Prosecutors, and regulators more generally, like vague standards that are impossible to enforce consistently. It gives them a great deal of discretion in whom they target and how. It is a threat that can be wielded to force pleas to lesser crimes or other “voluntary” actions that obviate the need for a messy trial they might lose.
Megan McArdle, “California Accidentally Legalizes Campus Sex”, Bloomberg View, 2014-09-23.
September 25, 2015
QotD: The danger of vague laws
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September 24, 2015
A case study – Nik-Mart in Subsistia
Don Boudreaux looks at the different effects of international aid and capitalist exploitation in a desperately poor, far-away country:
The far-away land of Subsistia is inhabited by people who are desperately poor, not only relative to the typical person elsewhere on the globe but also in absolute terms. For decades well-meaning, well-educated, and well-funded people from the United States and other wealthy countries have visited Subsistia to help raise Subsistians out of poverty.
Alas, while these efforts by governments, NGOs, and churches have been many and munificent, all ordinary Subsistians continue to live in deep poverty – that is, until recently. A few short years ago a large U.S. corporation, Nik-Mart, set up factories in Subsistia. The wages that Nik-Mart pays to its Subsistian workers, while much higher than the average wage in Subsistia, are only a tiny fraction of the wages that Nik-Mart pays to its production-line employees in America.
Nik-Mart sells the goods produced in its Subsistian factories all around the world. One result of Nik-Mart’s operations in Subsistia is that the real prices that poor Americans and Europeans pay for shoes, clothing, and home furnishings have fallen significantly.
Nik-Mart is consistently one of the world’s most profitable corporations. It is also one of the world’s most hated.
When word recently leaked out of Nik-Mart’s record sales revenues and of the healthy rate of return on Nik-Mart’s assets, protests erupted in all major capitals of the developed world. Washington, Ottawa, Santiago, London, Amsterdam, Stockholm, Paris, Berlin, Madrid, Rome, Prague, Moscow, Tokyo, Pretoria, Canberra – these and other cities were swarmed by protestors demanding “social justice” and criticizing Nik-Mart for exploiting workers. “Nik-Mart’s profits are in the billions,” screamed U.S. Sen. Elsbeth Walter, who gave a rousing speech to protestors on the Washington Mall, “and yet it exploits poor workers in Subsistia while it off-shores jobs from America, hurting poor Americans! Have you no shame, Nik-Mart? Have! You! No! Shame?!!” Sen. Walter rhetorically asked, her index finger pointing accusingly at an imaginary Nik-Mart executive presumably hovering, phantasmically yet bloatedly, before her.
The Sunday talking-head shows were filled with heads talking of little else. “It’s really unconscionable,” said Harmon Nicholson, a famous progressive columnist, “that Nik-Mart takes advantage of the freedom that this country gives it to produce the things it sells in America outside of America. It’s no wonder our jobs picture is so weak and that American wages have stagnated.”
Sen. Lawrence Greenham, a Republican from the south, chimed in: “I don’t normally agree with Harmon, but he’s right on this. American plutocrats are gettin’ richer an’ richer off the backs of America’s poor. It’s gotta stop.”
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September 23, 2015
Oppressed by cisnormative expectations? Harassed by microaggressions? Come to Snowflake U!
Ken White imagines a market solution to help academia’s most special snowflakes:
Imagine a world in which the market lets people decide whether to be special snowflakes — people wtih an actual protected right not to be upset or offended.
As the University of California’s proposal shows, the legions of school administrators are perfectly capable of creating Snowflake Schools, where the administration vigorously defends students’ rights to be free of offense. What if we let them?
Take, let’s say, Brown University. They’re already on FIRE’s red light policy list, and frankly I enjoy making fun of them. Brown could decide to take on the mantle of a Snowflake School. It could openly declare that its students have a right not to be offended. It could enact policies accordingly, and discipline students and faculty who cause any offense through their speech and actions. Brown could display the snowflake symbol on their letterhead and web page. They could even vigorously rebrand themselves to attract students who don’t want to be offended — I don’t know, they could rename their teams The Blizzards or something.
Students, staff, and academics could then vote with their feet. Do I want to go to an acknowledged Snowflake School? Maybe I do, and will wear the snowflake badge proudly. Maybe I don’t — either because I don’t want to get expelled for offending someone, or because I’m embarrassed to go someplace that marks me as a snowflake.
Other people could vote, too. Do I want to hire someone who chose to go to a Snowflake School? You might, but I wouldn’t. Do I want to date a Snowflake? Do I want a doctor, a lawyer, an accountant who wears a Snowflake U. sweatshirt?
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In debt to the bank? Underwater on your mortgage? You might want to check the document carefully…
At The Intercept, David Dayen says that there are a lot of sketchy documents that banks are hoping will stand up in court, but they might well be wrong:
A Seattle housing activist on Wednesday uploaded an explosive land-record audit that the local City Council had been sitting on, revealing its far-reaching conclusion: that all assignments of mortgages the auditors studied are void.
That makes any foreclosures in the city based on these documents illegal and unenforceable, and makes the King County recording offices where the documents are located a massive crime scene.
The problems stem from the Mortgage Electronic Registration Systems (MERS), an entity banks created so they could transfer mortgages privately, saving them billions of dollars in transfer fees to public recording offices. In Washington state, MERS’ practices were found illegal by the State Supreme Court in 2012. But MERS continued those practices with only cosmetic changes, the audit found.
That finding has national implications. Every state has its own mortgage laws, and some of the audit’s conclusions may not necessarily apply elsewhere. But it shows how MERS reacted to being caught defrauding the public by trying to sneak through foreclosures anyway. Combined with evidence in other parts of the country, like the failure to register out-of-state business trusts in Montana, it suggests that the mortgage industry has been inattentive to and dismissive of state foreclosure laws.
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September 22, 2015
Volkswagen’s software DRM enabled the scam to fake emission data
At Boing Boing, Cory Doctorow points the finger of blame at VW’s DRM in their automobile software suite:
The EPA has accused Volkswagen of rigging its software to cheat the agency’s diesel emissions standards so that its cars could be on the road while spewing 40 times the legal limit for diesel emissions.
Volkswagen, like most auto manufacturers, uses digital rights management in its informatic systems. Under section 1201 of the Digital Millennium Copyright Act, it is a felony to tamper with that DRM, punishable by five years in prison and a $500,000 fine for a first offense. The company uses this legal regime to limit which mechanics can service its cars, ensuring that only “official” mechanics, who are bound by nondisclosure agreements — and covenants to only buy their parts from VW and not an aftermarket competitor — can effectively service their cars.
This year, the US Copyright Office held its triennial hearings into possible exceptions to this rule, and one petition asked it to grant an exemption for jailbreaking cars. The car manufacturers intervened to oppose this, but so did the EPA, fearing that drivers would modify their firmware in ways that increased emissions.
But by banning independent scrutiny of cars, the EPA and the Copyright Office have made possible for terrible, criminal frauds like this one to go undetected for long periods, turning cars into long-lived reservoirs of dirty secrets that can’t be reported without risking criminal sanction.
Jazz Shaw has more:
This isn’t a case of any sort of trick carburetor or jury rigged catalytic converter. The vehicle’s onboard computer could sense when it was hooked up to a diagnostics machine for an emissions test and would conveniently turn on all of its emission control features. (It’s being referred to as a “defeat device.”) Then, when the test was completed and it was unhooked from the computer it would simply shut them off again, boosting performance but also increasing emissions. You almost have to admire the sheer audacity assuming this is true. And given the initial responses from the company they don’t seem to be claiming that they didn’t do it.
[…]
So far Volkswagen seems to be taking the line of assuring everyone that they will work to recall the cars and “fix” them to eliminate this problem. It likely won’t bankrupt a company that size, but it’s one heck of an expensive piece of humble pie to eat. If they contest the fines and go to court, however, I’m wondering if they will actually lose. This was some mischief designed to short sheet the system no doubt, but would they have an out if the case goes before a judge? I was looking over some of the state level requirements for the testing of vehicles and the boundaries to be followed are rather bare bones at best. Each vehicle in the qualifying categories which was manufactured after 1996 has to be equipped with an On-Board Diagnostics Generation II (OBDII) system. The emissions portion of this is heavily tied into your annoying “check engine” light.
The way most of the regulations are written seems to indicate that the vehicle must have a functional system of this type which is accurately monitoring system performance and meets the maximum emissions requirements at the time of testing. Obviously the VW vehicles in question were doing just that. But cars today have all sorts of bells and whistles which drivers can use to customize their driving experience. They can switch from “performance” mode to “economy” mode with the push of a button. Things like that obviously affect the vehicle’s emissions. Other such options are available. And when you think about it, the “disable device” was really just putting the car into a different mode of operation which includes heavy emissions control. When it was disconnected and ready to head back out on the road it was switching back to a different mode with a bit more performance. None of that changes the fact that the emissions were within the required limits at the time of testing.
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September 20, 2015
Perhaps this is the real reason Bruce became Cait
Dr. Helen Smith may have figured out the key motivation for Bruce Jenner’s decision to become Caitlyn:
Really, Kris is now happy for Caitlyn and didn’t want to talk to her when she was angry? Why wasn’t she that considerate when Caitlyn was Bruce? Even Caitlyn mentions what crap she was treated like in their marriage when he (she) was just Bruce for years. If you doubt me, take a look at the past episodes of Keeping Up with the Kardashians where Bruce’s opinions were ignored; he pretty much lived in the garage and anger was thrown his way with abandon by the family and Kris in particular. Sound familiar? This is the way many men are treated by families every day, and no one gives a crap. After all, they’re just men and probably have no feelings.
Now that Bruce has come out as a woman, his feelings are treated with care, and everyone, including Kris, is walking on eggshells. Why? It is socially unacceptable to trash talk women, particularly transgender women. Kris must feel angry inside, but can’t really express it. She has to pretend to be happy for Cait. To profess otherwise makes her into the bad guy. Now, if Cait were a man, she could talk with abandon and her anger would be justified. But she has been one-upped by Caitlyn. Maybe more men should transition to women as an act of self-defense as misandry spreads. Bruce joined the winning team and really, who can blame him?
I don’t know how much water this theory holds, but I have to admit that I had to Google search the phrase “Keeping Up with the Kardashians”, so perhaps it’s not something I really need to have an opinion on…
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September 19, 2015
First world problems – pronouns
Katharine Timpf explains why we all face potentially insurmountable problems with our pronouns:
Scripps College, a private all-women’s college in Southern California, is giving students ten pronoun options to choose from in their student portal accounts — including “hu, hum, hus, himself,” “Just My Name Please,” and “None”
It’s not clear what the hell students who choose “None” are supposed to be called, especially since “Name Only” is another option. Are they (oops! I said “they!”) asking to not be spoken to at all? Because that sounds like a microaggression.
The other eight options are “E/Ey, Em, Eir/Eirs, Eirself/Emse,” “Per, Per, Per/Pers, Perself,” “Zi, Hir/Hirs Hirself,” “Ze, Zir, Zir/Zirs, Zirself,” “They, Them, Their/Theirs, Themse” (used as a singular pronoun) and — yes — the archaic “He, Him, His, Himself” or “Her, She, Hers, Herself.”
[…]
There is, however, an obvious problem with this system: What about the gender-fluid students who may change genders and pronouns throughout the year, or even perhaps throughout the day? I can’t imagine how traumatic (dangerous?) being pressured to choose just one might be.
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September 18, 2015
What is killing small US businesses? Compliance costs and regulatory overstretch
Okay, perhaps the headline is a bit strong, but Warren Meyer explains why even “small” businesses need to be bigger than ever in order to be able to file all the appropriate government forms, rather than concentrating on serving their customers and growing their client base:
Over the last four years or so we have spent all of this capacity on complying with government rules. No capacity has been left over to do other new things. Here are just a few of the things we have been spending time on:
- Because no insurance company has been willing to write coverage for our employees (older people working seasonally) we were forced to try to shift scores of employees from full-time to part-time work to avoid Obamacare penalties that would have been larger than our annual profits. This took a lot of new processes and retraining and new hiring to make work. And we are still not done, because we have to get down another 30 or so full-time workers for next year.
- The local minimum wage movement has forced us to rethink our whole labor system to deal with rising minimum wages. Also, since we must go through a time-consuming process to get the government agencies we work with to approve pricing and fee changes, we have had to spend an inordinate amount of time justifying price increases to cover these mandated increases in our labor costs. This will just accelerate in the future, as the President’s contractor minimum wage order is, in some places, forcing us to raise camping prices by an astounding 20%.
- Several states have mandated we use e-Verify on all new employees, which is an incredibly time-consuming addition to our hiring process.
- In fact, the proliferation of employee hiring documentation requirements has forced us through two separate iterations of a hiring document tracking and management system.
- The California legislature can be thought of as an incredibly efficient machine for creating huge masses of compliance work. We have to have a whole system to make sure our employees don’t work over their meal breaks. We have to have detailed processes in place for hot days. We have to have exactly the right kinds of chairs for our employees. We have to put together complicated shifts to meet California’s much tougher overtime rules. Just this past year, we had to put in a system for keeping track of paid sick days earned by employees. We have two employee manuals: one for most of the country and one just for California and all its requirements (it has something like 27 flavors of mandatory leave employers must grant). The list goes on and on. So much so that in addition to all the compliance work, we also spent a lot of work shutting down every operation of ours in California, narrowing down to just 3 contracts today. There has been one time savings though — we never look at any new business opportunities in CA because we have no desire to add exposure to that state.
Does any of this add value? Well, I suppose if you are one who considers it more important that companies make absolutely sure they offer time off to stalking victims in California than focus on productivity, you are going to be very happy with what we have been working on. Otherwise….
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September 17, 2015
Regulatory tangle may shut down major US railroads in December
A safety regulation for US common-carrier railroads is due to come into effect at the end of December, but the railroad companies are already warning that they may not be able to comply and that the only legal course of action under the current rules would be to shut down:
In a candid letter to a U.S. senator, BNSF Railway’s chief executive, Carl Ice, said September 9 that BNSF would in effect shut down most of its network rather than violate a federal law mandating that positive train control be operational by December 31. CSX Transportation has said it, too, questions whether it should violate federal laws, and other Class I carriers are likely to follow suit. This set up the real possibility of a national transportation crisis at the beginning of 2016. The public may be unaware of how closely the U.S. economy is tied to railroads, but the reality is that without railroads, this country will quickly cease to function normally. Imagine, for instance, no electricity to heat homes.
[…]
The Surface Transportation Board, which regulates railroads, in effect came to the aid of BNSF and other railroads this past week. Its chairman, Daniel Elliott, wrote to Thune to say that railroads can “lawfully suspend service for various reasons, including safety.” In other words, Elliott is saying that the common carrier obligation of railroads is not absolute. Elliott added that CSX has expressed sentiments similar to those of BNSF.
So what does this all mean? I take railroads at their word that they have diligently tried to install PTC by the deadline. Six years ago Congress thought it was giving railroads enough time to do this, and railroads did not object then to that deadline. But implementation has been a disaster. The technology being put in place is largely new. FRA was slow to issue necessary rules. Signal engineers able to put all the pieces together have been in short supply. And then for more than a year everything ground to a halt because the Federal Communications Commission would not issue permits for construction of radio towers and antennae.
Further, as Ice points out to Thune, PTC is full of bugs as railroads roll it out on their networks. Says Ice: “We are seeing the PTC system trigger unnecessary braking events in which trains are stopped with a full-service brake application. This means that significant work has to occur before the train can re-start. These kinds of delays are numerous and cumulatively consume railroad capacity.”
What railroads have sought is an extension of the deadline, something that Congress has thus far refused to act upon because the votes to permit an extension aren’t there. Now the industry is beginning to say fine, we will not disobey the law and as a result we will be able to offer only a fraction of the service our customers depend upon.
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September 15, 2015
QotD: The Ex-Im Bank
… every time the Ex-Im Bank gets involved in a deal, there are only two possibilities: The government is needlessly subsidizing something that would have happened anyway, giving away cheap money to a huge corporation. Or else it’s subsidizing a deal that wouldn’t have happened anyway, in which case we are defending the use of taxpayer dollars to sell cheap manufactured goods to foreigners. It’s not even as if we’re picking out especially needy foreigners, who may require a charitable contribution from the prosperous citizens of the United States; the subsidy is distributed on the basis of who is willing to, say, buy cut-rate U.S. airframes. And guess who benefits? U.S. corporations that export a lot.
This is not a good use of taxpayer dollars, and conservative ideologues, bless their hearts, are quite right to want to get rid of it. Their passion is a little out of proportion to the harm that this agency does, but even a small step in the right direction is better than none. The bank’s opponents concede that. For them, the appeal of taking on Ex-Im is that they might be able to take it down.
Against this impeccable economic and political logic, the bank’s supporters marshal a few arguments. First, they often claim (as Nocera implies) that the Ex-Im Bank generates a lot of money for the Treasury. Which is sort of true … except. First of all, it doesn’t account for the opportunity costs of the distortion; resources are diverted into production of certain goods, and away from others. And second of all, government accounting for loans is rather weird. According to the Congressional Budget Office, if we used a fair value accounting method, which would account for the risk of changing market conditions, the Ex-Im Bank’s six largest programs would be generating a deficit, not a surplus.
We are also told that Ex-Im is a vital matter of national security. I’m going out on a limb here, but I’m pretty sure that if the U.S. government needs to find some money to give foreigners as a vital matter of national security, they will manage to find it even if the Ex-Im Bank is shuttered and its silent halls hold only the lingering ghosts of departed exporters.
Megan McArdle, “Ex-Im Bank Is a Tiny But Tempting Target”, Bloomberg View, 2015-08-03.
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September 14, 2015
Trump and “middle class respectability”
At Ace of Spades H.Q. last week, Ace explained what might eventually be the kryptonite that allows someone to defeat “el Donaldo” in the Republican race:
There is a notion of Middle Class Respectability. This notion is important to most members of my (your?) class. It can be put aside by highly-committed partisans who are intensely in favor of Trump (and who therefore don’t sweat negative information about him), but not by most people.
I have said before, in a line that I quite like, that Donald Trump is gloriously unburdened by respectability. Respectability is both a blessing and a curse.
Respectability, obviously, grants you some respect; you behave properly, according to the code of the class, and therefore are considered a member in good standing of that class.
But it is also very limiting. Many people will point out that GOP/RINO “pussies” will buckle and apologize at the first dirty look from a member of the liberal establishment.
That is the downside of respectability — people are afraid to lose it, and will quickly apologize when The Mob threatens to withdraw respectability from them.
And in America 2015, public respectability is granted by — controlled by — the college-educated upper-middle-class Media Class which controls most everything related to morals and manners.
The fact that Trump is gloriously unburdened by respectability makes him willing/able to say things that no Respectability-Craving politician ever could, like that yes, we need a border wall, and yes, we are permitted to, and should, be outraged by foreign criminals murdering Americans who are permitted to be here by Democratic mayors and presidents.
But the downside of his contempt for respectability is that he will obliviously trample things that are very important to the people whose support he will ultimately need, if he wants to do more than blow hot air.
Whether or not Trump thinks that upper middle class suburban Republicans are silly or not, whether or not he thinks they’re “losers” or not for owning only two cars, he will need that one third of the party that is currently dead-set against him.
And while Trump seems to either have a problem with women (how long did he spend attacking Megyn Kelly, versus how long did he spend attacking Chris Wallace?) or is simply unburdened by the Middle Class Respectability code of gallantry towards women, It is making a very large and influential block of people absolutely disgusted by him, repelled by him not a political level (which could always later be finessed or papered over) but on a personal level (which can never be repaired).
And.
He.
Won’t.
Stop.
I would venture to say he can’t stop — I would venture to say that in Trump’s world of yes-men and eternal entitlement, calling a woman ugly is just sort of something he casually does, and, like a high school super-jock who’s always been protected from the consequences of his actions, he just has never had reason to internalize that dismissing a woman as Sexually Not Up to My High Standards as an opening gambit in conversation is socially disfavored.
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September 13, 2015
Teaching microaggressions
At Ace of Spades HQ, Ace sums up the deepest problem with the movement to find microaggressions everywhere and in everything:
The idea is that just as cognitive therapy teaches people to not make a big deal out of trivialities (like teaching people who have a phobia about elevators to learn to not be afraid of elevators), microagression brain-programming is a malicious form of cognitive therapy teaching people the exact opposite — to fear this, hate that, fly off the handle about this other thing, and generally carry on like a lunatic about things that sane people do not even think about.
And just as the good form of cognitive therapy can make a hysteric or neurotic a well-functioning individual, so can the insidious form of it turn a well-functioning individual into a hysteric or neurotic.
I think it’s 100% right and I’m glad someone had the guts to say so.
Colleges and progressives generally are teaching young people how to be mentally ill.
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September 12, 2015
Trump isn’t a political candidate … he’s a political fireship
Grant McCracken explains why revelations of faults and gaffes not only don’t cost Donald Trump any support, they often increase his appeal to voters:
The answer, I think, is that his supporters don’t want a president. They want a fireship.
Fireships were instruments of destruction when the world was ruled by wooden ships. The idea was to pack a ship with flammables, set it ablaze, and send it in the direction of enemy ships in the hope that it would set these enemy ships ablaze. Fireships helped defeat the Spanish armada gathered in the English Channel.
Donald Trump promises to make a very good fireship. He lacks the subtlety, intelligence, breadth, and leadership we look for in a candidate. And that’s precisely what makes him such an effective instrument of political disruption.
Reckless, boorish, self centered? Perfect. Trump’s flaws make him a unassimilable. Washington is its own empire with formidable powers of hegemony. Many reformers go to Washington. Virtually all are claimed, colonized, incorporated. The Trumpians believes they have found a candidate so full of himself not even the Borg can absorb him. (If you can’t have incorruptible, unassimilable will have to do.)
But that’s just Step 1 of the Trump disruption, the passive play. Step 2, the active play, is a candidate who thinks he’s smarter than the system. Most Trumpians know that Trump isn’t smarter than the system. They just want him to act as if he is. That guarantees the destructive chaos they’re hoping for. I don’t think anyone doubts that Trump is a bully and a blow hard. They just want him to knock lots of things down when he throws his weight around. (If you can’t have cunning, clumsy will have to do.)
Trumpians don’t want a candidate. They want an agent of chaos. They don’t want to reform Washington. They want to burn it down.
September 10, 2015
Making it easy for governments to monitor texts, emails, and other messages
Megan McArdle explains that while it’s quite understandable why governments want to maintain their technological ability to read private, personal communications … but that’s not sufficient justification to just give in and allow them the full access they claim that they “need”:
Imagine, if you will, a law that said all doors had to be left unlocked so that the police could get in whenever they needed to. Or at the very least, a law mandating that the government have a master key.
That’s essentially what some in the government want for your technology. As companies like Apple and Google have embraced stronger encryption, they’re making it harder for the government to do the kind of easy instant collection that companies were forced into as the government chased terrorists after 9/11.
And how could you oppose that government access? After all, the government keeps us safe from criminals. Do you really want to make it easier for criminals to evade the law?
The analogy with your home doors suggests the flaw in this thinking: The U.S. government is not the only entity capable of using a master key. Criminals can use them too. If you create an easy way to bypass security, criminals — or other governments — are going to start looking for ways to reproduce the keys.
[…]
Law enforcement is going to pursue strategies that maximize the ability to catch criminals or terrorists. These are noble goals. But we have to take care that in the pursuit of these goals, the population they’re trying to protect is not forgotten. Every time we open more doors for our own government, we’re inviting other unwelcome guests to join them inside.
I don’t really blame law enforcement for pushing as hard as possible; rare is the organization in history that has said, “You know, the world would be a better place if I had less power to do my job.” But that makes it more imperative that the rest of us keep an eye on what they’re doing, and force the law to account for tradeoffs, rather than the single-minded pursuit of one goal.
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