Some Things Can't be Copyrighted

Publishers' Weekly:

A judge in the Southern District of New York ruled that Tracy Wolff did not plagiarize her YA fantasy series Crave, according to a report that first appeared in Publishers Lunch.

The ruling concludes a multi-year lawsuit brought against Wolff by writer Lynne Freeman, alleging the series was "substantially similar" to one of her unpublished manuscripts. Freeman also named her and Wolff's mutual agent Emily Sylvan Kim, Crave publisher Entangled Books, distributor Macmillan, and Universal City Studios—which bought film rights to the first installment in the series—in the suit.

In the ruling, Judge Colleen McMahon wrote that "Freeman’s novel and Wolff’s Crave novels are indeed similar, but only in the ways that all young adult romantasy fiction novels are similar to each other."

The court added that "hot, sexy, dangerous boys—central to virtually all young adult romance novels—cannot be copyrighted."

Is This Good News or Bad News?

Chicago reporter Dan Mihalopoulos on Twitter/X:

We’ve covered lots of losing teams on the back page of the paper. But none with a record as bad as the Chicago DOJ during Operation Midway Blitz:

• 0 conviction
• 11 charges dropped
• 3 no-billed cases
• 1 jury acquittal

And James Queally of the LA Times:

The U.S. Attorney’s Office in L.A. has lost every case it brought to trial against a protester who allegedly attacked a federal LEO last year. A number of other cases were dismissed or rejected by grand juries.

If you want you can find whole collections of videos on TikTok or YouTube Shorts of judges angrily dismissing charges brought by various Trump lackeys.

As these people note, Federal prosecutors usually win most of the cases they bring, and legal insiders like to repeat the old joke that a good prosecutor can get a grand jury to indict a ham sandwich. So this is a remarkably bad record.

Plus, Trump has threatened all sorts of political figures with investigation for their parts in opposing January 6 or other Trump "initiatives," but none of them have been convicted of anything. So far as I am aware, none of the lawsuits he has threatened against news organizations has ever led to a trial and a loss for his opponents, although lots of people have settled out of court.

What are we to make of this? Should we be reassured that Trump's people are so incompetent? Pleased that their clumsy crackdown is generating so much opposition?

If you really wanted to weaponize the law, would you make Pam Bondi the AG and put a complete idiot in charge of the FBI?

Is the point just harassment, intimidating people into silence by the threat of a few days in jail?

Or is it to wear Americans down until we no long react at all when Federal officers commit outrages? To make this into the new normal?

Is it just a reflexive burst of rage against immigrants and people who support them?

It feels like an extremely clumsy move to me, bad enough to generate widespread outrage but not so bad as to really intimidate the country.

Am I missing something? What, really, is this all about?

Law-Abiding Immigrants

Abstract of a new paper:

We provide the first nationally representative long-run series (1870–2020) of incarceration rates for immigrants and the US-born. As a group, immigrants have had lower incarceration rates than the US-born for 150 years. Moreover, relative to the US-born, immigrants' incarceration rates have declined since 1960: immigrants today are 60 percent less likely to be incarcerated (30 percent relative to US-born Whites). This relative decline occurred among immigrants from all regions and cannot be explained by changes in observable characteristics or immigration policy. Instead, the decline is part of a broader divergence of outcomes between less-educated immigrants and their US-born counterparts.

Just one study, but all the data I have seen confirms this. 

Does Involuntary Hospitalization Help the Mentally Ill?

As concern about violence committed by the mentally ill has grown, so has the number of Americans who are involuntairly committed for mental care. Does that help? Abstract of a new paper:

The involuntary hospitalization of people experiencing a mental health crisis is a widespread practice, as common in the US as incarceration in state and federal prisons and 2.4 times as common as death from cancer. The intent of involuntary hospitalization is to prevent individuals from harming themselves or others through incapacitation, stabilization and medical treatment over a short period of time. Does involuntary hospitalization achieve its goals? We leverage quasi-random assignment of the evaluating physician and administrative data from Allegheny County, Pennsylvania to estimate the causal effects of involuntary hospitalization on harm to self (proxied by death by suicide or overdose) and harm to others (proxied by violent crime charges). For individuals whom some physicians would hospitalize but others would not, we find that hospitalization nearly doubles the probability of being charged with a violent crime and more than doubles the probability of dying by suicide or overdose in the three months after evaluation. We provide evidence of housing and earnings disruptions as potential mechanisms. Our results suggest that on the margin, the system we study is not achieving the intended effects of the policy.

I know nothing about the authors, and obviously this is a topic that many people approach with strong prior views. But I think a lot of data shows that stabilizing mentally ill people and then releasing them is often unhelpful. Here's a good line:

Resource constraints, such as under-resourced and porous follow-up services, can make for detrimental experiences.

Many of these folks are leading rough lives; in this study, 60% of those being tracked used an emergency room at some point in the following year. These mentally ill, often homeless people make up about 1.5% of those covered by Medicaid but use 25% of the budget. This is why programs that just give people housing often save money; if we are spending $50,000 a year on someone's health care, then getting them off the streets can be a money-saving strategy. But, of course, those programs work best when they focus on people most likely to benefit, that is, the least messed-up. For the far gone, there isn't much we can do, and after repeated overdoses, head injuries, frostbite, and so on they will mostly likely be dead in a few years.

Social Media, Big Tobacco, Freedom, and Happiness

The latest wave of attacks on social media have come in the form of comparing it to tobacco addiction and recommending the same remedy: making it much more expensive.

This is Utah governor Spencer Cox, speaking to Ezra Klein:

The social graphs that they use, which know us better than we know ourselves, that allow us, as you so eloquently stated and better than I could, to understand what makes us emotional and what keeps our eyeballs on there — so that when a kid is somehow, even if they don’t want to be, on TikTok at 3 a.m., just going from video to video, and they’ve given up their free will — that is unbelievably dangerous.

When tobacco companies addicted us, we figured out a way out of that. When opioid companies did that to us — we’re figuring our way out of that. And I’m just here to say that I believe these tech companies, with trillion-dollar market caps combined, are doing the same thing — the same thing that tobacco companies did, the same thing that the opioid companies did. And I think we have a moral responsibility to stand up, to hold them accountable and to take back our free will.

Klein himself has been saying that the next really popular presidential candidate may be somebody who takes on the social media companies:

And I think that, at some point, you are going to see a candidate come up who is going to weaponize this feeling. They are going to run not against Facebook or Meta as a big company that needs to be broken up. They’re going to run against all of it — that society and modernity and politics shouldn’t feel like this.

And some of that will be banning phones in schools. It’ll have a dimension that is policy. But some of it is going to be absolutely radiating a disgust for what it is doing to us and to ourselves. I mean, your book has a lot of this in it. I think that political space is weirdly open, but it seems very clear to me somebody is going to grab it.

Massachusetts Congressman Jake Auchincloss has been talking about introducing some kind of social media "sin tax."

I am of two minds about this.

I do agree that in some sense social media is a problem; at a minimum, it consumes a ton of our attention while not making us any happier or better off in any other way I can think of. But on the other hand, people now have many options for amusing or informing themselves, and social media is what millions of us choose. Isn't that what freedom means?

To me, this isn't just about social media. What if it is true that, given real freedom, many or even most people will make lousy choices? Where does that leave us?

Could it be that we are unhappy and frustrated, despite our great wealth and freedom, because we spend our time and money on things that make us worse off?

If so, what can we do about it?

Consider marriage. A good marriage always shows up in surveys as providing a huge boost for happiness, more than all the money in the world. But marriage rates are now falling, and the reason most sociologists give is that we just don't feel like we have to do it any more. Are we paying a tax in happiness for exercising that freedom? On the other hand, lots of people entered or stayed in bad marriages because they felt they had to, and that is miserable. Where is the balance point between the freedom that allows us to escape abusive relationships and the freedom that leaves us adrift and alone?

Sometimes, looking around America, I imagine a vast movement back toward restrictive social norms, backed up with strong social sanctions. But then I think about what Americans are like, and I feel certain that we would fight like hell against any really powerful neo-Victorianism. So I think we are basically stuck with our freedom, and the costs we pay for it.

Mental Illness and Crime, Afghan Immigrant Edition

Trump of course wants the shooting of two National Guardsmen by an Afghan immigrant to be about immigration, but all the signs are that it is another sad story about failing mental health. The NY Times:

The emailed plea was urgent and direct: “Rahmanullah needs help.”

The warning came nearly two years before Rahmanullah Lakanwal would be named as a suspect in the gunning down of two National Guard troops near the White House on the eve of Thanksgiving. It was enshrined in writing by a volunteer helping to give Mr. Lakanwal a fresh start in America who had become convinced he was unraveling. . . .

In the months after, he sequestered himself inside his darkened bedroom, refused to answer his phone, and even failed to bathe or dress his sons when his wife left to take short breaks from him. He dropped out of the English classes he was supposed to take, did not seek work and stopped paying rent. His family received an eviction notice.

“Rahmanullah has not been functional as a person, father and provider since March of last year,” the volunteer wrote in a January 2024 email.

The one way I know of that immigrants create more trouble than the native born is that they have a higher rate of serious mental illness. Nobody really knows why; it could be the shock of moving to such a different place, or it could be that the boldness needed to migrate has some connection to mental troubles. Plus, many mental health organizations have reported a big increase in mental problems among immigrants since Trump began his crackdown; to Trump that is probably a feature, not a bug, but it leaves the rest of us struggling with the fallout.

America is simply not capable of helping or monitoring all the crazy people in our midst who might end up posing a threat. I don't see any solution that wouldn't involve spending a lot of money, and I very much doubt that such money could be found in the current political climate.

FIRE on New Laws to Protect Free Speech

Conor Friedersdorf asked FIRE (The Foundation for Individual Rights and Expression) what laws they would like Congress to pass to protect free speech in the US. They said:

1. Eliminate the FCC and stop regulating television altogether.
2. Crack down on "jawboning" – when the president or other senior figures call up TV networks and complain about coverage – by requiring that all such communications be disclosed.
3. Allow people who sue the government for infringing their free speech to collect damages.
4. Anti-SLAPP laws to limit frivolous lawsuits; many states have these but not all, and the Feds do not.
5. The Respecting the First Amendment on Campus Act, already introduced into Congress, which would ban “free-speech zones, which imply that expression is restricted elsewhere on campus,” and prohibit onerous security fees that colleges sometimes impose on organizers of events with controversial speakers, and require that any limits follow what the Supreme Court said in Davis v. Monroe County Board of Education, that speech rises to a Title VI violation only if it is “so severe, pervasive, and objectively offensive” and “so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

What the First Amendment Says

Magnificent ruling from Judge W.G. Young, U.S. District Court, Massachusetts. It begins with a note that was delivered to the judge:

And continues:

Proposed by Congress in 1789, and ratified in 1791, the First Amendment to the Constitution of the United States — its words carved in New Hampshire granite on the exterior of the very courthouse in which this Court sits — provides: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

U.S. Const. amend. I.

On January 20, 2025, the first day of President Donald Trump’s second term in office, he promulgated 26 Executive Orders. Executive Order 14149, entitled “Restoring Freedom of Speech and Ending Federal Censorship”, ostensibly issued to reverse conduct of his predecessor, barred federal officials from “any conduct that would unconstitutionally abridge the free speech of any American citizen.” Id. at § 2(b). President Trump here makes clear that, in his view, the First Amendment’s protection of freedom of speech applies to American citizens alone, and to an unconstitutionally narrow view of citizenship at that.

This case — perhaps the most important ever to fall within the jurisdiction of this district court — squarely presents the issue whether non-citizens lawfully present here in United States actually have the same free speech rights as the rest of us. The Court answers this Constitutional question unequivocally “yes, they do.” “No law” means “no law.” The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence. See Section III.A infra. No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.

Amen.

36 Years Later

Back in 1989, Marina Ramos was stabbed to death in California. Four days later, two infants, aged 2 months and 14 months, were found in a public bathroom. Nobody made the connection at the time. The children were eventually adopted and raised in what police call a "loving home."

The question of who killed Ramos and what happened to her children remained open, though, and recently police in Arizona (not sure why) decided to investigate the case using DNA. They eventually made a DNA match and identified the two women found in that bathroom as the missing daughters of Marina Ramos.

OK, impressive police work, but let me ask this: what impact will this have on the daughters? None of the news stories I have seen identify the daughters, which is proper, but that means we can't ask if knowing their mother was brutally murdered will make their lives better or worse.

They police say they hope this will help them find the mother's killer, but I can't see how.

Is this a case of "the truth has to be told"? Or is it just cruel poking at two women whose lives have already been messed up enough?

I have grave doubts that every old secret should be exposed, and I do not think we have thought nearly hard enough about what can be done with DNA studies that the people most directly involved have not consented to.

Historians and the Courts

Interesting piece by Adam Liptak (NY Times) noting that as the Supreme Court has gotten more involved in "originalism," academic historians have been submitting more and more briefs to the court.

I find this intriguing. If you care about the original intent of the constitution, you really should throw yourself into the intellectual and political history of both the Revolutionary period and the end of the Civil War, when the vital 13th and 14th amendments were enacted. I have long thought that the approach to this question taken by e.g. the Federalist Society was rather shallow; their idea of "originalism" seems to me to focus too much on reining in certain liberal interpretations of the 1960s and 1970s, not actually understanding the past. To actually understand the past you have to do history.

A couple of thoughts:

Anyone who has paid the slightest attention to the constitutional convention would have to immediately dismiss Trump's claim to be able to impose tariffs on his own authority. One of the major ideas of the whole revolutionary period was that kings should not be able to impose taxes without popular consent, so the framers very carefully and specifically limited this power to the House of Representatives. And since at that time tariffs were the Federal government's main source of revenue, and since grievances over tariffs had played a part in the Revolution, yes, they absolutely thought tariffs were taxes.

I think they would also be baffled by contemporary interpretations of the Second Amendment. They meant what they said about a "well-regulated militia," and understood the difference between such an organization and a mob like the Paxton Boys. No court over the whole nineteenth century ever struck down any of the many local gun control ordinances in America on Second Amendment grounds.

On the other hand, I cannot imagine any American of the nineteenth century thinking that the constitution protected a right to abortion. This is part of why I was always personally queasy about Roe v. Wade; you're telling me that ths Constution protects a practice that all the men who wrote it and voted for it found abhorent?

But that gets be to a broader question; is a document written in the 1780s really the best guide for politics in the 21st century? This is a question that much preoccupied the great pragmatist judges of early 20th century, men like Oliver Wendell Holmes and Learned Hand. The cases that came before them often turned on matters that the constitution's authors had never even imagined, like industrial trusts and anarchist cells. It was no good, Hand wrote, looking to the framers for advice on how to handle such questions. They must be answered by people who know something about them, that is, us.

And yet, would casting aside the Constitution help us? I think not. In fact at the moment I find myself wishing for a lot more fidelity to the Constution, along with a Supreme Court that would do its constitutional job.

So we are left trying to find our way through these thickets as best we can, relying on our political heritage because we must, but reaching beyond it because sometimes we must also do that.

Supreme Court Decision on NEPA

The decision was effectively unaminous, because nobody could read the law and think the process as it now exists is what Congress had in mind. Sotomayor wrote a concurrence, which has more pro-environment rhetoric but so far as I can tell is substantively the same. This, from Bret Kavanaugh's decision, sums it up:

Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.

The lawsuit concerned the construction of an 88-mile railway in Utah to carry waxy crude oil to existing rail lines. Environmental groups sued because they said the NEPA review should have considered, not just the direct impact of building the railroad, but the overall impact of refining and using the oil from this source. This outward spiraling of "impacts" is one of the things that make NEPA so crazy; how could you, even in theory, estimate all the potential future impacts of how piece of infrastructure will be used? Consider that the Environmental Impact Statement in question was 3,600 pages long, and a court still held that it was not far-reaching enough.

This is what NEPA requires of federal agencies before they approve projects:

• Consider alternatives, including the "no action alternative."
• Get an appropriate level of information on how the project would impact a range of stuff, like endangered species, cultural resources, wetlands, and air pollution.
• Have roughly the same level of information on all the alternatives being considered. (You can't delve much more deeply into the impact of the alternative you think you're going to choose.)
• Make their decision in the light of this information.

That's it. It in no way requires that the agency prioritize environmental protection over other concerns, nor does it have any detail about what that appropriate level of information might be. That is left to the agency. There are cases where a responsible decision-maker would want a whole lot of information; for example, the Corps of Engineers did a bookshelf of studies before embarking on their multi-billion-dollar plan to alter water flows in South Florida to protect the Everglades. But for many cases the process has gotten completely out of hand, with stacks of fat reports piling up for the construction of single buildings, or adding turn lanes at intersections. None of that is in NEPA, and none of it was done in the first 15 years of the law's existence.

The meat of the Supreme Court's decision is that the lower courts who tried to interfere in this case did not grant "sufficient deference" to agency decision-makers:

Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.

I think this is the key. Letting NEPA become completely unreasonable, which I think has happened in many cases, is bad for the country and will, if not checked, eventually lead to the dismantling of the whole process. Preservationists of all sorts need to think harder about what realistically can be preserved, and how big a burden they should be imposing on their fellow citizens.

A Tale of Two Treasures

Two successive posts on The History Blog point out the importance of antiquities law.

First, Ritually bent sword from Bronze Age/Iron Age transition found in Denmark. The sword is above.

Ritual deposits including a ritually bent sword have been discovered in a bog near Veksø northwest of Copenhagen, Denmark. The small cache of objects date to the transition from the Late Bronze Age to the Early Iron Age, around 500 B.C., and the sword actually incarnates the transition, being made of bronze with iron rivets.

They were discovered by Claus Falsby on his first outing with a metal detector. He contacted museum organization ROMU which manages archaeological responsibilities for central and western Zealand. ROMU archaeologists immediately went to the site and excavated it, discovering additional objects. In total, the cache now consisted of the bronze sword with iron rivets in the handle sinuously bent into a s-curve, two small bronze axes (known as celts), two or three large ankle bangles called vulrings, a fragment of a large fibula and an object of unknown purpose.

Close-up of the black showing the herringbone pattern created in the forging process; the folding was done to get the right mix of iron and carbon in the steel.

Second, Nationally important Bronze Age hoard recovered from looters:

A late Bronze Age (ca. 950–780/740 B.C.) hoard of national importance found near Gryfino in Poland’s West Pomeranian Voivodeship has been rescued by authorities after it was illegally excavated. Anonymous individuals sent pictures of the objects to each other before they were emailed to the Provincial Conservator of Monuments in Szczecin who then called the police.  . . .

The hoard contains more than 100 objects, 73 of them remarkably large. It includes more than 30 bronze neck rings, weapons, shield bosses, jewelry, phalerae (metal discs) from horse harnesses, silver spikes, the handle of a vessel, sickles and spearheads. Three of the objects are of national importance, unique on the archaeological record of Poland: a brooch made of circular hoops with decorated sheet-metal domes, a long pin and the axe which were not locally made and came to Gryfino from southcentral Europe, probably the Alpine region. The axe socket contains remnants of wood from the haft, which will give archaeologists the opportunity to radiocarbon date the axe head and determine what kind of wood it was mounted to.

The finder or finders used a metal detector but Polish law regulates their use to prevent exactly this kind of shenanigan, and the looters obviously did not have the necessary permits to conduct a metal detector search. That in itself is an indictable offense, but to add insult to injury, it’s clear from the photographs that they destroyed at least one clay container in which the treasure had been buried 3,000 or so years ago and ran roughshod over the archaeological context, acts punishably by a term of up to eight years in prison.

What is the difference between the collegial enterprise described for Denmark and the illegal "shenanigans" in Poland? National law.

In Denmark, Britain and Norway (at least) the authorities work with metal detectorists and property owners and reward them for bringing their finds to the government's attention. In Italy, and, it seems from this article, Poland, the authorities ban amateur archaeology and prosecute the people who do it. As a result, the things they find simply disappear, unless they are foolish enough to brag on Facebook about it.

Free Speech and Riots in Britain

The prosecution of people who made inflamatory posts during Britain's recent anti-immigrant riots has led to a lot of anger and angst over speech. Some people – notably Elon Musk, but he is far from alone – have accused the British government of setting up an oppressive police state for things like this:

Some people have also objected to a 15-month prison term for Julie Sweeney, 53, of Cheshire. After seeing a photo on Facebook of people helping repair a mosque that was attacked during a riot in Southport, Ms. Sweeney posted: “Don’t protect the mosques. Blow the mosque up with the adults in it.” She pleaded guilty to a charge of sending a communication threatening death or serious harm. Her lawyer argued for leniency, saying she was her husband’s primary caregiver. But the judge, Steven Everett, said, “Even people like you need to go to prison.”

As I see it, many people treat the internet as a sort of fantasy world where they can say anything because there are no consequences. They want Twitter/X to be just like sitting with their mates in the pub, with freedom to say whatever pops into their heads. And, indeed, the internet is where many, many people have most of their conversations.

On the other side, government spokesmen say things like:

I don’t see why the internet should be regarded as any different than when someone stands on a soap box and addresses a raging crowd.

That is, a place and situation where words matter a lot.

The liberal establishment has a deep fear that bad things are happening on the internet, that dangerous ideas are circulating and getting into the heads of impressionable young men, and that this will somehow lead to a civil war or right-wing takeover. My sons, who spent a lot of time in online swamps as teenagers, are frankly baffled by this attitude. They think the whole business is a grand joke, just kids experimenting with their freedom to say shocking things. The notion that anyone would take it seriously is just weird to them, like thinking that Dungeons and Dragons is training kids to become sword-wielding assassins.

And then the riots broke out in Britain, fueled by false rumors that a knife-wileding killer was a Muslim asylum seeker, riots in which people were hurt and property destroyed. On the one hand it was a farce, a bunch of grouches larping at revolution, easily crushed by the government. On the other hand, a hotel full of asylum seekers was surrounded by an angry mob that threatened to burn them alive and beat up the cops who tried to stop them, and that doesn't strike me as something we ought to tolerate.

But I have to say that new PM Keith Starmer's comments make me nervous:

“We’re going to have to look more broadly at social media after this disorder.” He also applauded the courts for sentencing people for their online behavior, not just for taking part in the riots. “That’s a reminder to everyone that whether you’re directly involved or whether you’re remotely involved, you’re culpable, and you will be put before the courts if you’ve broken the law.”

What does "remotely involved" mean? You can just glance at Russia or China to see how far certain governments have stretched the definition of "remotely involved" in lawbreaking.

The case that has drawn the most attention is that of the woman accused of starting the furor, Bernadette Spofforth, 55, described by the NY Times as "an online influencer and mother of three." She was arrested and released on bail but has not been charged. The Times:

Disinformation researchers say she appears to have been the first to falsely claim on X that the attacker was a Muslim asylum seeker, in a post suggesting that his name was Ali-Al-Shakati. By the time she deleted the post later that day, it had been viewed almost 1.5 million times and reposted by prominent conspiracy theorists. Ms. Spofforth, who has previously spread misinformation about Covid-19 and climate change, told The Sun, a London newspaper, that she had copied and pasted the post, and “fell into the trap of sharing misinformation.”

Love that little gloss about Covid-19, because so far as I can tell spreading false information about the pandemic is a charge that could be leveled against almost everyone on the planet, starting with the CDC and all the people who said we had to close the schools.

I'm not posting about this because I think I know the answer. In a situation like the British riots, the line between free speech and incitement to riot is both hard to draw and important. But I want to put myself down as being very suspicious of any plan to arrest people for "remote involvement" in violent acts they had nothing to do with planning or committing.

Killing Owls to Save Owls

The northern spotted owl shot to fame as a powerful weapon in the long-running fight over old growth forests in the northwest; millions of acres of forest were eventually set aside to insure its survival. But now the owls are declining again, and not because of anything people are doing:

Barred owls, which are considered native to the eastern United States, are increasingly appearing in the Pacific Northwest’s old-growth forests where the threatened northern spotted owls breed and live. Where the two birds overlap, the barred owls tend to outcompete the northern spotted owls, taking the best nest sites and harassing, killing or occasionally mating with spotted owls.

To protect spotted owls from this new menace, the US government has just authorized states and individuals to kill all the barred owls they can find, potentially hundreds of thousands. I agree with these three philosophers (NY Times) that this is a terrible idea. It is not likely to succeed, but ever if it were, it would still be a terrible idea.

Many philosophers, conservation biologists and ecologists are skeptical of the idea that we should restore current environments to so-called historical base lines, as this plan tries to do. In North America, the preferred base line for conservation is usually just before the arrival of Europeans. (In Western forests, this is often pegged to 1850, when significant logging began.) But life has existed on Earth for 3.7 billion years. Any point we choose as the “correct” base line will either be arbitrary or in need of a strong defense.

Restoring or preserving those historical base lines is only going to get more difficult. In some cases, it will be impossible — and this might be one of them. It is unclear that killing barred owls will do anything but merely slow the northern spotted owl’s eventual extinction. When barred owls were previously removed in a before-and-after experiment in areas of Oregon and Washington, the number of northern spotted owls still declined. The removal slowed that decline, but even with the planned killings, the barred owl is here in the West to stay.

We should strive to care for ecosystems given their current ecological realities. Ecosystems are dynamic and have always changed over time as organisms move around. And now, humans are inescapable drivers of ecological changes. Climate change and wildfire have accelerated the dynamism of ecosystems. Killing barred owls will not restore the forests to the way they were in 1850.

Looking Back at the Streaming Revolution

At the NY Times, musician Elizabeth Nelson reviews a documentary, co-produced by Eminem, that hails the original online music pirates as the heroes of a wonderful revolution. Nelson is unconvinced, and offers these two possible takes:

The story they want to tell, in an emphatically triumphalist tone, is that the early pirates were David and the music industry was Goliath. But then the industry realized that David was actually pretty cool: All turned out well, and music was solved forever.

I may be speaking as a working musician here, but from my perspective — the perspective, I think, of almost any nonmogul with a stake in the industry — this is an obviously insane interpretation of events. The problem isn’t just the ever-decreasing viability of even established, popular artists keeping food on the table. There is also a cultural poverty that attends the streaming economy. There is the ruthless profit maximization and the constant steering of listeners toward the same music. There is the lock-step social engineering and manufactured consensus. There is the escalating — and demeaning — sense of music being treated as a utility that need not be meaningfully engaged with. There are the Spotify playlists peppered with songs generated by fake artists that Spotify owns the rights to, allowing the company to recapture its own royalty payments. And at the same time, there is the fact that nearly every space where consumers could once interact with music unsupervised by corporate gatekeepers — record stores, mail order, merch tables — has been put on life support.

I have long considered online music piracy to be the just comeuppance of an industry that refused either to sell the public what they wanted or price what they were selling anywhere near what people wanted to pay. Back in 1990, if you heard a song on the radio by an artist who intrigued you, the only thing you could do was to go out and pay $18 for a cd that, as often as not, had only one good song, the one you had already heard. I did this at least ten times, and I resented it. I remember reading critics at the time who said that people were begging for singles, not albums, but the industry mostly refused to sell them and when they did they charged $5-7. I understood that downloading was theft, but, again, I had zero sympathy for anyone in the music industry.

I think the amount of money non-famous artists used to make from album sales is often exaggerated these days. Other than the biggest stars, only cranky hermits could really earn a living just off sales. Touring was always how musicians made it, and it still is. Live music is bigger than ever before. Many musicians regard their appearances on Spotify more as free ads for their live shows than as a meaningful revenue stream.

As for corporate sameness, well, that is pretty much the top lament of our cultural era. My experience, however, has been completely different. Thanks to YouTube I have discovered more new music over the past five years than any comparable period of my life. Viz., all the Nordic Ambient music I have discovered, artists like Waldruna and Sigur Ros. How would I have discovered this music in 1990? How would I have stumbled onto Eivor, singing in Faroese? I can't imagine. As I recall, the way it worked was that you had to have a friend who was a music obsessive who spent 20 percent of his income on obscure albums he ordered from catalogs. Absent such a friend who happened to be plugged in, you were out of luck. (Whatever Elizabeth Nelson thinks, a record store was absolutely not a space where you could interact with music without corporate gatekeepers.)

It is true that the algorithms of YouTube and Spotify are mostly useless, to a degree that baffles me; given all the money there to be made by a service that really made good recommendations, why can't anyone make it work? But only a small amount of reading and exploration is enough to find some names of artists and bands who sound interesting, and rather than having to plunk down $18 to find out what they sound like you can just pop online and listen.

From my perspective, this is the greatest era ever to be a lover of music.

Tim Wu Wants to Regulate Social Media

At the NY Times, Tim Wu protests the Supreme Court's view that the editorial choices of social media platforms represent "free speech":

Over the past decade or two, however, liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called “speech,” regardless of its value or whether the speaker is a human or a corporation. It has come to protect corporate donations to political campaigns (Citizens United v. Federal Election Commission in 2010), the buying and tracking of data (Sorrell v. IMS Health in 2011), even outright lies (United States v. Alvarez in 2012). As a result, it has become harder for the government to protect its citizens. . . .

In the name of protecting free speech, courts have also made it difficult for lawmakers to protect people’s privacy and repeatedly struck down efforts to protect children. For example, Vermont passed a law to prevent pharmacies from selling prescriber data in 2007, but the Supreme Court struck it down in 2011, presuming that the sale of data is a form of speech. And last summer, after California passed a law to prevent social media companies from tracking and extracting data from children, a federal court blocked it, arguing, in effect, that the surveillance of children is also a form of speech protected by the First Amendment.

The next phase in this struggle will presumably concern the regulation of artificial intelligence. I fear that the First Amendment will be extended to protect machine speech — at considerable human cost.

In our era, the power of private actors has grown to rival that of nation-states. Most powerful are the Big Tech platforms, which in their cocoon-like encompassing of humanity have grown to control commerce and speech in ways that would make totalitarian states jealous. In a democracy, the people ought to have the right to react to and control such private power, as long as it does not trample on the rights of individuals. But thanks to the Supreme Court, the First Amendment has become a barrier to the government’s ability to do that. Free speech rights have been hijacked to suppress the sovereignty of humans in favor of the power of companies and machines.

I think this is a strong argument in theory, but in practice I wonder about trusting state legislators to make these choices for us. As even Wu admits, the Texas and Florida laws in question in this case are pretty bad and might force platforms to promote the feeds of people who threaten to sue them.

The Philosophers' Stolen Castle

Matt Levine explains:

I have always kind of thought that a clever form of effective altruism would be “we build a giant casino for crypto gambling, we skim a percentage of the handle, and we use it to buy mosquito nets to save poor people from malaria.” I once suggested to Sam Bankman-Fried that this might be what he was up to at FTX, his crypto exchange. Just moving money from low-valued uses to high-valued ones, very neat and utilitarian.

A less clever — but faster? — form of effective altruism would be “we build a giant casino for crypto gambling, then we steal all the money and use it to buy mosquito nets.” Arguably that is closer to what Bankman-Fried was actually up to, though that’s not quite right either. FTX actually recovered most of the client money, but also it does not seem to have notably devoted a ton of customer money to effective charitable works on behalf of the world’s poorest.

“We build a giant casino for crypto gambling, steal the money and use it to buy a castle for effective altruist philosophers” is even weirder? Like that’s a good assignment for a philosophy class? “Explain, using utilitarianism, how this is Good.”

Because one of the things that was done with Sam Bankman-Fried's donations to the Effective Ventures Foundation was to buy Wytham Abbey (photo at top) in England for around $18 million. The plan, apparently, was to use the manor house as a retreat where the thinkers of effective altruism would meet with their billionaire funders and come up with ways to make the world better. Unfortunately for that dream, after FTX went bankrupt Effective Ventures decided to return the money Bankman-Friend gave them, and to do that they had to put the house back on the market.

Levine's blog isn't set up so you can link to individual posts, but this is part of his post dated May 9.

Modern Constitutional Law

Interesting article in the NY Times about teaching constitutional law in an era when the Supreme Court is ever more willing to reject precedent. One law professor says,

One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means. And the degree of difficulty of that proposition has never been higher.

Another:

While I was working on my syllabus for this course, I literally burst into tears. I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.

This being a NY Times article, the onus is all loaded onto the current conservative court, but I think that is unfair. I strongly support abortion and gay marriage, but I can't find either one in the Constitution.  If I wanted to put a non-political interpretation on all of this, I would say that as the Constitution gets older and older it is less and less able to provide guidance on our issues.

And I suspect that is true. Honestly, though, I find the notion that there was ever anything apolitical about interpreting the Constution ridiculous. The Constitution says nothing about race, but somehow past generations of justices found a lot of race in it. The Court upheld the internment of Japanese Americans and flip-flopped in a big way on Federal regulation of business activity. I can't see any past golden age of justice in America, or of respect for the Supreme Court.

So if there was really some kind of consensus judicial philosophy in the Cold War era, the consensus was simply that pushing political agendas too hard would be bad politics. That no longer seems to be true; now most Americans are perfectly happy to see the Court ram their political preferences down their opponents' throats, so that is what the justices are doing.

And while law professors are torn about all of this, law students are not:

I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand and he asks, ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.

Others I spoke to agreed with this assessment. “We’re witnessing a transformation in the New Deal consensus. . . . Our students are increasingly rejecting it, progressives and conservatives. They are less judicial supremacists. They are more willing to question courts.” He added, “We have to figure out what the new world is going to look like. I don’t know.”

This is the challenge we face as a nation: holding it all together as the arguments get ever angrier and less constrained.

Bukele's El Salvador

Interesting piece by Geoff Shullenberger about the reign of El Salvador's Nayib Bukele, most famous for suspending the constitution to jail all the country's gang members. Bukele is descended from Christian Palestinians and came into politics through the left-wing FMLN party. He was expelled from the FMLN in 2017 and founded his own party, New Ideas. He ran for president in 2019 and won; most observers thought his victory was due to the nation's exhaustion with the older parties of the left and right, which had alternated in power since the end of the Civil War and seemed incapable of improving the economy or controlling the violence that made El Salvador the murder capital of the world.

Under Bukele violence went down some and the economy was pretty good; people say, although this has never been proved, that he reduced crime by cutting some kind of deal with El Salvador's powerful gangs. Then in March, 2022, Bukele announced a state of emergency and his government launched a nationwide program of mass arrests, jailing 70,000 to 75,000 people they accused of being involved with the gangs. Human rights groups screamed, and even Bukele's supporters admit that thousands of innocent people were jailed, but violent crime fell by 50%, dozens of neighborhoods were freed from gang rule, and Bukele instantly became the most beloved leader in the world. He ran for an unconstitutional second term this year, and on February 4 won 80% of the vote in an election most observers think was pretty fair.

Shullenberger is ambivalent about this, as I think most outsiders are. I mean, violent crime isn't much of a problem in North Korea, either. But Bukele is not just a thug, and he cannot really be classified as a conservative. Among other things, Bukele spends a lot of time denouncing outside interference in El Salvador, and blaming its problems on the Americans:

He summarized the last four or five decades as an unbroken string of violations of Salvadoran sovereignty, mainly by the United States. First came the civil war, an “international war” that made El Salvador “one battlefield more” between foreign powers; then, the 1992 peace accords—“another of the tricks we’ve been subjected to in our history,” which “brought no peace,” only new forms of violence; then, the deportation of gang members from the United States, prompting new generations to flee. The same story, again and again: a population subjected to unending brutality by external forces, all due to a lack of sovereignty and self-determination. “From now on, we will build our own destiny,” Bukele declared.

Bukele sometimes talks like a socialist, arguing that

the power exerted by gangs amounted to an acutely oppressive form of neoliberal privatization of public space, in which those who couldn’t afford walled compounds and private guards found their lives dictated by the whims of organized crime.

Shullenberger:

I asked the Honduran-Salvadoran novelist Horacio Castellanos Moya, known for his paranoid, darkly hilarious novels about the region, what he made of the young president’s rise. He replied with a simple point that is often overlooked: “Bukele’s popularity is not the product of having defeated the gangs.” That happened in 2022, well after he had crushed the opposition, first in the 2019 presidential elections and then in the 2021 legislative elections, and consolidated the institutions of state power in support of his agenda. In this sense, it was his popularity that enabled the defeat of the gangs, not the other way around. It is hard to imagine the apparent lockstep loyalty of state institutions would be what it is today without the public support behind the president’s projects, and without many within them being believers in the project they are undertaking.

In Castellanos Moya’s account, Salvadorans coalesced around Bukele because they were “hypnotized by the promise of the new” the young leader embodied. In other words, it was the imaginative capture of the public by Bukele’s charismatic appeals that enabled the institutional capture. It is an argument one would expect from a novelist: Power over the imagination precedes political power and makes it possible. But I found this conclusion hard to dispute. . . 

“Terror is the given of the place,” Didion wrote of El Salvador in 1982. Castellanos Moya told me something similar: “The form of social domination in El Salvador throughout time has been terror: The army, the security forces, the guerrillas and the gangs have been the instruments of that form of domination.” Today, terror no longer haunts the streets of central San Salvador, but it hasn’t been eliminated altogether, merely relocated and concentrated, as the glossy videos of the Terrorism Confinement Center (capacity: 40,000) make clear.

To Shullenberger, the case of Bukele is among other things a parable about how populist third parties come to power, and what people want from government: freedom from violence, and a positive vision for the future. Shullenberger says Bukele's only weakness seems to be the economy, which is ok but nothing like the modernizing transformation he has promised. But if growth does take off, Bukele could easily keep winning unconstitutional elections for decades.

Sexual Assault on Campus, the Ongoing Saga

At Yale, the latest blow-up in the ongoing war over sexual assault on campus and what universities can do about it. NY Times:

In a 2018 disciplinary hearing at Yale University, Saifullah Khan listened as a woman accused him of raping her after a Halloween party.

The woman, who had graduated, gave a statement by teleconference to a university panel, but Mr. Khan and his lawyer were not allowed in the room with the panel. Nor could his lawyer, under the rules of the hearing, cross-examine her.

Instead, they were cloistered in a separate room, as her testimony piped in by speakerphone. He felt, he said, “there is absolutely nothing I can do to change my situation.” As he feared, Yale expelled him.

Mr. Khan’s criminal trial, months earlier, was markedly different. His lawyer cross-examined the woman in ways that horrified women’s rights advocates: How were you dressed? How much did you drink? Did you send flirty texts? And unlike the Yale hearing, the prosecutors had to prove his guilt “beyond a reasonable doubt.”

The difference between those two hearings — in process and outcome — led Mr. Khan to make an unusual move: He sued his accuser for defamation for statements she had made during the Yale hearing. That lawsuit, filed in 2019, is challenging the way universities across the country have adjudicated such sexual assault hearings.

It is not some patriarchal plot that makes rape cases difficult to try. It is a very old principle of Common Law, originating in the Statute of Treasons enacted under Edward III, that no one can be convicted of a felony on the basis of one witness's unsubstantiated testimony. Since in most rape cases there is only one witness, the victim, the desire to get justice for rape victims runs smack against one of the pillars of legal fairness in our system. 

One of the compromises we make in America is to allow prosecutions to proceed based only on the victim's testimony, but only if the victim submits to wide-ranging cross-examination that will establish to the jury (on this theory) whether the witness is credible. Of course this is a sham, in that juries are no better than anyone else at recognizing who is lying. As a basic matter of epistemology it is, I think, all but impossible for us to ever really know what happened in case where the only evidence is the testimony of two witnesses who disagree. But that is how we do it.

Of course university disciplinary hearings are not criminal trials but civil proceedings, so they are not bound by the standards of evidence in the criminal law. Among other things, they do not allow the cross-examination of witnesses. But this introduced another twist into the Yale case. It is another old matter of common law that you cannot file a suit for defamation because of testimony given under oath in a trial; perjury is a criminal matter that only the state can prosecute. But since the Yale hearing was not a trial, well:

Normally, such a lawsuit would not have much of a chance. In Connecticut and other states, witnesses in such “quasi-judicial” hearings carry absolute immunity against defamation lawsuits.

But the Connecticut Supreme Court in June gave Mr. Khan’s suit the greenlight to proceed. It ruled that the Yale hearing was not quasi-judicial because it lacked due process, including the ability to cross-examine witnesses.

“For absolute immunity to apply under Connecticut law,” the justices wrote, “fundamental fairness requires meaningful cross-examination in proceedings like the one at issue.”

Since cross-examination was not allowed, said the court, the Yale hearing was not even “quasi judicial” and thus merits no real respect from the law.

If you want the details of the original incident, the Yale Daily News has them here. This story also mentions that Khan is suing the university for $110 million and the grounds that he was expelled without being allowed to properly defend himself against the rape accusation. This is what his lawyer said after he was acquitted in his criminal trial:

We’re grateful to six courageous jurors who were able to understand that campus life isn’t the real world. Kids experiment with identity and sexuality. When an experiment goes awry, it’s not a crime.

Here again we run into the problem that university disciplinary hearings for sexual assault feel to the people involved like trials. The victim is seeking justice, the accused is trying to defend his life and reputation. But because they are not trials, they are not protected by any of the sacred aura that surrounds actual criminal courtrooms. Hence, at least in Connecticut, the witnesses can be sued for defamation. According to the Times story, university lawyers across the country are now trying to figure out if witnesses in their Title IX proceedings might be subject to defamation lawsuits and what they might do about it.

The root cause of this mess is having universities carry out what are in effect trials for rape. On the one hand this seems to be required by Title IX, the federal law that guarantees women equal access to education; it's hard to get an education if you're constantly worried about getting raped, and it would be bizarre for universities to sanction people for, say, verbal harassment while throwing up their hands at actual sexual assault. On the other hand, by holding what look and feel like rape trials in a setting outside a proper courtroom we enter into a netherworld where nobody seems to know what rules actually apply and what justice actually looks like.

We are nowhere near to resolving any of this.