Archive for April 1st, 2017
Jason Koebler writes in Motherboard:
There’s a common refrain I see online anytime I write about the “right to repair” movement or licensing agreements that screw over customers: “Why not just vote with your wallet?”
The argument boils down to this: If a corporation is using business practices that are unfair to its customers, its customers should simply spend their money elsewhere. If you don’t like that you can’t repair your John Deere tractor, or your iPhone, or your Playstation 4, just buy from another company. Eventually, big companies will have to treat their customers better or they will lose money.
It’s an argument I’ve heard often enough that I started researching whether voting with your wallet is actually a plausible strategy. What I found is that even the staunchest free market supporters don’t believe that an “informed minority” can change corporate behavior that screws over consumers. In fact, in 1996, Ted Cruz (yes, that Ted Cruz), cowrote one of the most important and forceful papers arguing that legal intervention (regulation, maybe!) is necessary to prevent large corporations from taking advantage of the masses.
Published in the Hastings Law Journal while Cruz was clerking for Supreme Court Justice William Rehnquist, the 43-page tour-de-force explains that there is an inherent information asymmetry between companies and their consumers. Companies create contract terms that they understand because they wrote them, and consumers cannot be reasonably expected to understand the legalese. More importantly, the ones who do understand the legalese of contracts are not powerful enough to effect change.
“The [informed minority argument] defenders argue that if a sufficient number of consumers read and understand latent terms and thereby become informed, then they will demand efficient terms, and the producers will in turn provide those terms to all consumers,” Cruz wrote. “While having some intuitive appeal and, indeed, some theoretical validity, this argument carries little practical force … the informed minority argument is a poor tool for the defenders of the market.”
“Inefficient contracts”—ones in which corporations have an advantage—are often used by companies to create a parallel legal system. Cruz writes mainly about warranty terms, but today’s legal scholars say Cruz’s argument can be applied to many corporate activities today.
The End User License Agreements that come with essentially every piece of software; the terms of your broadband contract, which often includes provisions to allow for the sale of your data to advertisers; companies that use “Authorized Service Provider” programs to monopolize the repair market; the fine print in your credit card agreements or bank agreements.
The crux of Cruz’s argument is that, even though a company may lose a few of the “informed” consumers (“marginal consumers,” in econ speak), the money a company loses from those consumers will never be more than it makes from screwing over the masses. . .
And that is why we have a government: to protect the public (advancing the general welfare, in keeping with the mission state of the U.S. government: the Preamble to the Constitution.
Michael Byrne writes at Motherboard:
Here’s a fun thing: Wealth inequality is just physics. For that matter, so are biology, geophysics, technology, and social organization. The whole dang universe, really. It can all be reduced to the properties of flow, or the tendency of a flowing system to try and flow more easily. Economics is just a river with money instead of water. See?
Probably not, but hang on.
This is an idea put forth by a couple of engineers at Federal University of Paraná in Brazil and Duke University. They explain it all in a paper published this week in the Journal of Applied Physics. It’s kind of goofy.
The idea has to do with what’s known as the Constructal Law. It was first formulated in 1996 as such: “For a finite-size system to persist in time (to live), it must evolve in such a way that it provides easier access to the imposed currents that flow through it.”
It’s a vague and disputed theory. In general, it imagines that every system hosts some kind of internal flow because systems all tend to evolve in time in one direction. Nature, like the whole thing, always seeks to make everything flow more easily through the processes of evolution and “design generation.” For example, the tributaries of a river converge so as to enhance flow. Forks of lightning merge to make electrical current move better between clouds and the Earth. The theory is supposed to explain the ubiquity of branching structures in nature.
The Constructal Law was devised by Duke professor Adrian Bejan, who is also behind the new paper.
“‘Inequality’ is the oldest and most divisive observation about us, as members of society,” said paper declares. “There is no topic more burning than this today, and this is why the theoretical step advanced in this paper is timely. This paper uses physics to predict the natural occurrence of hierarchical movement and wealth on earth.”
The movement in the global system of economics is wealth, and so design emerges facilitating this movement. Wealth flows together because this is a better way of moving it, of enhancing its flow. “The nonuniform distribution of wealth becomes more accentuated as the economy becomes more developed,” Bejan writes, “i.e., as its flow architecture becomes more complex for the purpose of covering smaller and smaller interstices of the overall (fixed) territory.”
There’s not much more to it. The paper is probably the breeziest I’ve read in a physics journal in a really long time. It’s also intensely self-important, making repeated pronouncements about a grand new unification of economics and physics. It’s not a great look, to be honest.
So, is wealth inequality just physics being physics? . . .
Andrew Kent writes in Lawfare:
Lawfare readers are surely aware that on Thursday, the lawyer for former national security adviser Michael T. Flynn went public with a statement seeking immunity from prosecution in exchange for his testimony to either of the congressional intelligence committees investigating Russia-Trump matters. Flynn’s attorney offered a teaser: “Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit.” The Wall Street Journal reports that Flynn’s lawyer also approached the FBI with the same offer.
A common view among the media and pundits seems to be that Flynn’s move is a sign of weakness—that he is legitimately scared of prosecution and looking for protection. But that may not be the best read of the publicly-known facts.
Alex Whiting at Just Security has outlined a procedural reason to think that Flynn is not making a serious overture to criminal enforcement authorities: his lawyer is not behaving in the way that an experienced defense attorney would if truly intent on a deal with prosecutors and the FBI. In that case, seeking a private proffer session, not making a splashy public announcement, would be the right way to proceed.
Flynn and his lawyers may actually think that he has a rather low chance of being successfully prosecuted. There are a number of reasons why that could be so. And if that is right, Flynn’s actions might be best understood as a smart play by someone seeking a clear win, rather than a desperate attempt to minimize losses.
Who Would Indict Flynn, and for What?
While the FBI is headed by someone (Director James Comey) who seems genuinely committed to getting to the bottom of the Russia-Trump mess, the FBI can only recommend criminal charges. Prosecutors at the Department of Justice are the ones who decide. But while Attorney General Jeff Sessions—like Flynn, a member of Donald Trump’s inner circle during the campaign—has recused himself from “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” that arguably does not cover the crimes with which Flynn might be charged.
Based on what is now publicly known, Flynn seems to have the most criminal exposure about three matters. First, he might be charged under the false statements statute with lying to the FBI about his December communications with Sergey Kislyak, Russia’s ambassador to the United States. But that communication occurred over a month after the campaign ended. (And in any event, FBI sources have told the press that charges are unlikely, seemingly because of Flynn’s ability to muddy the waters by parsing what he was asked and what he said.) Second, Flynn may have some criminal exposure under the Foreign Agents Registration Act for his dealings last year with the Turkish government. But that occurred in his capacity as a private consultant, working through his company Flynn Intel Group. Of course, clients likely sought him out because of his close ties to the Republican nominee for president, but that does not mean the actions are campaign-related. Third, some have raised the issue of whether Flynn truthfully disclosed on his SF86 security clearance form payments he received from Russian-government linked entities during 2015. Lies on this form can be prosecuted, again under the false statements statute. But this does not seem to be clearly campaign-related; for instance, Flynn was apparently paid for giving a speech at a gala dinner in Russia.
So Jeff Sessions might well be the ultimate decisionmaker on whether Michael Flynn is criminally charged. If he is, I would bet good money that Flynn gets a pass—all the more so because FARA violations and problems on security clearance forms are rarely pursued criminally. That is, Sessions would have a plausible-sounding story to tell that criminal prosecution is not the correct resolution.
If Sessions is not the decisionmaker—either because he broadens his recusal or because Flynn’s criminal exposure concerns campaign-related matters within the scope of the existing recusal—the Deputy Attorney General will be in charge. Assuming he is confirmed by the Senate, that will be Rod Rosenstein, a respected career prosecutor who is currently United States Attorney for the District of Maryland. Rosenstein was put in that position by President George W. Bush, who also tried to seat him on the U.S. Court of Appeals for the Fourth Circuit. Because this White House seems to prize loyalty to President Trump above all else—and has blocked senior appointments sought by cabinet members like Secretary of State Rex Tillerson when the nominee was thought insufficiently Trumpist—Rosenstein will have to affirmatively prove that he is willing to aggressively and independently go after a key Trump ally.
The Pardon Power
Even if DOJ indicted Flynn, or was seen to be moving in that direction, Flynn could appeal to his former boss, President Trump, for a pardon. The Supreme Court has confirmed that a pardon issued under the president’s Article II constitutional power can be preemptive—coming before charges are filed. And a pardon can also be a blanket one—covering any possible crimes that may have been committed. President Gerald Ford famously issued a pre-prosecution blanket pardon to Richard Nixon.
DOJ has an office that, in the ordinary course, processes and advises the president on pardon applications. While this office has its own rules and standards, a president may choose to disregard all of that. Trump’s doing so in order to protect Flynn (and hence himself and other members of his orbit) would of course produce a firestorm of criticism and cries of cover up. But if there is any president who seems willing to ignore considerations of probity and propriety, it’s Trump. (See Ben Wittes and Quinta Jurecic on the president’s character.) Trump is already on record, via Twitter, supporting Flynn by calling the investigations of him a “witch hunt.” Trump also publicly praised Flynn as “a wonderful man” who had been treated “very, very unfairly”—after having fired him.
The White House could even claim a sort of precedent for a Flynn pardon. President George H.W. Bush pardoned six people implicated in the Iran-Contra scandal. Bush had been Vice President during the events in question, was a potential witness in criminal cases against his former colleagues, and was believed by the independent counsel investigating the matter, Lawrence Walsh, to have been intentionally obstructionist. Walsh was furious about the pardon and accused Bush of perpetrating a cover-up. In response, Bush said the independent counsel’s prosecutions were merely the “criminalization of policy differences.”
Immunity from Congress
If it isn’t particularly likely—again . ..
Maria Godoy reports at NPR:
They come from places like Vietnam, China, Mexico and Guatemala, lured by promises of better-paying jobs and legal immigration. Instead, they’re smuggled into the U.S., forced to work around the clock as bussers, wait staff and cooks, and housed in cramped living quarters. For this, they must pay exorbitant fees that become an insurmountable debt, even as their pay is often withheld, stolen or unfairly docked.
In restaurants, bars and food trucks across America, many workers are entrapped in a form of modern slavery. That’s according to a new report by Polaris, an organization that fights human trafficking and helps survivors.
In the report the group offers a detailed portrait of human trafficking as it occurs in the U.S., breaking it down into 25 distinct business models, from nail salons to hotel work and domestic service.
“Because human trafficking is so diverse … you can’t fight it all at once and there are no single, silver bullet solutions. You have to … fight it type by type,” Bradley Myles, CEO of Polaris, told reporters on a press call. “We see this report as a major breakthrough in the field.”
He called the report the largest data set on human trafficking in the U.S. ever compiled and publicly analyzed. The Polaris team analyzed 32,208 reports of human trafficking, and 10,085 reports of labor exploitation processed through its hotlines for victims between 2007 and 2016. The goal: to identify profiles of traffickers and their victims — and the methods they use to recruit and control them — across industries, in order to better thwart them.
Janet Drake, a senior assistant attorney general in Colorado who has prosecuted human trafficking cases, called the new report “a game changer.”
Only 16 percent of cases identified through the hotline calls involved labor trafficking, Drake says, “but now we realize through the work we’ve done that labor trafficking is probably at least as prevalent, if not more so, than sex trafficking. And that’s a real problem we’ve had as prosecutors – being able to identify and disrupt these labor trafficking networks.”
Three of the 25 categories the group tracked involve the food industry: restaurants, bars and agriculture.
From dairy farms to orange orchards, nearly 2,000 of the cases involved the agriculture industry. Workers — mostly men from Mexico and Central America — often were enticed with assurances of an hourly rate, but once they showed up in the U.S., they were paid on a much lower piece-rate basis. Many reported being denied medical care and protective gear to do their job, forced to live in squalid conditions, and threatened with deportation.
Of the more than 1,700 restaurant industry cases, the vast majority of victims involved immigrants, recruited from Mexico, Central America and East and Southeast Asia. Nearly one in five was a minor. They included cooks, wait staff and bussers at restaurants, food trucks, buffets and taquerias.
Traffickers often take advantage “of language barriers between exploited workers and patrons — and in some cases other workers at the same restaurant who are not being abused — to help avoid detection,” the report says.
Fascinating long read in the Guardian by George Saunders:
Many years ago, during a visit to Washington DC, my wife’s cousin pointed out to us a crypt on a hill and mentioned that, in 1862, while Abraham Lincoln was president, his beloved son, Willie, died, and was temporarily interred in that crypt, and that the grief-stricken Lincoln had, according to the newspapers of the day, entered the crypt “on several occasions” to hold the boy’s body. An image spontaneously leapt into my mind – a melding of the Lincoln Memorial and the Pietà. I carried that image around for the next 20-odd years, too scared to try something that seemed so profound, and then finally, in 2012, noticing that I wasn’t getting any younger, not wanting to be the guy whose own gravestone would read “Afraid to Embark on Scary Artistic Project He Desperately Longed to Attempt”, decided to take a run at it, in exploratory fashion, no commitments. My novel, Lincoln in the Bardo, is the result of that attempt, and now I find myself in the familiar writerly fix of trying to talk about that process as if I were in control of it.
We often discuss art this way: the artist had something he “wanted to express”, and then he just, you know … expressed it. We buy into some version of the intentional fallacy: the notion that art is about having a clear-cut intention and then confidently executing same.
The actual process, in my experience, is much more mysterious and more of a pain in the ass to discuss truthfully.
A guy (Stan) constructs a model railroad town in his basement. Stan acquires a small hobo, places him under a plastic railroad bridge, near that fake campfire, then notices he’s arranged his hobo into a certain posture – the hobo seems to be gazing back at the town. Why is he looking over there? At that little blue Victorian house? Stan notes a plastic woman in the window, then turns her a little, so she’s gazing out. Over at the railroad bridge, actually. Huh. Suddenly, Stan has made a love story. Oh, why can’t they be together? If only “Little Jack” would just go home. To his wife. To Linda.
What did Stan (the artist) just do? Well, first, surveying his little domain, he noticed which way his hobo was looking. Then he chose to change that little universe, by turning the plastic woman. Now, Stan didn’t exactly decide to turn her. It might be more accurate to say that it occurred to him to do so; in a split-second, with no accompanying language, except maybe a very quiet internal “Yes.”
He just liked it better that way, for reasons he couldn’t articulate, and before he’d had the time or inclination to articulate them.
An artist works outside the realm of strict logic. Simply knowing one’s intention and then executing it does not make good art. Artists know this. According to Donald Barthelme: “The writer is that person who, embarking upon her task, does not know what to do.” Gerald Stern put it this way: “If you start out to write a poem about two dogs fucking, and you write a poem about two dogs fucking – then you wrote a poem about two dogs fucking.” Einstein, always the smarty-pants, outdid them both: “No worthy problem is ever solved in the plane of its original conception.”
How, then, to proceed? My method is: I imagine a meter mounted in my forehead, with “P” on this side (“Positive”) and “N” on this side (“Negative”). I try to read what I’ve written uninflectedly, the way a first-time reader might (“without hope and without despair”). Where’s the needle? Accept the result without whining. Then edit, so as to move the needle into the “P” zone. Enact a repetitive, obsessive, iterative application of preference: watch the needle, adjust the prose, watch the needle, adjust the prose (rinse, lather, repeat), through (sometimes) hundreds of drafts. Like a cruise ship slowly turning, the story will start to alter course via those thousands of incremental adjustments.
The artist, in this model, is like the optometrist, always asking: Is it better like this? Or like this?
The interesting thing, in my experience, is that the result of this laborious and slightly obsessive process is a story that is better than I am in “real life” – funnier, kinder, less full of crap, more empathetic, with a clearer sense of virtue, both wiser and more entertaining.
And what a pleasure that is; to be, on the page, less of a dope than usual.
Revising by the method described is a form of increasing the ambient intelligence of a piece of writing. This, in turn, communicates a sense of respect for your reader. As text is revised, it becomes more specific and embodied in the particular. It becomes more sane. It becomes less hyperbolic, sentimental, and misleading. It loses its ability to create a propagandistic fog. Falsehoods get squeezed out of it, lazy assertions stand up, naked and blushing, and rush out of the room.
Is any of this relevant to our current political moment?
When I write, “Bob was an asshole,” and then, feeling this perhaps somewhat lacking in specificity, revise it to read, “Bob snapped impatiently at the barista,” then ask myself, seeking yet more specificity, why Bob might have done that, and revise to, “Bob snapped impatiently at the young barista, who reminded him of his dead wife,” and then pause and add, “who he missed so much, especially now, at Christmas,” – I didn’t make that series of changes because I wanted the story to be more compassionate. I did it because I wanted it to be less lame.
But it is more compassionate. Bob has gone from “pure asshole” to “grieving widower, so overcome with grief that he has behaved ungraciously to a young person, to whom, normally, he would have been nice”. Bob has changed. He started out a cartoon, on which we could heap scorn, but now he is closer to “me, on a different day”.
How was this done? Via pursuit of specificity. I turned my attention to Bob and, under the pressure of trying not to suck, my prose moved in the direction of specificity, and in the process my gaze became more loving toward him (ie, more gentle, nuanced, complex), and you, dear reader, witnessing my gaze become more loving, might have found your own gaze becoming slightly more loving, and together (the two of us, assisted by that imaginary grouch) reminded ourselves that it is possible for one’s gaze to become more loving.
Or we could just stick with “Bob was an asshole,” and post it, and wait for the “likes”, and for the pro-Bob forces to rally, and the anti-barista trolls to anonymously weigh in – but, meanwhile, there’s poor Bob, grieving and misunderstood, and there’s our poor abused barista, feeling crappy and not exactly knowing why, incrementally more convinced that the world is irrationally cruel.
What does an artist do, mostly? She tweaks that which she’s already done. There are those moments when we sit before a blank page, but mostly we’re adjusting that which is already there. The writer revises, the painter touches up, the director edits, the musician overdubs. I write, “Jane came into the room and sat down on the blue couch,” read that, wince, cross out “came into the room” and “down” and “blue” (Why does she have to come into the room? Can someone sit UP on a couch? Why do we care if it’s blue?) and the sentence becomes “Jane sat on the couch – ” and suddenly, it’s better (Hemingwayesque, even!), although … why is it meaningful for Jane to sit on a couch? Do we really need that? And soon we have arrived, simply, at “Jane”, which at least doesn’t suck, and has the virtue of brevity.
But why did I make those changes? On what basis?
On the basis that,
Simon Segal has an interesting post at CuriousMindMagazine.com.
Trump and his staff are notable for their lack of experience in government, and thus they do not understand why financial disclosure is part of the game. Ariana Tobin and Derek Kravitz report in ProPublica:
In a remarkable Friday night news dump, the Trump administration made dozens of White House staffers’ financial disclosure forms available. But they did it with an extra dose of opacity.
These are important disclosures from the people who have the president’s ear and shape national policy. They lay out all sorts of details, including information on ownership of stocks, real estate and companies, and make possible conflicts of interest public.
But the White House required a separate request for each staffer’s disclosure. And they didn’t give the names of the staffers, leaving us to guess who had filed disclosures, a kind of Transparency Bingo.
Since the White House wasn’t going to post the documents publicly, we did.
We teamed up with The New York Times and The Associated Press, requested docs for every staffer we know and put them in this public Google Drive folder.
We’re continuing to look through them. And we want your help: If you see anything that merits a closer look, comment on the thread below or fill out our Google Form.
Among the things we’ve learned already:
Steve Bannon, President Trump’s hand-picked chief strategist, earned more than $500,000 last year through businesses connected to Republican donors Robert Mercer and his daughter, Rebekah. The companies include the conservative website Breitbart News Network; the data-crunching firm Cambridge Analytica; the conservative nonprofit Government Accountability Institute; and the entertainment production company Glittering Steel. (Per an agreement with White House ethics attorneys, Bannon is selling his stakes in Cambridge Analytica and Glittering Steel. He made somewhere between $1.3 million and $2.3 million last year, according to the filings.)
Jared Kushner, the president’s son-in-law and a White House senior adviser, resigned his positions in 266 different business entities in order to comply with federal ethics rules, White House officials said Friday. He and his wife Ivanka’s financial disclosure shows the scale of their wealth, largely through the family-run Kushner Companies: real estate and investments worth as much as $741 million.
And Kushner is holding onto more than 100 real-estate assets, including a Trump-branded rental building in Jersey City, New Jersey, which was financed with millions from wealthy Chinese investors through a visa program.
As part of Kushner’s financial disclosure, Ivanka Trump, who recently took an official post in the White House, had to disclose her assets. Ivanka Trump’s branded companies, . . .