmings don’t really commit mass suicide. We’ll find out about Americans in 2024. (Mort Rosenblum)

While I don’t systematically gather, grade, and keep records on such things, I rather liked two sentences from Daniel Henninger:

The most fraudulent word in higher education is “dialogue.” Real dialogue died years ago, replaced by a soft-pillow politics that envelops anything disagreeable and then smothers it.

Speaking of higher education:

Acknowledging a few exceptions among conservative commentators and public officials, we can still say that universities are to Republicans what guns are to Democrats: an issue they are certain is at the root of great evils, but about which they face a massive knowledge gap that hampers their ability to do anything effective, even within the limited space our legal order allows.

Greg Conti, The Rise of the Sectarian University (Compact Mag) I’m seeing enough good stuff from Compact (which registered with me at its founding) to consider paying its pricey subscription price.

After all the hype, it turns out that “Trump without the crazy” is just an awkward, aggrieved, opportunistic, anti-charismatic, aspiring autocrat with a mile-wide cruel streak and the people skills of Mark Zuckerberg crossed with Richard Nixon.

Michelle Cottle, The Best, Worst and Weirdest Political Stories of 2023

On blogging

Much of the social energy of the old internet has now retreated underground to the cozyweb. Except for a few old-fashioned blogs like this one, there’s not much of it left above-ground now. But there’s an odd sort of romance to holding down a public WordPress-based fortress in the grimdark bleakness, even as almost everything (including the bulk of what I do) retreats to various substacks, discords, and such.

Venkatesh Rao via Alan Jacobs

Politics

Holiday greetings

… MAY THEY ROT IN HELL. AGAIN MERRY CHRISTMAS!

I think you probably know who posted that on TruthSocial.

“Christians tend not to hope other people rot in hell on Christmas Day,” radio host Erick Erickson sniffed afterward, which read like a non sequitur in context. Why would Trump care whether people think he’s a good Christian? And how confident should we be at this point about which sentiments are and aren’t condoned by politically engaged members of the faith? Erickson’s grasp of what’s normal and what isn’t for American Christians may not be as firm as he, and I, might wish.

Nick Catoggio, Farewell to Normalcy — The meaning of 2023

If Trump wins …

If Mr. Trump wins the Republican nomination for the third straight time and then prevails in the general election, he will have sealed the transformation of his party, given new energy to right-wing populism around the world, and called into question the principles that have shaped America’s security policy since World War II.

Voters will have ratified the outlook that Mr. Trump has advocated since the 1980s: opposition to immigration, multilateral trade treaties and globalization. They would give him the opportunity to enact more extreme proposals in his second term—including an all-out attack on the “deep state” federal bureaucracy and the use of the military to fight crime, immigration and domestic dissent. They would embrace his view of the press as the enemy of the people and agree to an all-out culture war led from the White House. After hearing Mr. Trump declare across the country that “for those of you who have been wronged and betrayed, I am your retribution,” they will have replied, in effect, “Retribution is exactly what we want. Use the government to punish our enemies.”

William Galston

Adulting for the children’s sake

Adults have a particular responsibility to model and set a template for the young. It is a primary job of the adults in the room, wherever the room is, to show every day, in dress, speech and comportment, what being adult looks like. At least two generations have come up with no idea. Our national style has grown crude and vulgar; this entered Washington some years back, and that only made it worse. It’s a little sad. Washington used to be so old-fashioned, it was one of its charms, it was a throwback. Decades ago you smiled because female members of Congress, in their suits and high-button blouses, dressed like aspiring librarians. Now some dress like aspiring whores. Can I get in trouble for saying that? Let’s find out.

Peggy Noonan

… that Christ may dwell in your hearts through faith; that you, being rooted and grounded in love, may be able to comprehend with all the saints what is the width and length and depth and height — to know the love of Christ which passes knowledge; that you may be filled with all the fullness of God.

Ephesians 3:17-19 (NKJV)

You can read most of my more impromptu stuff here (cathartic venting) and here (the only social medium I frequent, because people there are quirky, pleasant and real). Both should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it.

Guantanamo’s pro bono lawyers

There is a kefuffle going on pitting Liz Cheney (I guess she’s a daughter of the former Vice President) and, I believe, Karl Rove, against the Obama Administration (surprise! surprise!) over the issue of attorneys in the administration having represented Guantanamo detainees prisoners (let’s call the thing by its proper name to promote a little clarity).

There’s some play in the joints of the prior paragraph’s description because I’m having trouble getting agitated over this issue and I haven’t followed it closely. But since my day job is as a lawyer, and my profession generally has been condemning the Cheney/Rove side shrilly, I want to register a dissent.

First, you can tell something about a lawyer’s loyalties by seeing what cases they take on pro bono.

The italicized “pro bono” is key. Lawyers indeed (as the profession and the left have lept up to shout) have an obligation to represent unpopular people. Maybe they even have an obligation to represent unpopular causes, which isn’t quite the same thing. Those obligations, however, are limited by the lawyer’s internal compass (e.g., “can I really represent this person or cause effectively when I find them so odious?”) and there’s no obligation to take on all comers pro bono.

As someone noted a few decades ago, “there’s ‘unpopular causes’ and then there’s unpopular ‘unpopular causes.'” “Unpopular causes” can be a term of art for the left’s favorite projects. You’ll not, for instance, find the left praising me for the handful of “issue” cases I’ve handled pro bono. No, those causes are unpopular unpopular causes among those who buy their ink by the barrel.

Second, and arising from the first, self-congratulation for taking on a merely “unpopular cause,” not an unpopular unpopular cause, is idiotic.

That’s muh story and Ah’m stickin’ to it.

We now return to more nomal fare.