On Seeking Deliverance By Special Investigation

The Republic turns its lonely eyes to its hero, Bob Mueller, again. Thanks to the latest developments in the Paul Manafort and Michael Cohen cases, a new rash of analytical thinkpieces is upon us, all informing us in breathless tones about how the Mueller investigation is now moving into high gear, of how much legal jeopardy Trump could be facing, of how ‘impeachment is again on the table if Trump issues pardons’ and so on.

Speculation is permissible when it comes to our national politics; indeed, with our dreaded ‘twenty-four hour news cycles’ and our always-on, always-working internet news sites, all dependent for advertising revenue driven by the proverbial ‘clicks’, such speculation is indispensable: how else can time-slots on news channels be occupied, how else can viewers be driven back, again and again, to check on ‘the latest developments on Trump’s legal troubles’?

Unfortunately, the real legal trouble at hand is for the republic. Its legal and political institutions do not work. It has handed over control of its politics to a Federal prosecutor’s investigation, trusting him to set things right; it is afflicted by historical amnesia, for it seems not to remember that the law in this nation has never adequately curtailed the powers of the rich and powerful and famous, that its most heavy-handed dispensations are reserved for the relatively powerless. The president can issue pardons for all and any federal crimes, and his track record thus far–Joe Arpaio, Dinesh D’Souza–suggests he will do it again and again to save those who might be tempted to rat out on him. And again. For who can stop him? Not the threat of impeachment, for that will be stalled by his mates in the Senate. Not any legal threat to the power of the President and the Executive Branch by subpoena or actual indictment; we can be sure that if that constitutional question ends up in the Supreme Court, we will return with a 5-4 verdict handed down by a handpicked bench. When the smoke clears, we will find the Trump family standing, protected by the legal advice tendered to the Executive Branch by the Office of Legal Counsel, by a phalanx of expensive lawyers. You might hold out the fond hope that Mueller will drive the Trump businesses bankrupt, that he will temper the carpetbagging tendencies of the Trump offspring; but again, here the history of actual persecution of corporate offenders should calm us down all over again.

The lesson here, as it has been for a while, is to step back from the notion of the law and the legal system doing the business of politics. Trump will not be defeated by the rule of law; neither will the real culprits in all of this, the Republican Party. They will only be beaten by a coherent political platform, delivered clearly, loudly, and repeatedly to the folks that really matter: the electorate. The rest of this ludicrous sideshow is an employment scheme for overpaid lawyers and legal commentators.

Copyright Reformers Do Not Advocate Plagiarism

If you are one of those folks who responds to any debate in the domain of copyright reform with one of the following responses (or some variant thereof), please cease and desist. You are revealing yourself to be a functional illiterate.

  1. Oh, so according to you, anyone should be able to take something written by an author and just rip it off, right? [I’m presuming ‘rip it off’ means ‘use without attribution.’]
  2. I should be able to take something you’ve written, change your name to mine and just sell it, right?

No. You may not. You would be a plagiarizer then. Folks advocating reforms of copyright laws–typically shorter copyright terms, more lenient understandings of the doctrine of ‘fair use‘ mainly–have never advocated plagiarism. They still don’t.

Copyright reformers do not advocate that copyright protections should not exist. They do argue, however, that these protections are sometimes extended to material that should not be copyrighted–for example the baseball statistics that are put into a particular format by an author should remain uncopyrighted while their new tabular format certainly should be; they also advocate that those terms of copyright should be limited–as originally envisaged in the US Constitution–so that the copyrighted material can serve as ‘raw material’ for other creators to build on, to modify. They also express concern that over-stringent application of copyright laws are sometimes problematic in the digital world in which we live today – one in which creative products can be more readily copied, modified, and distributed.

But they do not, ever, advocate that someone should be able to take someone else’s’ work and pass it off as their own.

This persistent misunderstanding of copyright reformers’ claims has two unsavory interpretations:

  1. Critics of copyright reformers are lazy and illiterate; they cannot read, and if they can, they cannot be bothered to read the actual claims made by copyright reformers.
  2. Critics of copyright reformers are intellectually dishonest, engaging in willful misreading in order to systematically misrepresent the reformers’ claims.

I pen this short screed today because this past Monday, my essay ‘End Intellectual Property,’ which argues that the term ‘intellectual property’ is a misleading piece of rhetorical excess and should be discarded in favor of the precise use of ‘copyrights’, ‘patents’ ‘trademarks’ and ‘trade secrets’ instead, appeared in Aeon Magazine, and almost immediately, many readers online made some version of the responses above. I’m left shaking my head. Especially as my essay included the following line:

And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.

‘Nuff said.

P.S: There are several other persistent misunderstandings–or willful misreadings– of copyright reformer’s claims making the rounds. As they have been for a while. Like vampires, they refuse to die. On those (‘so you think artists should not be paid for their work?’ and ‘how come your books are not made available for free?’), more anon.

Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

Wittgenstein’s Lion And Solaris

Kris Kelvin, Snow, Gibrarian, and Sartorius are all puzzled and perplexed; as other educated and intelligent residents of Station Solaris–a sophisticated scientific laboratory–have been before them. They are stumped and bewildered by their interactions with the planet Solaris, with the ocean that covers its surface, the one that plays host to mimoids and symmetriads and asymmetriads and vertebrids extensors and fungoids and other strange and wondrous physical forms, which seems to be able to conjure up, out of its own chosen raw materials, facsimiles of the human form–like Kelvin’s former, dearly beloved, and now sadly departed love–that are good enough to induce genuine confusion about their identity on the part of those who would interact with them.

Does the ocean live, is it conscious, does it have a body or a mind? Is it intelligent? Is it communicating with human beings? Does it speak a language? Does it possess knowledge of mathematics or computation? Does the surface of the ocean on Solaris engage in computations; is that what the changes in its physical form signify?Are these human forms, the ones that look like the ones we love, are they forms of communication on the part of the planet? Has it scanned our brains, discovered our obsessions and physically realized them in an attempt to establish contact with us? Has it performed a series of vivisections on our brains and psyches, treating us flippantly like objects for experimentation–the way we have treated physical materials and other species on this planet?

The planet is, of course, Wittgenstein’s lion. It has spoken and we do not understand it. All that the scientists on Station Solaris can bring to bear on their interactions with the planet is their knowledge of themselves and other human beings–and their interactions with each other; this knowledge–of their particular ‘forms of life’–forces them into a particular interpretive stance with respect to the planet, one whose prisoners they remain, and which does not afford a unique and determinative understanding of what the nature of the planet is, and or what it might be trying to say–if it is trying to say anything in the first place. The planet has its own ‘form of life‘ that regulates and determines the form and content of its interactions with the human beings engaged with it; there is little guarantee that this communication is set up to enhance, or even make possible, understanding on the part of its human interlocutors.

Kelvin and Snow and Sartorius and Gibarian have come to realize that these concepts they trade in–life, mind, consciousness, thought, persons, intelligence, brain, language–find their meaning with respect to a particular form of life and being–they do not transcend it. They do not allow for the determination of whether the planet, a ‘being’ perhaps radically similar or dissimilar to them, traffics in similar concepts, or anything like them. If they were to ascribe a ‘life’ or a ‘mind’ to Solaris, it would be an asterisked one–‘life as we know it’–and perhaps that’s all we can or should aspire to.

Mitchell Langbert, An Advocate For Sexual Assault, Desperately Needs Attention

Mitchell Langbert is a professor of Business at Brooklyn College. Here is what he has to say about the Kavanaugh hearings:

If someone did not commit sexual assault in high school, then he is not a member of the male sex. The Democrats have discovered that 15-year- olds play spin-the-bottle, and they have jumped on a series of supposed spin-the-bottle crimes during Kavanaugh’s minority, which they characterize as rape, although no one complained or reported any crime for 40 years.

The Democrats have become a party of tutu-wearing pansies, totalitarian sissies who lack virility, a sense of decency, or the masculine judgment that has characterized the greatest civilizations: classical Athens, republican Rome, 18th century Britain, and the 19th century United States. They use anonymity and defamation in their tireless search for coercive power.

The Kavanaugh hearing is a travesty, and if the Republicans are going to allow the sissy party to use this travesty to stop conservatism, then it is time found a new political party. In the future, having committed sexual assault in high school ought to be a prerequisite for all appointments, judicial and political. Those who did not play spin-the-bottle when they were 15 should not be in public life. [Addendum: this post has now been edited by Langbert; see notes below.]

Professor Langbert is unafraid to be a man, a real man, a very virile and masculine man. He’s not a pansy; he isn’t a sissy; he doesn’t wear tutus. (The mind boggles.) Negating the consequent of his opening sentence generates the conclusion that if someone is a member of the male sex, then they committed sexual assault in high school. At the very least, Langbert seems to be ‘fessing up to details of his own high school career. Make no mistake about it, Langbert is a misogynist piece of work. And he wants you to know about it. Loudly and publicly.

It is quite clear Langbert wants to be a free speech martyr, to be criticized for his rant above, and hopefully, to be formally disciplined by Brooklyn College administration; when asked for comment by a Brooklyn College student newspaper, he doubled down. For as long as I’ve known of him and his activities here at Brooklyn College, Langbert has been desperately hoping the right-wing assault troops of the new media will elevate his otherwise nondescript life and academic career to the headlines. Imagine: receiving a phone call from Fox, for the Hannity show, or perhaps from Ben Shapiro or Ann Coulter or Dinesh D’Souza or Jordan Peterson. Imagine: a chance to hold forth on national television about how a brave man who spoke the truth on campus was vilified by millennial snowflakes and attacked by liberal administrators! Maybe he could even score a book deal if he was lucky enough. How else would Langbert bring his, er, ‘writings’ and ‘thoughts’ to the attention of the American people? By advocating for sexual assault, that’s how.

PS: By commenting on Langbert’s idiotic blog post, I’m playing along with his game; that’s a drag, but it’s also a good idea to shine the light on this dark corner on campus.

PPS: In the last fifteen minutes, Langbert has edited his piece to now call it a work of satire. What a fucking coward. Stand by your original words. A screen shot of the original post can be found in the Excelsior article linked above. I had copied and pasted the entire text of the blog post; everything else that appears in the version now online is a late edit, a cowardly run for cover by an intellectual and moral midget.

A Pro-Bono Offer To Teach Brett Stephens Some Epistemology

This morning, I mailed the following letter to the New York Times Education section. I do not expect a reply.

Greetings,
I’m a professor of philosophy of Brooklyn College and I’m writing to offer to teach epistemology (the study of knowledge) to Brett Stephens, your Op-Ed columnist. His last three essays (‘This Revolution Too, Will Eat It’s Children‘, ‘This I Believe About Blasey vs. Kavanaugh,’ ‘Believability is the Road to National Ruin‘) have shown an alarming ignorance of some basic principles of epistemology–the kind that we introduce to our beginner undergraduate students in elementary introductions to philosophy or in our elective epistemology class. (The study of epistemology goes back all the way to Plato and a firm grounding in its fundamentals is essential for any student, not just philosophy majors.)

To wit,  Mr. Stephens does not understand the relationship between beliefs and action. He does not understand the difference between belief and knowledge. He does not understand the difference between different epistemic standards employed in differing contexts–as such, he does not understand the difference between legal standards of belief and knowledge, and how they pertain to legal decisions, and ‘normal’ or other standards of belief and knowledge and how they apply in different contexts. These are elementary distinctions and everyone, especially every adult and every responsible citizen of a democratic republic, should be aware of them. It is entirely possible that Mr. Stephens has never taken a class in philosophy or epistemology and perhaps he has never been introduced to the notion of ‘epistemic standards’ and how these might vary across different ‘epistemic contexts.’ But that is no reason for him to remain ignorant of them.

Which is where my pro-bono offer to teach Mr. Stephens some basic epistemology comes in. I also teach philosophy of law, and would be happy to introduce Mr. Stephens to some basic jurisprudential debates about the nature of belief formation in legal contexts and how even within legal domains, there can be differing epistemic standards that generate varying epistemic contexts.

I write in the spirit of offering to perform my civic duty. Mr. Stephens has a prominent and powerful pulpit from which he can address the American people, and he is, as I am, concerned about the state of the American Republic. I believe, as I’m sure he does, that his writing would be improved if he did not trade in the sorts of elementary confusions that are on display in his writing. Mr. Stephens indicates in his pieces the need to keep an open mind; I appreciate that spirit, and in keeping with it, would like to help educate Mr. Stephens.

I do not have contact information for Mr. Stephens and would appreciate it if you could please forward this email to him. I can be reached at my work email address above. I look forward to hearing from him, given his avowed commitment to open inquiry and fair thinking.

best,
Professor Samir Chopra
Department of Philosophy
Brooklyn College
2900 Bedford Avenue
Brooklyn, NY 11210

 

Twenty Seven Years On, Old White Misogynists Still Get To Send Liars To The Supreme Court

Twenty-seven years on, little has changed in America. Old white men still get to make liars into Supreme Court Justices. Indeed, things have worsened. Back in 1991, the Senate merely elevated a serial sexual harasser to the Supreme Court. Now, they get to send lying, rapey fratboys to the bench. I suppose that’s not so surprising when our President is also a ‘man’ who routinely sexually assaults women. And the US Senate continues to be packed with misogynists.

Brett Kavanaugh, who give ample evidence yesterday that he is a unhinged, vengeful, and demented Republican hack, also established yet again, by means of his constant evasions and his repeated obfuscations, that he was guilty of the charges Christine Blasey Ford‘s powerful testimony had laid against him. On nine separate occasions, he filibustered when asked if he would support a full FBI investigations into the ‘charges’ he was facing. For a man who was supposedly so upset that his good name had besmirched, who was ready to swear on God–though this must be reckoned our culture’s most useless oath-taking of all–that he was innocent, he was remarkably unenthusiastic about the prospects of an inquiry that would support his claims. He knows that once a full FBI investigation is launched, the likes of Mark Judge will not escape inquiry or subpoena; witnesses will be questioned closely; corroborative evidence will mount. And a far more comprehensive picture will emerge of the kind of man the Senate is sending to the Supreme Court.

Kavanaugh did precisely what one would expect a guilty liar to do. He knows that the political calculus favors him. He is backed by a serial sexual abuser and harasser and the Republicans in the Senate. Kavanaugh knows that once he is nominated the game is up; he will not face any threats to his lifetime tenure on the Supreme Court. The Democrats, were they to come to power in 2018 or 2020, in the House and Senate, will not pursue impeachment proceedings against him. They will be too busy engaged in a ‘healing’ process, in ‘moving on.’ All Kavanaugh had to do–and he did just that–is continue to lie, deny, obfuscate, evade, and of course, to show that he is a good little Trumpkin who has learned the right lessons from his master, be as offensive and deranged as possible. Most usefully, that would send a loud and clear signal to the folks on Fox that he belongs on the Supreme Court; they can be counted on to break out the pom-poms and assemble a cheering squad as quickly as possible.

What a contrast yesterday’s hearing provided: Ford was dignified, knowledgeable, and polite; she elevated the proceedings. Kavanaugh bragged, preened, yelled, interrupted, condescended, refused to answer questions, and ranted; he dragged the proceedings down into the basements of the many houses where he and drunken buddies assaulted women.

Stand by for photographs of Brett Kavanaugh, Donald Trump Jr., and Stephen Miller celebrating his confirmation with a few ‘skis’ at a DC watering hole. Our ‘republic’ has the leaders and judicial sages it deserves.