Josef K. in Washington: Closing the Courthouse Door

Erwin Chemerinsky is one of the country’s most distinguished legal scholars—the dean of the University of California, Berkeley School of Law, the author of several books, and a frequent commentator on the Supreme Court who is able to explain legal complexities clearly. His subject in Closing the Courthouse Door is a dozen legal doctrines that make it difficult or impossible to vindicate our constitutional rights through the judicial system. A few were created by Congress, but mostly they are the work of the Supreme Court, which in his view goes to great lengths to stop Americans from getting their day in court. The twentieth-century expansion of civil liberties and civil rights encouraged Americans to go to court to hold government and business more accountable. The Court responded by reinterpreting the Constitution and procedural rules to stop lawsuits it viewed as undesirable.

Many of these doctrines are not well understood by people outside the legal profession. For example, as Chemerinsky observes:

If the Supreme Court were to hold that the government can give unlimited amounts of money to religious schools, the decision would make the front-page headline of every newspaper in the country. But if the Court were to hold that no one has standing to challenge the government when it gives money to parochial schools, that would get far less attention. Yet the effect is exactly the same: if no one can challenge a government action in court, the government can do what it wants.

Article 3 of the Constitution ensures that the courts only hear genuine “cases and controversies,” but it was not until the 1920s that the Supreme Court began using it to limit who can sue the government. In 1992, the Court declared, in Lujan v. Defenders of Wildlife, that citizens lack standing to challenge a government action in court unless it causes “a concrete and particularized” injury to the person suing. Chemerinsky thinks this is absurd: he argues that “it makes no sense to have a situation where no one can sue because of a hypothetical concern over wanting to make sure that there is the best plaintiff.” (True to his principles, Chemerinsky is one of the legal scholars who has filed a lawsuit challenging Donald Trump’s business ties as a violation of the Constitution’s emoluments clause—a challenge that some experts predict will fail for lack of standing.)

What is standing? The standing doctrine prevented Adolpho Lyons, an African-American choked until he became unconscious by Los Angeles police in a routine traffic stop in 1976, from requesting an injunction against the LAPD’s chokehold policies. He was able to sue for his injuries and collected a nominal settlement, but the Supreme Court declared that Lyons could not challenge the police policy of using chokeholds, because he could not show that he would likely be the victim of one in the future. Obviously, nobody could show that—and so nobody has standing to challenge the policy in court. Police officers continue to use chokeholds, as the death of Eric Garner in 2014 reminds us. (...)

In criminal cases, Congress and the Court have dramatically reduced federal judicial review of convictions and sentences pursued through habeas corpus petitions. (“Habeas corpus,” Chemerinksy explains, “allows a federal court to provide relief to a person who was convicted or sentenced in violation of the Constitution and laws of the United States,” and has been used, for example, to challenge “grossly disproportionate” sentences.) Apparently troubled by repeated prisoner petitions, the Court has erected technical barriers to them. For example, it found that petitioners who failed to raise their constitutional challenge in state court cannot later raise it in a habeas petition, in effect dooming those whose defense lawyers failed to raise the challenge earlier. In 1996, during an upsurge of tough-on-crime sentiment, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). One of its stated aims was reducing the number of appeals filed in death penalty cases, and it erected further obstacles to habeas petitions, including a one-year statute of limitations.

More importantly, AEDPA forbids habeas petitions unless the state court decision against the prisoner was an “unreasonable application of clearly established federal law.” In the Court’s view, this means that the error in the state court’s decision must be “beyond any possibility for fairminded disagreement.” But as Judge Stephen Reinhardt explains:

If the “fairminded jurist” rule were taken literally, it would mean that a federal court could never grant habeas relief. That is because, in order to grant habeas relief, we would need to find that each of the state court judges who denied the petitioner’s claim was not fairminded…. In fact, under the Court’s rationale, if only a single Supreme Court justice agreed with the state court, the rest of the Court would have to adopt the view that the dissenting Justice was not “fairminded” in order to grant habeas relief.

Chemerinsky attacks not only doctrines that reduce government accountability but also those that protect private defendants by keeping plaintiffs out of court. In 1938, the Federal Rules of Civil Procedure made it possible to initiate a lawsuit by filing a plain-language complaint setting out what the plaintiff intends to prove. Because plaintiffs cannot begin acquiring information from the defendant (in the process called “discovery”) until a complaint is filed, the rule ensures that complaints will not be dismissed for lack of evidence. Injured persons claiming that a company knew its products were unsafe or plaintiffs claiming employment discrimination, for instance, normally need discovery to prove their case, and the legal reformers who drafted the 1938 rules aimed to make this possible. Convinced that legal technicalities were keeping legitimate lawsuits out of court, the Court followed their recommendation and created an open-door policy.

However, in Ashcroft v. Iqbal (2009), the Supreme Court unexpectedly reversed this seventy-year-old rule. The Pakistani-American plaintiff had been arrested in November 2001 in relation to the September 11 attacks and held for months. He charged that he was arrested solely on the basis of his religion and ethnic background, but to win the case he would have to prove the discriminatory motive of the officials he was suing. For that, he would need discovery. But the Court demanded that when plaintiffs file complaints, they must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

As one writer puts it, the decision threatens to trap plaintiffs in the catch-22 of needing discovery to get discovery. Citing two studies, Chemerinsky argues that Iqbal has had harsh effects on civil rights plaintiffs as well as criminal defendants, and has led to cases being dismissed much more frequently. Here, however, matters are not as clear as he suggests; there have been more than a dozen studies of Iqbal’s effect, and they disagree substantially over whether it has made a difference.

Other doctrines that limit access to courts include restrictions on class actions, which are the only way that large groups of consumers who individually suffer relatively small losses from corporate misconduct can afford to bring suit. The Court has made it harder to certify classes and has imposed requirements that plaintiffs give notice to all individuals who might be affected by the case, which can be extremely expensive. Furthermore, it has upheld arbitration clauses that forbid class actions, even if state law declares those clauses illegal because consumers and employees have no real choice whether to sign the contracts that require arbitration. Justice Scalia, writing for the majority in ATT Mobility v. Concepcion (2011), explained that if defendants face the threat of class actions they “will be pressured into settling questionable claims.” In Chemerinsky’s words, “the Court’s desire to protect business and its hostility to class action suits could not have been more clearly stated.” (I once heard a distinguished federal judge quip that Justice Scalia’s definition of a frivolous lawsuit was any lawsuit that the plaintiff wins.)

Chemerinsky might have mentioned additional doctrines created by the Court that make it hard for civil rights plaintiffs to bring their cases to trial. Recognizing that civil rights cases don’t always provide plaintiffs with a financial remedy, in 1976 Congress passed a law permitting courts to award attorneys’ fees to prevailing parties in many such cases. The Court has since whittled away at that law. In 1985 it ruled that prevailing plaintiffs would not be entitled to compensation for any attorneys’ fees incurred after a settlement was offered unless the settlement was less than the award at trial; a year later it allowed defendants to offer settlements on the condition that plaintiffs waive their right to attorneys’ fees. In one case, the Court ruled that plaintiffs would not be entitled to attorneys’ fees if the defendant provides the relief a plaintiff requests, even if the case has gone on for years, with the legal bills mounting. The decision empowered defendants whose strategy is to bankrupt public-interest law firms by drawing a case out for years and then granting the requested relief at the last moment before trial.

In Chemerinsky’s view, the basic mission of the federal courts is not to settle disputes among litigants, but to interpret and enforce the US Constitution, while safeguarding it from the will of political majorities. The judiciary’s job is

to serve as the nation’s moral conscience—an institution responsible for identifying values so important that they should not be sacrificed, and reminding the country when its own most cherished values are being violated.

If this is indeed the judiciary’s task, then the doctrines Chemerinsky discusses, including many unanimous decisions to throw cases out of court, are a regrettable failure. Chemerinsky clearly sees matters that way. But readers are likely to come away from his book with a far less agreeable and idealistic image of how the Supreme Court views its mission: it labors hard to keep cases out of court, and it succeeds regularly, decade after decade. Perhaps the Court does so out of fear of a flood of frivolous litigation, perhaps out of a bias toward giving government officials a wide margin of error, or perhaps out of a political ideology of “our Federalism,” the Court’s sentimentalized term for favoring states’ rights over national government (except when the state courts are too friendly to class action plaintiffs, in which cases, under the Class Action Fairness Act of 2005, the suits are moved to the federal courts).

by David Luban, NY Review of Books |  Read more:

Image: Anacleto Rapping/Los Angeles Times/Getty Images

[ed. See also: Who Killed Habeas Corpus?]

Who Owns Water?

As Scott Carpenter and a few friends paddled down the Pecos river in New Mexico last May, taking advantage of spring run-off, the lead boater yelled out and made a swirling hand motion over his head in the universal signal to pull over to shore. The paddlers eddied out in time to avoid running straight through three strings of barbed wire obstructing the river.

Swinging in the wind, the sign hanging from the fence read “PRIVATE PROPERTY: No Trespassing”.

One member of their party waded into the swift water to lift the wire with a paddle for the others to float under. As they continued downstream, Carpenter, a recreational boater from Albuquerque, looked over his shoulder a see a figure standing outside the big ranch house up the hill. He offered a wave, but received nothing in return.

It’s a scene playing out with increasing frequency in New Mexico, where a recent bid to legally privatize streams has public users like Carpenter more than a little alarmed, not least for the precedent it might set beyond the borders of this western state.

While the fight over US public lands has reached a fever pitch unlike anything seen in recent decades, and the Trump interior department seeks to lease out vast areas to private interests for mining and drilling, the fate of public waterways has largely flown under the radar. Now New Mexico has become a battleground for that very issue, with the state government, landowners, and outfitters on one side of the fight and anglers, boaters, recreationalists and heritage users on the other. At the heart of the argument: who owns the water that has long been considered the lifeblood of the arid west.

Water use rights and access vary by region across the country, though the water itself has always been a public resource for people to fish, paddle, wade and float in. Private landowners have long taken unsanctioned steps to keep the public out of waterways, as in the recent case of an Arizona man convicted of shooting at kayakers boating down a river that runs through his land.

But in the last hours of 2015, efforts to bar public access received official sanction, when New Mexico’s state government quickly and quietly passed a bill that implies private ownership of public waters that run through private land. It was a response to a statement from New Mexico’s then attorney general, Gary King, that the public can wade and fish in streams running through private property, as long as they remain in the stream, which is in line with common doctrine in many states. Landowners and outfitters protested.

The rule remained mostly dormant until late December, when in a special meeting with only 10 days’ notice – just a third of the 30-day standard – the state began a process to allow landowners to certify streambeds as private property.

“Prohibiting access from the public is privatizing what has been historically ours, and the way this happened is chilling,” says Robert Levin, New Mexico director of the American Canoe Association. “The process was hasty and moved through more quickly than it should have been. From a recreation standpoint on this, you start to worry about an erosion of inclusion.”

Garrett VeneKlasen, 51, grew up fly-fishing the Pecos, a well-known river that cuts across western New Mexico, with his father. He remembers when it was possible to walk nearly the entire length of the river without running into fencing. “As long as you were respectful to the landowner and private property, you could pretty much come and go and fish right through that entire watershed,” he recalls. “There was almost no exclusivity.”

But when the experience of fly-fishing became a commodity, things started to shift. VeneKlasen had a front-row seat to the evolution when he landed his first job as a fishing guide at 15 years old. He explains it with an example he’s seen play out on what’s now a fenced section of the Pecos.

“That landowner started out just like any landowner, and he had trout in the stream that runs through his property. He decided to do some in-stream improvements, and the trout fishing got better. Then he started to stock big trout in the section that ran through his land, and feed them so they’re artificially big – and suddenly, you can sell an experience. So he fences the river to keep other people out, and to some extent, to keep those fish in. And just like that, a lifestyle became an industry.”

by Cassidy Randall, The Guardian |  Read more:

Image: Garrett VeneKlasen

Should Some Species Be Allowed to Die Out?

Under the rules of the Endangered Species Act, once a species is discovered to be at risk of extinction, government agencies are required by law to take steps to save it. For years, critics have challenged that mandate, arguing that it undercuts the ability to weigh a species’ value or to consider the economic impact of its preservation — for instance, the cost of prohibiting logging in a valuable tract of forest. Since Donald Trump took office, these objections have gained ground; there are currently six bills pending in Congress, all aimed at overhauling (some would say gutting) the Endangered Species Act. (...)

One arguably legitimate criticism of the Endangered Species Act is that trying to save every creature is both unrealistic and inefficient. Because the act requires that we help all species at risk of extinction, the argument goes, agencies end up spending vital resources on less-important species, rather than concentrating on the most critical ones. Assigning value to species is a nearly impossible undertaking, because it involves a bewildering number of variables, including ecological importance, utility (coral reefs can act as breakwaters during coastal storms), the species’ place in our heritage, even its beauty or symbolism. Conservation has no formula for weighting these factors, either alone or in combination, and it’s hard to imagine one that people could agree on. How do we decide whether the wolf or the snow leopard is more valuable?

In response, some conservation groups have argued that we should put our efforts toward saving the most genetically diverse species, with the goal of increasing our long-term ecological resiliency. (In this view, saving the akikiki, which is one of 18 living species of Hawaiian honeycreeper, would be a low priority.) Others have suggested prioritizing “functional diversity”: the preservation of key species, like predators and pollinators, whose presence can radically affect an ecosystem.

All of which makes the akikiki a complicated case in point: In the face of growing political and environmental pressures, how should we decide what to save?

Of the 1,280 endangered animals and plants listed by the United States Fish and Wildlife Service, 557 are from Hawaii, including the short-tailed albatross, the Hawaiian hoary bat and the Kauai cave wolf spider, as well as four species of turtle, six damselflies, two varieties of pond shrimp, four snails and seven kinds of yellow-faced bee. Conservationists have called the islands “the extinction capital of the world.”

This is true in part because Hawaii is a tropical paradise so fertile that seeds from a foreign plant can spread to blanket the island in the space of a few years. When the islands were new bits of volcanic rock in the middle of a vast ocean, this fertility worked in species’ favor, allowing them to diversify, Galapagos-style, into dozens of discrete niches, with few competitive pressures. In the last hundred years, though, those same factors have become a liability. Hawaii’s tropical weather and location as a Pacific trade and tourism hub have made it a kind of petri dish for invasive species, which arrive from nearly every continent and multiply extravagantly. On the Big Island, mongoose have proliferated, devastating local bird populations; so have Puerto Rican coquí frogs, which chirp abruptly and erratically at 90 decibels, like a mobile infestation of alarm clocks. Cases of rat lungworm have risen sharply over the past five years, driven first by the arrival of the lungworm parasite, from Southeast Asia, followed by the spread of a nonnative slug that carries the disease. Kauai, meanwhile, is plagued by feral pigs, rose-ringed parakeets and a new invasive seaweed that arrived either in ballast water or in the dumped contents of aquarium tanks and that has begun to smother the island’s reef ecosystem. Since 1992, when a hurricane knocked over chicken coops, the island has also been overrun by roving bands of roosters and chickens; on my first day in Lihue, I saw dozens of them, many trailing hordes of chicks.

Faced with these cosmopolitan arrivals, island species can seem like the wildlife equivalent of a naïve Midwesterner asking a guy in Times Square to hold his wallet. Native trees and plants have often lost their defenses — the islands have stingless nettles and thornless raspberries — and in many cases grow more slowly, making them easy marks for more aggressive species like miconia, a flowering plant from Central America that grows like a weed, produces thousands of seeds and shades out everything in its vicinity. Native animals and birds don’t fare much better. “We have a seabird, the Laysan albatross, that nests on the ground,” said Joshua Fisher, a biologist with the U.S. Fish and Wildlife Service. “A rat or a cat or a mongoose can literally walk right up to it and start eating its eggs. The birds just don’t know what to do.”

And once nonnative species do begin to take over, stopping them can be a Sisyphean task. One invasive fungus that kills ohia trees can spread just from the quantity of dirt trapped in the tread of a sneaker. (To combat this, Hawaii has asked hikers to scrub their boots with alcohol or a bleach solution.) A recent study at Kahului Airport on Maui found an average of one new insect species arriving every day. In the Alakai and elsewhere, these pressures have steadily squeezed out native species, at the same time as development has left them with less land to occupy. On top of that, even when an endangered animal survives in captivity, it often can’t be reintroduced to the wild without falling victim to the same factors that drove it toward extinction in the first place.

As a result, our role as stewards of the earth is becoming more and more like that of doctors in a global intensive-care unit, trapped in a cycle of heroic, end-of-life measures. Many conservationists now operate in a state of constant maintenance: endlessly working to weed out invasive plants and predators, while trying to prop up species that have fallen into decline. At worst, an endangered animal becomes a literal ward of the state: preserved only in breeding facilities or in tiny, meticulously maintained “wild” habitats. “They’re like patients that are never going to be discharged from the hospital,” the environmental writer Emma Marris told me. “It’s a permanent situation.”

The official term for such species is “conservation-reliant.” When I spoke with Michael Scott, a wildlife biologist at the University of Idaho who helped direct the California condor research effort, he estimated that roughly 84 percent of species on the United States endangered list are currently conservation-reliant. Of those, he added, a vast majority are in Hawaii. “Hawaii is the world capital of conservation-reliant species,” Scott said.

It’s not surprising that, at least initially, an endangered species would survive only with outside help. Where things get more complicated is when that care becomes perpetual. Proponents of the Endangered Species Act like to point to its efficacy: of all the species listed since 1973, 99 percent are still around. The flip side, critics observe, is that only 1 percent of those species have been sufficiently rehabilitated to leave the list.

But while conservation might benefit from a nuanced discussion of how best to allocate resources around vanishing species, a far more sweeping set of proposals has recently been put forward by elected officials hoping to take advantage of the Trump administration’s willingness to weaken the environmental protections afforded by the Endangered Species Act. One bill, proposed by Pete Olson, a Republican congressman from Texas, would require a financial accounting before a species could be listed as threatened, ostensibly to prevent overspending but in practice giving local and federal governments a way to thwart new listings, especially those that might conflict with business interests like ranching, logging and development. Another, sponsored by Dan Newhouse, a Republican congressman from Washington, would change the criteria used to determine whether a species is endangered by expanding the definition of “best available” science to include studies conducted by local governments — a practice that Nora Apter at the National Resources Defense Council has described as “undermining the scientific listing process” by giving equal weight to potentially shoddy or biased studies.

“Behind closed doors, I think most conservationists would agree that some judicious modifications to the act could improve the situation,” Chris Costello, a resource economist at the University of California, Santa Barbara, says. But, he adds, “there’s also a real and legitimate concern that if you open the E.S.A. up to economic criteria, it will almost immediately become much weaker. Without that mandate, it’s very hard to generate the political will to save species.”

Political maneuvering around the Endangered Species Act isn’t particularly new. Since the late 1980s, critics have argued that the act limits industry and also hurts ranchers and loggers, for instance, by preventing ranchers from shooting wolves that prey on their livestock (a prohibition that has now largely been repealed). In 2008, an investigative report by The Washington Post concluded that the Bush administration managed to limit the species eligible for protection by erecting “pervasive bureaucratic obstacles” — for instance, by preventing Department of the Interior officials from using information in agency files that might support new listings.

What makes the current set of proposed bills different, Apter and others say, isn’t their content but the current political environment — a sympathetic president and a Republican-controlled House and Senate — which makes them more likely to succeed. The real purpose of the bills, opponents argue, is to create business-friendly loopholes that would drastically undermine the protections of the original law, not least because one of the biggest impacts of the act isn’t the resuscitation of an individual species but the other benefits that effort brings. According to the act, protecting a species also means preserving its habitat, a provision that inevitably helps the vast number of plants and animal that happen to occupy the same ecosystem. (A fence built to keep invasive wild pigs out of the akikiki’s breeding area, for instance, will also help protect dozens of native plants and trees, including the ohia, because it will stop the pigs from spreading invasive seeds in their feces.)

“They’re basically trying to steamroll it,” Apter told me. She said that at least one bill was also trying to make the listing requirements for endangered species more elaborate, further hobbling a process — data gathering, scientific assessment and priority and practicality evaluation — that is already backlogged. (The U.S. Fish and Wildlife Service puts the number of potentially at-risk species waiting review at 550.)

When I mentioned this concern to Paul Ferraro, an economist at Johns Hopkins University, he acknowledged the danger posed to the Endangered Species Act by the current bills. But he also noted that, at a purely economic level, some trade-offs will be inevitable. “The fact is that when you spend resources on one species, you by definition are not spending them on another,” Ferraro said. “In the end, you can’t get away from putting values on species.”

by Jennifer Kahn, NY Times Magazine |  Read more:

Image: Alaka’i swamp. Spencer Lowell for The New York Times

Best Buy’s Bait and Switch Return Policy

The Wall Street Journal reports today on Best Buy’s aggressive anti-returns policy. The reason this looks, and is, ugly, is that it appears that the electronics retailer is violating consumer advertising fraud rules. We’ll get into more detail, but at a high level, Best Buy has hired a snoop service, Retail Equation, which apparently also serves other retailers.

Return fraud is a legitimate problem. Customers can and do try to return stolen items, or ones they’ve broken or even merely used. The Journal reports that 11% of items bought at retail are returned, and of that, 11% (no typo) are believed to be fraudulent returns.

However, some online vendors are encouraging customers to view returns as integral to the purchase, and go to great lengths to make returns easy. For instance, many stores that sell shoes will include a UPS return tag. You don’t need to call, you can just give the box to the UPS man if he comes regularly to your building or call to have him pick it up. You will be charged something modest for the return, like $6.95. But it is as close to frictionless as it can be made.

The problem with what Best Buy is doing is that it is advertising a not-very-restrictive returns policy, when in fact if you try returning goods “too often,” even if you are adhering perfectly to Best Buy’s advertised policy. Even though Best Buy is somewhat restrictive, it’s rules are supposedly clear: customers can return products in 15 days if they have a receipt.

But there is the stated policy versus the actual policy. From the Journal:

Jake Zakhar recently returned three cellphone cases at a Best Buy store in Mission Viejo, Calif., and a salesperson told him he would be banned from making returns and exchanges for a year. The 41-year-old real-estate agent had bought cases in extra colors as gifts for his sons and assumed he could bring back the unused ones within the 15 days stated in the return policy as long as he had a receipt. 

The salesperson told him to contact Retail Equation, based in Irvine, Calif., to request his “return activity report,” a history of his return transactions. The report showed only three items—the cellphone cases—totaling $87.43. He asked the firm to lift the ban, but it declined. When he appealed to Best Buy and tweeted his report, the company referred him back to Retail Equation. 

“I’m being made to feel like I committed a crime,” said Mr. Zakhar. “When you say habitual returner, I’m thinking 27 videogames and 14 TVs.”

It is not clear that this policy is even remotely legal in light of Best Buy having a published policy that says nothing about limiting returns and that Best Buy is not claiming that Zakhar engaged in any kind of fraud. In fact, if he wanted to make an issue of it, he could pay on a credit card, return the merchandise, and then dispute the charge if Best Buy tried to refuse his attempt to return undamaged goods. He might need a buddy to film or otherwise provide proof of his effort to return goods.

While other merchants have been tightening their policies (the famously generous LL Bean standard of “lifetime satisfaction” has now been dialed down to a mere “return in a year or less), discriminating by using an unaccountable third party also raises questions of discrimination that ought to raise red flags. It is not hard to imagine that these programs also filter by ZIP code, which is a proxy for general income ranges and also have their ethnic mixes well tracked by companies that specialize in consumer market segmentation. And this is consistent with the fact that the Journal depicts Retail Equation as giving consumers a score. Retail Equation lists some of the that can get you dinged:

Returning an item after a certain period 

Returning items that tend to get stolen at the retailer 

Returning a high dollar amount 

Returning an item just when a store closes

In other words, if you are a perfectly upstanding customer making a return that is kosher (goods in fine shape, valid original receipt), you still get dinged simply because someone who is engaging in fraud could engage in a behavior that has an element in common with what you did (return a costly item, show up near closing time).

by Yves Smith, Naked Capitalism |  Read more:

Image: via

Experiencing the Joy of Transitioning Feels Really Powerful

The last time I saw Mallory Ortberg, author of the New York Times-bestselling Texts from Jane Eyre, co-founder of The Toast, and Slate’s Dear Prudence columnist, we spent a glorious afternoon coasting via aerial tramway to the top of a serious mountain, then rode something called a “mountain coaster” back down—which did not surprise me, because Mallory is the kind of friend and the kind of person who makes me feel like I can do new and brave things. With The Merry Spinster: Tales of Everyday Horror, Mallory has created something new and brave; it’s a gorgeously witty, frequently dark, consistently satisfying collection of tales that could only have come from this author. Like all the best fairy and folk tales, the stories offer surprises and sly winks to keep you in thrall, while illuminating all the vulnerability and deep complexity of relationships between family, friends, lovers, and enemies. It was a joy to chat with Mallory last month about the work of imposing shrewd new twists on beloved stories and characters, the unique challenges and pleasures of the short story form, and what it was like to write this new anthology while transitioning.

Nicole Chung: I’m always happy when we talk, and today I’m glad to have such a thrilling excuse to talk to you. Congratulations on your book! How are you? What’s been going on?

Mallory Ortberg: Well, today has been a very big day. When you called, I was finishing up at the gender clinic, where I got my very first injection of testosterone!

NC: Oh, congratulations, I am so excited for and proud of you!

MO: Thank you! As you know, I was on patches at a low dose for 90 days, in part because I was operating on a theory (that theory being: maybe I am trans; I don’t know really know what sort of trans experience this is; I don’t know how much of this I want), and that experiment went so very, very well. When I took a pause, it was very clear to me that I wanted to continue. So I decided to switch to injections. I just got my first shot at the clinic, and it felt fantastic.

NC: As your friend, I’ve felt really glad that there has been joy in each new step for you, which is not to minimize the challenges at all.

MO: It was a little over a year ago that I first started asking myself, consciously, “Am I trans?” I was finishing the book at that point. So much of the last year has been painful, isolating, frightening—but the moments of clarity, joy, and excitement that have come from being around other trans people and accessing medical transition have helped me realize this is not just about what I’m afraid of; this is also about wanting something, desiring something, excitedly looking toward the future and visualizing real possibility. Letting myself experience the joy of transitioning, and not just the fear, feels really powerful.

I’ve been so anxious with the idea of going on book tour. I know I’m going to look different than the last time I had a lot of public appearances. But as much as one can be certain of anything, I know that I want to go do this book tour as an out trans person.

by Nicole Chung, LitHub |  Read more:

Image: uncredited

[ed. Nobody on the web writes like Mallory (Danny). Here's another interview (Mallory is not gone). See also: So You've Decided to Drink More Water and Everything That’s Wrong About Raccoons]

Joel Meyerowitz

[ed. See also: Photographing a New Era of American Leisure During the Vietnam War]

Eusebio + Christina Saenz de Santamaria, Crazy Beautiful

via:

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Democrats and the Crisis of Legitimacy

The American electoral system, and with it what passes for representative democracy, is facing a crisis of legitimacy reflected in continued fallout from the 2016 election. The duopoly political Parties—Democrats and Republicans, have both experienced mass exoduses for reasons specific to each. Because they have effective control over which candidates and programs get put forward in elections, they must be gotten out of the way for constructive political resolution to be possible.

The Republican Party saw a mass exodus of registered voters when George W. Bush’s war against Iraq became a conspicuous quagmire. By the time of the financial crisis that marked the onset of the Great Recession, some fair number had registered as Democrats while others dropped their duopoly Party affiliation to become what are implausibly called ‘independents.’

At the time it became apparent that the Obama administration was intent on restoring the forces of economic repression— Wall Street and corporate-state plutocracy, the Democrats saw their own mass exodus. Against the storyline of competing interests, registered voters fled both Parties. By implication, these mass exoduses suggest that neither duopoly Party represents the programs and candidates of interest to voters.

These mass exoduses have several implications: (1) with voters fleeing both duopoly Parties, it is the political system that has lost credibility, (2) the back-and-forth of faux ‘opposition’ that provided the illusion of political difference has lost potency as a driver of domestic politics and (3) charges that foreign influence determined the 2016 electoral outcomes are wholly implausible when placed in the context of the scale of voter disaffection with the duopoly Party system.

For instance, 71% of eligible voters didn’t vote for the Democratic Party candidate. 73% didn’t vote for Donald Trump (Clinton won the popular vote). Ninety million eligible voters (40%) didn’t cast a ballot at all. Why it makes sense to present outcomes in terms of what voters didn’t do is (1) the duopoly Parties control which candidates and programs are put forward and (2) voters have fled the duopoly Party system rather than simply switching Parties.

The political problem for the national Democrats is that one can endorse the very worst that can be said about their alleged opposition, the Republicans, without raising their standing. Between 2009 and 2016 somewhere between eight and ten million registered voters— 20% of registered Democrats, fled the Democratic Party. In conjunction with the loss of over 1,000 legislative seats over this same period, the Democrats were in the midst of a full blown political crisis going into the 2016 election.

But here’s the punchline— the Republicans were also in the midst of a political crisis of their own. As disaffection with Barack Obama’s programs took hold, national Republicans saw little benefit (top graph). Voters didn’t simply switch Parties. They left both Parties. The implied motivation isn’t that the ‘opposition’ Party had better ideas. Had this been the case, total Party affiliation would have remained largely unchanged. But that isn’t the case. For a two-Party political system, such abandonment of the ‘center’ is a textbook definition of a crisis of legitimacy.

Over the prior century the duopoly Party strategy has been to maintain control of the political system by controlling the electoral process regardless of levels of political disaffection. The Democrats’ ‘crises’ of 1968 and 1972 were a result of systemic inflexibility in the face of widespread political disaffection. Phrased differently, tightly controlled electoral ‘choices’ are inadequate during crises of systemic legitimacy. Their ultimate response was to lead a right-wing coupagainst the political accommodations of the New Deal and the Great Society.

Back in the present, the strategic term for newly unaffiliated voters is ‘independent,’ as if the wholesale, willful abandonment of Party affiliation solved the problem of Party control over which candidates do and don’t get to run for office. By 2016 over 40% of registered voters, including those who had recently left the Democratic Party, were self-defined as unaffiliated with either duopoly Party (graph below). And this figure leaves aside thirty million eligible voters who aren’t registered to vote.

In response, political pollsters created categories of ‘Democratic-leaning’ and ‘Republican-leaning’ as if (1) the mass exodus from Party affiliation were a fashion statement rather than one of political disaffection and (2) duopoly Party control over the electoral process doesn’t effectively preclude unaffiliated candidates and Parties from running for office. Including unaffiliated voters in duopoly Party tallies is a strategy of systemic legitimation in that it implies choices outside of the duopoly Party system that don’t exist.

The institutional response has been to re-conjure the ‘foreign influences’ that so well supported American imperial endeavors in the past. For those short on nostalgia for the days of MAD (Mutual Assured Destruction) and genocidal slaughters, what hasn’t yet been well explained is (1) how foreign meddling prevented one hundred and sixty five million eligible voters (71%) from voting for Hillary Clinton and (2) how this external meddling differs from internal meddling in the form voter disenfranchisement and the legalized bribery that ‘motivates’ American politics.

by Rob Urie, Counterpunch |  Read more:

Images: Carlos Pacheco and Gallup

Kitty Hawk: Autonomous Flying Taxis

Autonomous flying taxis just took one big step forward to leaping off the pages of science fiction and into the real world, thanks to Google co-founder Larry Page’s Kitty Hawk.

The billionaire-backed firm has announced that it will begin the regulatory approval process required for launching its autonomous passenger-drone system in New Zealand, after conducting secret testing under the cover of another company called Zephyr Airworks.

The firm’s two-person craft, called Cora, is a 12-rotor plane-drone hybrid that can take off vertically like a drone, but then uses a propeller at the back to fly at up to 110 miles an hour for around 62 miles at a time. The all-electric Cora flies autonomously up to 914 metres (3,000ft) above ground, has a wingspan of 11 metres, and has been eight years in the making.

by Samuel Gibbs, The Guardian |  Read more:

Image: Kitty Hawk

[ed. It was only a matter of time. I hope there are private versions.]

On the Mysterious, Powerful Effects of Placebos

In 1957 psychologist Bruno Klopfer reported on the amazing case of a man he called Mr. Wright. Mr. Wright was suffering from advanced cancer of the lymph nodes. Tumors the size of oranges studded his skeleton and wound throughout his organs. He was so near death that he was more malignancy than man, his face pale on the pillow, an IV plunged into one of his stringy veins.

Some people, as they near the end of a long battle with cancer, their hair gone and their teeth loose in their sockets, are ready to exit, exhausted by the demanding treatments, by the burn of radiation and the poison of chemotherapy. But Mr. Wright, because he had a severe anemic condition, was not eligible for the treatments of the day, which were radiotherapy and nitrogen mustard. He had wasted away all on his own, without the help of cures that also kill. But his will to live, his desire to see the day, was strong, and the shadow of death that fell across his hospital bed, a dark hole into which he would soon dwindle and disappear, terrified him.

Then one day Mr. Wright—“febrile, gasping for air, completely bedridden,” according to his doctor—overheard people talking about a new cancer cure called Krebiozen, a horse serum, which was being tested at the very hospital he was in. Hope sprang up like a stalk inside him. He begged his doctor for a dose, and his doctor, although doubting the drug would help at this late stage, nevertheless loaded his syringe and took his patient’s wasted arm.

Three days passed as Mr. Wright lay quietly in his hospital bed. On the third morning after the shot of Krebiozen had been administered, his doctor returned to examine him, and an incredible thing had happened. Before the doctor arrived, Mr. Wright had swung his feet over his hospital bed and for the first time in months stood up straight on the floor, strong enough to support himself, to walk, even to stride, which he did, out of his room and down the ward to the station around which the nurses flurried. The doctor found this man who had been at death’s door now joking, flirting, cavorting. X-rays showed that the tumors had shrunk from the size of oranges to golf balls—having melted “like snowballs on a hot stove.”

No one could quite believe it, but no one could deny it either, because here was the man, once washed out but now ruddy with health and hope. Within ten days Mr. Wright was discharged from the hospital, cancer-free, and he went home to pick up where he had left off before cancer came to claim him, stepping back into his life as if slipping into a perfectly fitted suit. He was alive and loving it.

Days passed, weeks passed, and Mr. Wright remained free of malignancies. Within two months, however, reports came out in the news saying that the Krebiozen trial had concluded and the drug was worthless. Soon after that Mr. Wright’s tumors returned and he was back in the hospital, once more staring at the drain hole of death, at the shadow falling across his bed.

His doctor then did something that doctors today would never be permitted to do. He told Mr. Wright a story, a lie. The news reports, the doctor said, were wrong. Krebiozen was in fact a potent anticancer drug. Why, then, Mr. Wright wondered, had he relapsed, and so badly? Because, his doctor said, Mr. Wright had unfortunately been given an injection of the stuff from a weak batch, but the hospital was expecting a new shipment and it was guaranteed to be two times stronger than even the most potent Krebiozen to date. Mr. Wright’s doctor delayed administering anything to his patient so that his anticipation would build. After several days had passed, the doctor rolled up Mr. Wright’s sleeve; Mr. Wright offered his arm, and the doctor gave his patient a new injection—of pure water.

Again hope made an entrance. Mr. Wright let all his tumors go. Once again they shrank and disappeared until no trace of them could be found in his body, and once again he left the hospital. It’s not hard to picture him dancing his way through his days. A second remission! Mr. Wright lived for a further two months without symptoms and then, unfortunately for him, came another news report. The American Medical Association, after numerous tests on patients, issued its final verdict on Krebiozen, confidently declaring the drug to be useless. Mr. Wright’s tumors reappeared, and this time, within two days after his readmission to the hospital, he was dead.

The Pharmaceutical Factory in Our Heads

In the 1970s came the discovery of endorphins, which are opiate-like chemicals the body manufactures all on its own and which play a key role in the placebo effect, especially in cases of pain. The discovery led scientists to uncover a rich supply of nerves linking the brain to the immune system, which in turn resulted in the rise of a new branch of medicine called psychoneuroimmunology. Studies in this new medicine suggested that placebos may work to decrease pain—something they are especially good at doing—by increasing endorphins in the brain.

At the University of California, San Francisco, for example, in a 1978 double-blind experiment with young people who had recently had their wisdom teeth removed, most patients were given a placebo and reported significantly less pain. Then some of the subjects were given naloxone, a drug that is typically administered in emergency rooms in cases when a patient has overdosed on heroin or morphine. Naloxone works by blocking the opiate, thereby immediately reversing the effect of the deadly ingestion. In this study with the wisdom teeth patients, once they were given naloxone, the pain relief they had experienced as a result of the placebo suddenly vanished. Once again the young people were in pain. This outcome provided researchers with a strong suggestion as to how placebos might work. It must indeed be that they released the brain’s natural opiates—endorphins—and that as long as this release wasn’t blocked by naloxone, or by some other organic means, then these endorphins would allow us to find real relief.

Blue and Pink Pills

The form of the placebo has implications for its function. For instance, when it comes to pills, scientists have discovered that blue placebos tend to make people drowsy, whereas red or pink placebos induce alertness. In the 1970s several professors at the University of Cincinnati took 57 second-year medical students and divided them into four groups. Two groups received pink tablets and two groups blue tablets, and of the two groups receiving the same color, one group received one pill and the other group two pills. All of the tablets were inert. Thne students then listened to a one-hour lecture and after that went back to the lab to fill out forms rating their moods.

The results? The students who had received two tablets reported more intense responses than the students who had taken only one tablet. And of the students who had taken the blue tablets, 66 percent felt less alert after the lecture compared to only 26 percent of students who had taken the pink tablets. Medical anthropologist Daniel Moerman believes that the color of a capsule or a pill has a strong significance to the imbiber. Blues and greens are cool colors while reds and pinks are hot colors. A study in Texas showed that red and black capsules were ranked as strongest while white ones were weakest. “Colors are meaningful,” Moerman writes, “and these meanings can affect the outcome of medical treatment.” Blue pills make us drowsy while carmines perk us up. And large pills have more power over us than medium-sized ones, especially if they are multicolored.

The research on the size and color of pills makes one wonder if we might also be more strongly affected by pills embossed or engraved with a name: Tagamet, Venlafaxine, Zyprexa, Abilify, Concerta. Are drug companies not hoping that if they carefully and suggestively label their medicines, we will give their pills extra credence? Clearly the name matters. It is always multisyllabic and often suggests technological prowess. You cannot call a placebo Tim, for instance. The name should bring to mind test tubes and Bunsen burners with their petal-shaped flames. The name should also connote, somewhere in its utterance, the pure peace of good health, the abilities with which Abilify will endow you, the consonance of Concerta, when all the world makes solid sense.

Even more persuasive than pills, at least in the treatment of headaches, are placebo injections. A meta-analysis of a drug called Imitrex—which, when first introduced, was available only as an injection and then later as a capsule or a nasal spray—looked at 35 trials treating migraine sufferers with Imitrex versus placebo and found that, of those patients taking a placebo tablet, only 25.7 percent reported that their headache was mild or gone, compared to 32.4 percent of those treated with a placebo injection reporting relief. This may seem like a small difference, but it is statistically significant and could be expected to happen by chance only twice if the experiment were repeated a thousand times. Over and over, research has revealed that when patients are injected with an inert substance they report more pain relief than those who have simply swallowed a pill. Perhaps there is something about the needle, the press of the plunger as the supposed miracle liquid seeps below the skin and into the muscle, finding its way into the circulatory system, and at last to the wet red charm that sits within its curved cage. While a pill can be quiet, simple, its magic subtler and singular, there is drama in a shot.

Hope

Of course, none of this so far answers the question of exactly how endorphins get released in the first place. It seems to have something to do with belief, with hope, with faith. Even the smallest spark of it helps our heads to secrete chemicals so soothing that their analogues are illegal around the world. People who think they are drinking alcohol, but in fact are not, will nevertheless get tipsy. The opposite of hope is also very telling. Where it is absent, or unknown, medication sometimes fails to work. Valium, for instance, has been shown to affect a person only if he knows he is taking it.

But while there have been many studies done to predict the personality type of placebo responders, they have proven inconclusive. If only we knew! Then we would have a clear class of people to whom we could confidently feed inert substances and who could be assured of getting real relief. No such study, however, has been able to find a personality type, or rather, it would be more accurate to say that all of the studies conflict with one another. Some claim that people who respond to placebos have neurotic personality types; others claim that introverts are more likely to be fooled by placebos; while research from Britain has found that extroverts are the group most susceptible to placebos. Scientists have claimed at different times that placebo responders are both quiet and ebullient; that they have poor ego formation and superegos the size of a city; that they are judgmental as well as easily swayed; that they are trusting and skeptical. The net sum suggests that there is no definitive profile of a person likely to respond to a placebo. Everyone is a responder—maybe not all of the time but some of the time, in some situations, in great pain or fear, perhaps, or with wants so large that they outstrip the self who holds them. We do not know. The only thing we can say for sure is that 30 to 60 percent of the population can be fooled by a trick, by a sugar pill, by water, by an injection of saline or a bright pink sphere glittering in the palm.

by Lauren Slater, LitHub |  Read more:

Image: uncredited

via:

Costco Auto Program

Shopping for a car can be an overwhelming process.

If, say, you know you're looking for an SUV, you have to determine the brand, model, and model year you'd like, as well as the dealership you want to use, whether you'd like to buy new or used, and whether you want to buy or lease. Where do you start your research? Which sources can you trust? What's a reasonable price for a given model?

The Costco Auto Program attempts to eliminate some of that uncertainty. Costco members can use the program's website to research and compare vehicles, calculate monthly payments, and get a discount at participating dealerships. While the size of the discount varies based on the vehicle's class, brand, and model, a Costco Auto Program spokesperson told Business Insider that the average discount is over $1,000 off a vehicle's average transaction price.

And since the program uses the same customers as Costco's retail operation, it has plenty of reasons to vet dealers and salespeople so their customers don't end up feeling like they were tricked — and putting the blame on Costco.

"We're not just providing leads to dealers. We're creating a referral," Costco Auto Program senior executive Rick Borg told Business Insider.

Here's how using the Costco Auto Program is different than the average car shopping process:

1. You have to be a Costco member

This may sound obvious, but while non-members can use some of the Auto Program's research tools, you need to be a Costco member to be eligible for the discounted price.

2. Multiple strands of research are condensed into one place

One of the most difficult parts of car shopping is figuring out where to start and end your research, especially if you don't read car news and reviews for fun.

The Costco Auto Program brings reviews, safety ratings, a financial calculator, and vehicle comparison tool under one roof. While it never hurts to compare research from multiple sources, the Costco Auto Program's website gives customers a good place to start.

3. Your choice of dealerships and salespeople is limited

According to Borg, Costco works with one dealership per brand in a defined geographic area around a given Costco warehouse. And at each participating dealership, only a handful of salespeople are authorized to work with customers shopping through the Auto Program.

Borg said Costco picks dealerships based on their prices, customer satisfaction index (CSI) scores, and reputations on social media. And authorized salespeople are also evaluated based on their CSI scores and must work at their dealership for at least six months before being eligible for the program.

But the limited number of dealerships and salespeople makes things a little more difficult for customers who don't end up satisfied with the first dealership Costco recommends to them. While Borg said Costco can point customers to other participating dealerships if they don't like the first one they're sent to, they may not be geographically convenient.

4. Costco has already negotiated the price

Negotiating the price on your car can be an intimidating process. The dealership has much of the information — inventory, the dealership or salesperson's proximity to their quarterly goals, the average discount customers receive — you need to negotiate the lowest possible price.

Borg said Costco takes a holistic approach when negotiating prices with their participating dealerships, looking at national and local prices for given models, as well as the prices customers can find through other discount programs to determine the discount its members should receive. And since it has a large membership base it can funnel to selected dealers, it has more leverage than any individual shopper.

by Mark Matousek, Business Insider | Read more:
Image: Ted S. Warren/AP

Whose University Is It Anyway?

Toward the end of his life George Orwell wrote, “By the age of 50, everyone has the face he deserves.” The same is true of societies and their universities. By the time a society reaches its prime, it has the university it deserves. We have arrived there now in Canada, in the middle age of our regime, well past our youth but not quite to our dotage. What do we see when we look into the mirror of our universities? What image do we find there? Lots of smiling students, lots of talk of “impact” and “innovation,” more than one shovel going into the ground, a host of new community and industry partnerships to celebrate. But whose image is that really? Who created it and whom does it serve?

Administrators control the modern university. The faculty have “fallen,” to use Benjamin Ginsberg’s term. It’s an “all-administrative” institution now. Spending on administrators and administration exceeds spending on faculty, administrators out-number faculty by a long shot, and administrative salaries and benefit packages, particularly those of presidents and other senior managers, have skyrocketed over the last 10 years. Even more telling perhaps, students themselves increasingly resemble administrators more than professors in their ambitions and needs. Safety, comfort, security, quality services, first-class accommodations, guaranteed high grades, institutional brand, better job placements, the market value of the credential — these are the things one hears students demanding these days, not truth, justice, and intelligence. The traditional language of “professors” and “students” still exists, though “service provider” and “consumer” are making serious bids to replace them. The principles of collegial governance and joint decision-making are still on the books, but they are no longer what the institution is about or how it works.

The revolution is over and the administrators have won. But the persistence of traditional structures and language has led some to think that the fight over the institution is now just beginning. This is a mistake. As with most revolutions, open conflict occurs only after real power has already changed hands. In France, for instance, the bourgeoisie were able to seize control of the regime because in a sense they already had it. The same is true of the modern university. Administrators have been slowly taking control of the institution for decades. The recent proliferation of books, essays, and manifestoes critiquing this takeover creates the impression that the battle is now on. But that is an illusion, and most writers know it. All the voices of protest, many of them beautiful and insightful, all of them noble, are either cries of the vanquished or merely a dogged determination to take the losing case to court.

So what’s to do? Keep fighting and risk being canned? Admit the world has changed and join them? Concede defeat and quit?

These are all plausible responses, some uneasy mixture of which is likely what most of us use each day to survive. Personally, I’m less strident than the activists but more active than the pessimists. My own proposal is thus old-fashioned but also mildly seditious: I suggest we think about this change in the university in order to reach some understanding of what it means. Then we can act as we see fit, though without any illusions about consequences.

In order to do this I propose a test. A favorite trope among the administrative castes is accountability. People must be held accountable, they tell us, particularly professors. Well, let’s take them at their word and hold themaccountable. How have they done with the public trust since having assumed control of the university?

There is more than a little irony in this test. One of the most significant changes initiated in Canadian universities by the new administrative caste is precisely a reversal of traditional roles of accountability. In the traditional university, professors were “unaccountable.” The university was a sacred space where they were at liberty to pursue with students and colleagues their fields of inquiry without coercion or interference. This doesn’t mean they were free without qualification, of course. Professors were deeply accountable, but in a sense that went far beyond the reach, ambition, and perhaps even the interests of the administrative caste — they were accountable to discover and then to tell the truth, and to encourage their students to do the same. Assessing their abilities and accomplishments in this regard was a matter of judgment and so could not be quantified; it could be exercised only by those capable of it. A mechanism was therefore introduced to ensure this judgment was reached before the university committed to a faculty member permanently. After roughly 15 years of undergraduate and postgraduate study, and then a long period of careful professional observation and assessment, in most universities lasting five to six years, only those professors who proved themselves worthy were granted tenure and allowed to continue their teaching and research in pursuit of this beautiful goal

Administrators, on the other hand, were always held accountable precisely because their responsibilities were administrative in nature and therefore amenable to measurement and regular public audit. They were responsible to ensure the activities of students and professors were not interfered with and to manage the institution’s financial affairs. They were, in this sense, stewards of the sacred space, not its rulers.

In the contemporary university these roles have been reversed. Faculty members are the ones who are now accountable, but no longer to their peers and students and no longer regarding mastery of their subjects. Instead, they are accountable to administrators, who employ an increasingly wide array of instruments and staff to assess their productivity and measure their performance, all of which are now deemed eminently quantifiable. In place of judgment regarding the quality of their work we now have a variety of “outcomes” used as measures of worth. Student evaluations and enrollments (i.e., popularity), learning as determined by “rubrics,” quantity of publications, amount of research dollars, extent of social “impact” are the things that count now. In other words, only things you can quantify and none of which require judgment.

The administrators who protested so vociferously the lack of accountability of professors have now assumed the position themselves. Administrators are virtually untouchable today. Their value to the institution is assumed to be so great that it cannot be measured and cannot be subject to critical assessment. This explains in part their metastatic growth within the institution. University presidents having trouble “transitioning” to their new positions? Administrators having trouble administrating? No problem. What we need is a “Transition Committee” — that is to say, more administration — and for them all to be given ever more power in the governance of the institution.

Ask about virtually any problem in the university today and the solution proposed will inevitably be administrative. Why? Because we think administrators, not professors, guarantee the quality of the product and the achievement of institutional goals. But how is that possible in an academic environment in which knowledge and understanding are the true goals? Without putting too fine a point on it, it’s because they aren’t the true goals any longer. With the exception of certain key science and technology programs in which content proficiency is paramount, administrative efficiency and administrative mindedness are the true goals of the institution. Liberal arts and science programs are quietly being transmogrified through pressure from technology and technological modes of education so that their “content” is increasingly merely an occasion for the delivery of what the university truly desires — well-adjusted, administratively minded people to populate the administrative world we’ve created for them. The latent assumption in all this is that what is truly important is not what students know or how intelligent they are, but how well and how often they perform and how finely we measure it.

If you think I exaggerate, consider the deliverables universities are forever touting to students today: “collaboration,” “communication,” “critical analysis,” “impact.” All abstract nouns indicating things you can do or have, but not a word about what you know or who you are. No promise to teach you history or politics or biology or to make you wise or thoughtful or prudent. Just skills training to equip you to perform optimally in a competitive, innovative world.

Western capitalist societies have come into an inheritance in this respect. Friedrich Engels infamously remarked that in a truly communist state “the government of persons” would be replaced by the “administration of things.” The West has done the East one better and achieved its goal without the brutality that was the East’s undoing. We are now all happy, efficient, administrative objects producing and functioning within the Western technocratic social organism.

by Ron Srigley, LARB | Read more:
Image: uncredited via

Tending the Digital Commons: A Small Ethics Toward the Future

Facebook is unlikely to shut down tomorrow; nor is Twitter, or Instagram, or any other major social network. But they could. And it would be a good exercise to reflect on the fact that, should any or all of them disappear, no user would have any legal or practical recourse. I started thinking about this situation a few years ago when Tumblr—a platform devoted to a highly streamlined form of blogging, with an emphasis on easy reposting from other accounts—was bought by Yahoo. I was a heavy user of Tumblr at the time, having made thousands of posts, and given the propensity of large tech companies to buy smaller ones and then shut them down, I wondered what would become of my posts if Yahoo decided that Tumblr wasn’t worth the cost of maintaining it. I found that I was troubled by the possibility to a degree I hadn’t anticipated. It would be hyperbolic (not to say comical) to describe my Tumblr as a work of art, but I had put a lot of thought into what went on it, and sometimes I enjoyed looking through the sequence of posts, noticing how I had woven certain themes into that sequence, or feeling pleasure at having found interesting and unusual images. I felt a surge of proprietary affection—and anxiety.

Many personal computers have installed on them a small command-line tool called wget, which allows you to download webpages, or even whole websites, to your machine. I immediately downloaded the whole of my Tumblr to keep it safe—although if Tumblr did end up being shut down, I wasn’t sure how I would get all those posts back online. But that was a problem I could reserve for another day. In the meantime, I decided that I needed to talk with my students.

I was teaching a course at the time on reading, writing, and research in digital environments, so the question of who owns what we typically think of as “our” social media presence was a natural one. Yet I discovered that these students, all of whom were already interested in and fairly knowledgeable about computing, had not considered this peculiar situation—and were generally reluctant to: After all, what were the alternatives? Social media are about connecting with people, one of them commented, which means that you have to go where the people are. So, I replied, if that means that you have to give your personal data to tech companies that make money from it, that’s what you do? My students nodded, and shrugged. And how could I blame them? They thought as I had thought until about forty-eight hours earlier; and they acted as I continued to act, although we were all to various degrees uneasy about our actions.

In the years since I became fully aware of the vulnerability of what the Internet likes to call my “content,” I have made some changes in how I live online. But I have also become increasingly convinced that this vulnerability raises wide-ranging questions that ought to be of general concern. Those of us who live much of our lives online are not faced here simply with matters of intellectual property; we need to confront significant choices about the world we will hand down to those who come after us. The complexities of social media ought to prompt deep reflection on what we all owe to the future, and how we might discharge this debt. (...)

Learning to Live Outside the Walls

The first answers to these questions are quite concrete. This is not a case in which a social problem can profitably be addressed by encouraging people to change their way of thinking—although as a cultural critic I naturally default to that mode of suasion. It goes against my nature to say simply that certain specific changes in practice are required. But this is what I must say. We need to revivify the open Web and teach others—especially those who have never known the open Web—to learn to live extramurally: outside the walls.

What do I mean by “the open Web”? I mean the World Wide Web as created by Tim Berners-Lee and extended by later coders. The open Web is effectively a set of protocols that allows the creating, sharing, and experiencing of text, sounds, and images on any computer that is connected to the Internet and has installed on it a browser that can interpret information encoded in conformity with these protocols.

In their simplicity, those protocols are relentlessly generative, producing a heterogeneous mass of material for which the most common descriptor is simply “content.” It took a while for that state of affairs to come about, especially since early Internet service providers like CompuServe and AOL tried to offer proprietary content that couldn’t be found elsewhere, after the model of newspapers or magazines. This model might have worked for a longer period if the Web had been a place of consumption only, but it was also a place of creation, and people wanted what they created to be experienced by the greatest number of people possible. (As advertising made its way onto the Web, this was true of businesses as well as individuals.) And so the open Web, the digital commons, triumphed over those first attempts to keep content enclosed.

In the relatively early years of the Web, the mass of content was small enough that a group of people at Yahoo could organize it by category, in something like a digital version of the map of human knowledge created by the French Encyclopedists. But soon this arrangement became unwieldy, and seekers grew frustrated with clicking their way down into submenus only to have to click back up again when they couldn’t find what they wanted and plunge into a different set of submenus. Moreover, as the Web became amenable to more varied kinds of “content,” the tasks of encoding, unloading, and displaying one’s stuff became more technically challenging; not all web browsers were equally adept at rendering and displaying all the media formats and types. It was therefore inevitable that companies would arise to help manage the complexities.

Thus the rise of Google, with its brilliantly simple model of keyword searching as the most efficient replacement for navigating through tree-like structures of data—and thus, ultimately, the rise of services that promised to do the technical heavy lifting for their users, display their content in a clear and consistent way, and connect them with other people with similar interests, experiences, or histories. Some of these people have become the overlords of social media.

It is common to refer to universally popular social media sites like Facebook, Instagram, Snapchat, and Pinterest as “walled gardens.” But they are not gardens; they are walled industrial sites, within which users, for no financial compensation, produce data which the owners of the factories sift and then sell. Some of these factories (Twitter, Tumblr, and more recently Instagram) have transparent walls, by which I mean that you need an account to post anything but can view what has been posted on the open Web; others (Facebook, Snapchat) keep their walls mostly or wholly opaque. But they all exercise the same disciplinary control over those who create or share content on their domain.

I say there is no financial compensation for users, but many users feel themselves amply compensated by the aforementioned provisions: ease of use, connection with others, and so on. But such users should realize that everything they find desirable and beneficial about those sites could disappear tomorrow and leave them with absolutely no recourse, no one to whom to protest, no claim that they could make to anyone. When George Orwell was a scholarship boy at an English prep school, his headmaster, when angry, would tell him, “You are living on my bounty.” If you’re on Facebook, you are living on Mark Zuckerberg’s bounty.

This is of course a choice you are free to make. The problem comes when, by living in conditions of such dependence, you forget that there’s any other way to live—and therefore cannot teach another way to those who come after you. Your present-day social-media ecology eclipses the future social-media ecology of others. What if they don’t want their social lives to be bought and sold? What if they don’t want to live on the bounty of the factory owners of Silicon Valley? It would be good if we bequeathed to them another option, the possibility of living outside the walls the factory owners have built—whether for our safety or to imprison us, who can say? The open Web happens outside those walls.

A Domain of One’s Own

For the last few years we’ve been hearing a good many people (most of them computer programmers) say that every child should learn to code. As I write these words, I learn that Tim Cook, the CEO of Apple, has echoed that counsel. Learning to code is a nice thing, I suppose, but should be far, far down on our list of priorities for the young. Coding is a problem-solving skill, and few of the problems that beset young people today, or are likely to in the future, can be solved by writing scripts or programs for computers to execute. I suggest a less ambitious enterprise with broader applications, and I’ll begin by listing the primary elements of that enterprise. I think every young person who regularly uses a computer should learn the following:

how to choose a domain name
how to buy a domain
how to choose a good domain name provider
how to choose a good website-hosting service
how to find a good free text editor
how to transfer files to and from a server
how to write basic HTML, including links to CSS (Cascading Style Sheet) files
how to find free CSS templates
how to fiddle around in those templates to adjust them to your satisfaction
how to do basic photograph editing
how to cite your sources and link to the originals
how to use social media to share what you’ve created on your own turf rather than create within a walled factory

One could add considerably to this list, but these, I believe, are the rudimentary skills that should be possessed by anyone who wants to be a responsible citizen of the open Web—and not to be confined to living on the bounty of the digital headmasters.

There is, of course, no way to be completely independent online, either as an individual or a community: This is life on the grid, not off. Which means that anyone who learns the skills listed above—and even those who go well beyond such skills and host their websites on their own servers, while producing electricity on their own wind farms—will nevertheless need an Internet service provider. I am not speaking here of complete digital independence, but, rather, independence from the power of the walled factories and their owners.

A person who possesses and uses the skills on my list will still be dependent on organizations like ICANN (Internet Corporation for Assigned Names and Numbers) and its subsidiary IANA (Internet Assigned Numbers Authority), and the W3C (World Wide Web Consortium). But these are nonprofit organizations, and are moving toward less entanglement with government. For instance, IANA worked for eighteen years under contract with the National Telecommunications and Information Administration, a bureau of the US Department of Commerce, but that contract expired in October 2016, and IANA and ICANN are now run completely by an international community of volunteers. Similarly, the W3C, which controls the protocols by which computers on the Web communicate with one another and display information to users, is governed by a heterogenous group that included, at the time of writing, not only universities, libraries, and archives from around the world but also Fortune 500 companies—a few of them being among those walled factories I have been warning against.

In essence, the open Web, while not free from governmental and commercial pressures, is about as free from such pressures as a major component of modern capitalist society can be. And indeed it is this decentralized organizational model, coupled with heavy reliance on volunteer labor, that invites the model of stewardship I commended earlier in this essay. No one owns the Internet or the World Wide Web, and barring the rise of an industrial mega-power like the Buy-n-Large Corporation of Pixar’s 2008 movie WALL•E, no one will. Indeed, the healthy independence of the Internet and the Web is among the strongest bulwarks against the rise of a Buy-n-Large or the gigantic transnational corporations that play such a major role in the futures imagined by Kim Stanley Robinson, especially in his Hugo Award–winning Mars trilogy.

Some of the people most dedicated to the maintenance and development of the open Web also produce open-source software that makes it possible to acquire the skills I listed above. In this category we may find nonprofit organizations such as Mozilla, maker of the Firefox web browser, as well as for-profit organizations that make and release free and open-source software—for instance, Automattic, the maker of the popular blogging platform WordPress, and Github, whose employees, along with many volunteers, have created the excellent Atom text editor. One could achieve much of the independence I have recommended by using software available from those three sources alone.

I am, in short, endorsing here the goals of the Domain of One’s Own movement. As Audrey Watters, one of its most eloquent advocates, has observed,

By providing students and staff with a domain, I think we can start to address this [effort to achieve digital independence]. Students and staff can start to see how digital technologies work—those that underpin the Web and elsewhere. They can think about how these technologies shape the formation of their understanding of the world—how knowledge is formed and shared; how identity is formed and expressed. They can engage with that original purpose of the Web—sharing information and collaborating on knowledge-building endeavors—by doing meaningful work online, in the public, with other scholars. [The goal is that] they have a space of their own online, along with the support and the tools to think about what that can look like.

Watters adds that such a program of education goes far beyond the mere acquisition of skills: “I think its potential is far more radical than that. This isn’t about making sure literature students ‘learn to code’ or history students ‘learn to code’ or medical faculty ‘learn to code’ or chemistry faculty ‘learn to code.’” Instead, the real possibilities emerge from “recognizing that the World Wide Web is a site for scholarly activity. It’s about recognizing that students are scholars.” Scholars, I might add, who, through their scholarship, can be accountable to the future—who, to borrow a phrase from W.H. Auden, can “assume responsibility for time.” (...)

The Difference between Projecting and Promising

Training young people how to live and work extramurally—to limit their exposure to governance via terms of service and APIs—is a vital hedge against this future. We cannot prevent anyone from trusting his or her whole life to Facebook or Snapchat; but to know that there are alternatives, and alternatives over which we have a good deal of control, is powerful in itself. And this knowledge has the further effect of reminding us that code—including the algorithmic code that so often determines what we see online—is written by human beings for purposes that may be at odds with our own. The code that constitutes Facebook is written and constantly tweaked in order to increase the flow to Facebook of sellable data; if that code also promotes “global community,” so much the better, but that will never be its reason for being.

To teach children how to own their own domains and make their own websites might seem a small thing. In many cases it will be a small thing. Yet it serves as a reminder that the online world does not merely exist, but is built, and built to meet the desires of certain very powerful people—but could be built differently. Given the importance of online experience to most of us, and the great likelihood that its importance will only increase over time, training young people to do some building themselves can be a powerful counterspell to the one pronounced by Zuckerberg, who says that the walls of our social world are crumbling and only Facebook’s walls can replace them. We can live elsewhere and otherwise, and children should know that, and know it as early as possible. This is one of the ways in which we can exercise “the imperative of responsibility,” and to represent the future in the present.

by Alan Jacobs, The Hedgehog |  Read more:

Image: HedgehogReview.com
[ed. This is why I got off Facebook. Why share stuff I was interested in through an intermediary? Of course, Google could kill me off at anytime as well, and probably will at some point (being on Blogger), so enjoy Duck Soup while you can (or until I figure out how to transfer everything over to WordPress).]