Blog Archives

March Madness

3/31/2023

There are many excesses of capitalism. Indeed, one of the central problems with the whole concept (i.e., a money-based epistemology) is that there are no inherent limits or balancing values. Unless some cultural/moral value can be quantified and incorporated into the market; it gets ignored. Education, especially at the college level, has already been well caught up in the whirlwind of career and earnings. Humanity (both the group and the value) and the Humanities (plural of the latter) seem to be fighting a rear-guard action.

Another aspect of the capitalist perversion of education can be found in college sports. The friendly and inherently meaningless competitions of youth are increasingly packaged and quasi-professionalized. The values that would justify the otherwise nonsensical pursuit of various sized and shaped balls—camaraderie, cooperation, perseverance, self-discipline, and “sportspersonship”—have taken a back-row seat (on a bus!). To be sure, colleges still mouth the mantras of noble aspiration, but they put their money/time/prestige into luxury-box-equipped arenas, coaching salaries and training palaces. Chatbot tells me that the average Division 1 college basketball head coach is paid $2.7M and the average college professor is paid $80,000 (a ratio of 34:1). Something is clearly out of whack.

I was recently discussing the surprising outcomes (so far) in the NCAA Men’s Basketball Tournament with a friend of mine, who is a fully registered fan of many sports (particularly baseball and basketball). He explained that since it is now legit for college athletes to be paid for endorsements (since 2021) they are incented to play for teams and in cities where they can best leverage their “brand” and bring home pretty substantial (6-figure) bucks. The NCAA even made it easier for them to transfer from school to school. Thus boosting the game of the U of Miami. The whole thing is a recipe for corruption. (I offer no explanation for Princeton’s Cinderella act or other upsets during the tournament).

Now, I do not begrudge young athletes “cashing in” on their abilities. The line between “professional” and “amateur” athletes is hopelessly blurred. Rather, my concern is with the remnants of integrity to be found in the halls of academe. Under the rubric of “competition,” such student-athletes are scouted, recruited, subsidized, tutored, and graduated on the backs of a wave of resources that dwarfs those available to the average student.

And for what? The prestige of being an also-ran in a tournament of the top 72 college teams in the country (i.e., one of the 71 teams that didn’t win; that’s over 98% of them). A tournament whose results, particularly for these “also-rans,” and after a year or two, fall into the nether reaches of Wikipedia.

In this critique, I understand and dismiss the arguments that “all the extra money comes from outside fans/donors,” and that colleges “profit” from college athletics financially (as well as in terms of prestige). These rationales are prime evidence of submission to capitalist mentalités from institutions who are increasingly struggling to deliver their prime objective: productive and responsible adults/citizens. These colleges all have well-honed machines that take all manner of government research grants and shave off 5-10-15% as “overhead,” which funds go into the general university budgets. Why not a 25% slice of all athletic donations to support actual education?

Why not a cap on college coach’s salaries at three times the average salary of full professors or the average of the top five academic administrators in the university?

Why not a limit on recruiting expenditures? There are plenty of paid and alumni talent scouts out there. Why should some coach from Texas be scouting in California (or vice-versa)? The talent will rise, it can just rise locally.

Why not limit the number of athletic scholarships and put the resources to academically capable but needy students? Or, at least, have the scholarships available only to students from the home state of the institution? What would be lost to society if players played for the schools in their home states?

Such steps might have a marginal effect on the big athletic programs around the country, but their enactment would be a useful signal of purpose and values. This is especially true for public universities (who generally have the biggest programs and the smaller academic endowments).

More radically, universities could just drop their programs in the sports that have the biggest professional leagues (basketball and football). Right now, these (very) profitable businesses are getting all their talent developed for them at virtually no cost. Let’s have them set up “minor leagues” as baseball does. They could even keep the same uniforms and pay the universities rent on their stadiums. In fact, just to keep it simple, each university could sell its “franchise” lock/stock/barrel to the NFL/NBA. The operations could remain as they are, but wouldn’t be formally part of the University. Coaches and athletes would be paid market rates, but the fiction of “scholar-athletes” could be dispensed with.

In the end, it’s not clear to me why intra-mural sports or friendly club competitions between schools in a region couldn’t achieve the same level of benefit to the students in terms of camaraderie, cooperation, perseverance, self-discipline, and “sportspersonship” without all the empty hoopla.

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Law as History

3/24/2023

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I was talking with a History Department colleague recently who was asking about the strange relationship between law and history. They were referring, in particular, to the peculiar notion of “precedent” in the Anglo-American legal tradition which is, after all, a form of historical analysis although one that most “regular” historians might wonder at.

There are, in fact many ways in which law and history intersect. There is, for example, an entire branch of history that looks at the development of law as a set of ideas and of practices (both statutory and judicial) with widespread social effects. My own research, on public international arbitration and on certain forms of imperial treaties, focuses on this field.

However, my colleague’s question got me thinking about how law (in the particular mode of litigation and judicial decisions) uses history and historical forms and practices. Lawyers will tell you that they deal with two things in each case: the “Law” and the “Facts.” In a sense, each judicial decision describes the intersection of two stories, i.e., two histories: one is a story/history of the law and the other is a story/history of the facts. Actually, given the complexities of life and of the legal process, there are always multiple stories in each category: different pieces of the law are brought into consideration in each case and there are usually multiple sets of facts (not least of which are the “substantive” facts (e.g., which car ran into the other, who said what in a business negotiation) and the “procedural” facts (e.g., who filed suit, against whom, in what court, using what theory, etc.)).

Lawyers, in arguing their case, and judges, in their opinion, each construct each type of story; that is, they’re writing history. Yet, while they’re all trained as lawyers, only a few are trained as historians. Having run the gauntlet in each discipline, I can tell you that they are not the same thing at all.

Take, for example, the idea of “legislative history,” i.e. the idea of looking at the debates and information considered by the law maker (e.g. Congress) as it was adopting a particular statute as a means of figuring out how to interpret that statute. It’s a highly constrained mode of history. Legal parameters about written documentation and official records ensure that judges consider only a subset of the motivations and understandings of law-makers. Was a niece of a House committee chair diagnosed with an ailment a few months before legislation was enacted to add that ailment to Medicare coverage? Highly relevant, to be sure, certainly a factor that a regular historian would consider; but nowhere to be seen in the “legislative history.” Then there is the problem of parsing out who thought what in the course of a legislative process that involved hundreds of people. Whose perceptions and statements count for more than others? What did they really think? These imponderables are part of why “constitutional originalism” (one variety of “legislative history”) is particularly fraught as a method of interpretation. So, this makes for good interpretive law-making (of the judicial variety), but it’s nothing a historian would sign on to. That’s part of the reason most historians think that constitutional originalism is bunk. Indeed, most “historical assessments of legislation are broad in their consideration of different factors and generally avoid relying on particular causative chains since getting into people’s heads is a dicey historical proposition.

On the other hand, if we accept that history is (in the words of E.H. Carr) “a dialogue between the past and the present,” then we can see that the legal principle of precedent (i.e., sticking with past decisions unless there is a clear and articulatable change of circumstances) seems to fit the historical bill. Negligence principles, for example, date back hundreds of years in the Anglo-American legal system. They hadn’t seen the need to create “no left turn” lanes for cows in 14C England; but by the turn of the 20C, when motorized vehicles appeared on the scene, there were no explicit rules about their proper operation and liability for accidents. Courts adapted traditional principles to the new set of circumstances. This required extracting the essence of the jurisprudential idea and distinguishing the old set of facts from the current circumstances; precisely what historians do…in a sense. But, it’s pretty rare to see court decisions thoroughly analyze the historical context of the decision they’re citing as precedent. The law (and judges and lawyers) can do this because their focus is on the principles, not on the historical facts. Instead, precedent exists as a stack of rules/principles which need interpretation in the present day. The articulation of difference in order to justify a new result (i.e. an updated principle) is what judges do. By comparison, historians—while we articulate difference over time as well—are interested in the historical facts and not (if we’re being good historians) in judging current events.

A trial, on the other hand, is about producing a coherent story of what happened; as is an historian’s analysis. Of course, neither the judicial trial nor historians’ processes should be confused with determining the “truth” of a situation. Both have limits; and both acknowledge their limits, but there are some shared and some different constraints. For example, the “hearsay” rule or the 4A exclusion of improperly seized contraband both ignore pieces of evidence (i.e., create gaps in the stories being constructed) that historians love to chew over. Both require footnotes (although sometimes for different purposes) and lawyers require chain of custody of incriminating evidence. Both work with sources of limited reliability: memory, bias, and gaps. Both try to get at this “truth” thing, both know they will fail, and both are surprisingly comfortable with that failure. For lawyers, the priority is the immediate case and the client. For historians, the priority is the process of increasingly approximating the truth over time and (or should be) the honing of minds and souls.

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Britannia Rules the Waves

3/17/2023

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The unofficial anthem of the (British) Royal Navy is based on an 18C poem, famously set to music by Thomas Arne. The refrain goes: “Rule, Britannia! Rule the waves; Britons never, never, never, never will be slaves.”

I haven’t beat up on the Brexiteers for a while, so the latest kerfuffle provides a good opportunity to do so. The “return to [Tory] normalcy” embodied by Rishi Sunak’s administration has manifested itself in this regard by finally striking a deal with the EU over the status of Northern Ireland. Such a deal was feasible when the negotiations began in 2018 and it took this long primarily because of table-pounding by those who are still living in the (early) 20C in terms of the British Empire. Even now, Boris is unsure he can support it (although specific critiques and alternatives are, as usual, lacking).

Attention has now turned to one of the principal proffered rationales for the entire Brexit process, i.e., the country’s inability to control its borders. Now that the UK is freed from the tyranny of the Eurocrats of Brussels, it has struggled to come up with a way of dealing with immigrants, most of whom (people of color) have gone through unbelievable dangers and deprivation to find opportunity in the country that claims to be the historical champion of liberty.

One might think that with a Prime Minister and Home Secretary both of whom are children of immigrants that British policy would be sympathetic and supportive. Instead, in the manner of pulling up the drawbridge after you have safely scuttled inside the castle, Sunak and Braverman have concocted a couple of “play-to-the-electoral-base” schemes for dealing with asylum seekers and other immigrants.

Last year, they developed a plan to ship these poor folks to Rwanda. Yes, in the middle of East Africa, about 2,000 miles away (even further than most of these immigrants have traveled). Now, I won’t even get into the legal complications (domestic and international) of this plan, but the whole thing smacks of imperialism redux. The Tories don’t care about the optics or the ethics, but the legalities have tied this up in the courts.

Which leads us to the latest bit of “Little England” cleverness. Under the newest proposal, immigrants seeking asylum who make it across the Channel will be deemed illegal and deported if they arrive in “small boats.” You don’t need to get into such underlying questions as morality, justice, and international law, the causes of international migration (poverty, war, oppression, etc.) to be gob-smacked by this approach.

Apparently, if you come over on a plane or take the train through the Chunnel, you’re OK. Presumably, if you paddle in on a surfboard (or swim across the Channel), you’re OK. If you arrive on a “large boat” (e.g., a Russian oligarch on his super-yacht), you’re OK. Will they have a tape measure on hand in Dover Harbor to assess the length of the boat? Go figure.

Apparently the last time this many small boats were active in the Channel was during the evacuation of Dunkirk (1940). Times have changed.

Apparently, the Royal Navy can’t stop the onslaught. The island’s defenses, sturdy enough to deter both Napoleon and Hitler (“fight them on the beaches” and all that), are no longer up to the task. Apparently, Britannia no longer “rules the waves.”

This plan, too, seems to violate international law on the treatment of asylum seekers and will be undoubtedly challenged in court should it make it through Parliament. But, it is the attitudes of the British Government which are more striking that the questions of formal compliance. Britain’s loss of control of its borders has little to do with its participation in the EU. The Government thinks they’re back in the era of Admiral Lord Nelson or First Lord of the Admiralty Winston Churchill. However, the Royal Navy can’t cut it anymore; its impotence a sobering symbol of the decline of British global/imperial/military power.

It's this longing for the grandeur of the past that lays behind the entire Brexit project. For the past eighty years, the UK has been trying to deal with its imperial decline: Humiliated by an abortive invasion of Egypt during the 1956 Suez Crisis; watching most of the Empire peel off by the 1960s; finding some solace in the EU from the 1970s (until 2021). If it weren’t for the perennial reluctance of Italy to become modern, the UK would be the 4th largest economy in Western Europe. It’s already being outpaced by the former “jewel in its imperial crown” (India). It’s a long way to fall and it will take another generation for this all to sink in.

Brexit may have ensured that Britons will “never, never, never, never be slaves” to Brussels. Freeing themselves from the past is another matter entirely.

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Sunset Boulevard

3/10/2023

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Sunset Boulevard

The most politically effective moment of Biden’s recent State-of-the-Union Address was the off-script interchange occasioned by his poke at Republicans about undermining Social Security and Medicare. He pointed out—accurately—that some in the GOP (particularly Sen. Rick Scott) favor sunsetting all federal laws and requiring them to be debated and renewed/revised/eliminated every five years. Paul Krugman, with whose NYT column I usually agree, chimed in a little later with a general attack on sunsetting legislation. I think they’re both wrong.

First, and just to ensure that I never will get elected to national political office, let me break with the Dems and stand firmly atop the “third rail” of US politics by saying that Social Security needs major reforms. Indeed, it’s a great example of why Krugman’s aversion to sunsetting is so wrong (but more of that later).

Set up in the ‘30s as part of a broad restructuring of US social policy, Social Security has been a great success overall and should continue in a modified form. Besides cleaning up any number of administrative problems, there are three major changes I would: 1) getting rid of the “trust fund” illusion, 2) deferring eligibility dates, and 3) stop subsidizing rich folks too.

You can argue with the above list, both conceptually and as to specific remedies, but the underlying point is that times change and the law needs to change with it.

This leads to sunsetting. The problem is inertia: political inertia. Krugman is right to point out that our current politics are dysfunctional, but even when things were running more smoothly, there was a lot of “kick-the-can-down-the-road” going on. Politics is like that. Changing circumstance in the real world don’t get attention in the legislative process very well. We need to turn up the heat on our legislators to pay attention and update our laws and policies. Being an old telecommunications policy guy, I always had to shake my head when I saw the interminable debates on what turned out to be the Telecom Act of 1996—which had been first introduced in 1976! By the time it was finally enacted, it brought US telecom policy firmly into the 1970s. Despite the bewildering change in technology and industries since then, there’s been no real updating of the law in that area since, too! Sen. Tim Kaine has been championing a repeal of the Iraq War authorization legislation (from 2001) for similar reasons. The list of overdue updating and expirations is way too long.

But even if I think we need an automatic relook at legislation, I don’t agree with Sen. Scott’s proposal to sunset every federal statute after five years. That’s way too short. If you look at the US Code (the compilation of federal statutes) it’s 6550 pages long. Requiring a rewrite of each provision under Scott’s timeline would be 1300 pages/year on top of new legislative ideas, plus the appropriations process. It’s too much. It would turn into a superficial, pro forma charade and further undermine the seriousness with which we should take our laws. In addition, there is not much change in most areas of law within a five-year time-frame. So, other than the mechanical indexing of various dollar-level provisions (e.g., moving the trigger levels for a 10% or a 20% tax rate to keep up with inflation), there’s not much point. (Of course, you could argue that Scott’s entire proposal was political theater; performative legislative posturing to the right-wing “government is too big and over-regulatory” mentality.)

Instead, I’d like a 20-year sunset. That’s enough time to see the social/economic changes in the world and adapt the legislative model to them. It’s not too much of an annual burden on the legislative process. It would prevent the egregious examples of obsolete legislation and might spur some affected folks or congressional staffers to take a fresh look at what’s on the books.

Yes, there’s a risk—even on a 20-year cycle—of the process falling into routine and ritual renewal; but it would be a better use of Congressional time than any number of silly and performative actions that they spend their energy on now.

Krugman argues that a five-year sunset would undermine stability: the important ability of citizens to rely on what the law is and be able to plan one’s life accordingly. He’s right of course, but a longer-term cycle would obviate much of that and there is something important (if intangible) to be gained from the respect due to keeping laws current.

Even with regard to the particular political hot-button du jour—Social Security and Medicare—it’s the politics (i.e., the fear of political backlash) that keeps them on the books, not the formal lack of a sunset. Indeed, as I argued above, there’s too much stability.

At the end of the day, there is no legal limit on what Congress can do (other than the Constitution); so, regardless of whether they call Social Security a “trust fund,” they could still flush the whole thing in a week. Instead, if you added a constitutional sunset requirement, you could insert an exception that long-term commitments be honored (sort of like the current clause protecting the integrity of contracts), even if it’s likely to be a set-up for litigation on the details.

Krugman also bemoans the partisan and other legislative bickering that characterizes too much of our legislative process these days. He’s right that sunsetting would increase the opportunities for grandstanding (a la the debt-ceiling), but the underlying problematic attitudes will remain, regardless, and will find some situation they can hype up to generate press attention and re-election funds.

Ultimately, sunsetting would reflect a recognition that we shouldn’t be trapped by the past. We (whoever is around currently) should be making the decisions as to how we want to live; not the legislators of 30-50-80 years ago. Reliance on old laws is part of a broader disengagement with our political culture. We’ve gotten lazy and we need to step up.

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Time Warp

3/3/2023

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I was watching the returns from the Georgia Senate runoff election last year, simultaneously on NBC, 538, and the NYT sites. I felt a bit like I was on the Starship Enterprise, travelling at “warp speed” speeding by any number of separate dimensions with their own time planes and clocks. The political commentariat on these shows were throwing numbers were fast and furious, and the data were never the same as between the three tabulations. I don’t know if one organization was using different sources, or reporting data faster, or what, but it made for exciting TV. Warnock won in the end, by a decent margin, so—in the meantime—it was as Shakespeare said, a lot of “sound and fury, signifying nothing.” It’s an indication of our modern media frenzy, the desire for drama and adrenaline (which presumably sells ads).

But it’s also a marker of our strange relationship with time. The facts are settled, i.e., the votes had been cast. But, until they’re counted and announced, they’re rather like Schrodinger’s cat: neither dead, nor alive until we open the box, resolving the superposition. This was the basis of the (convenient) Trumpian analysis that initial vote counts in his favor were—somehow—the right answer to be preserved against being overturned by the later-counted (and therefore presumably fraudulent) votes.

We live in the world that we know. Unknown information doesn’t, in a sense, exist (yet!).

You can see the same time dilation if you watch a sports website spewing statistics about a live game. The data stream sometimes gets ahead of the nominally “live” broadcast of the actual event (e.g. Game Channel shows the Lions scoring a third touchdown (remarkable in itself!) while on the NBC broadcast, the score is tied at 14).

It is a hallmark of our 21C age that we live in that we expect instantaneous information, no matter the source or location. In earlier times, information would flow, in due course, with little to be done about it since horses/ships could only go so fast. The Rothschild banking house in London apparently made a pretty penny on getting the news of Napoleon’s defeat at Waterloo a bit faster than anyone else. Japanese soldiers isolated on obscure islands in the Pacific for years and decades still believed that WWII was ongoing. They didn’t know any better. Satellites (and later trans-oceanic fiber optic cables) brought it all home apparently “as it happened.” It was the wonder of simultaneity that made watching the Olympics “real-time” from Tokyo in 1964 the epitome of modernity. Stuff was happening in Japan tomorrow, but we could sit in our living rooms in the evening and watch Joe Frazier win the Gold Medal in Boxing. Time zones became tangible in a new and different way. CNN started its 24-hour news channel in 1980, so there was no more downtime; we could be plugged in continuously. About the same time, satellite-based telephony allowed for cheaper global calling, but it came with a price: quite apparent latency as the signal bounced off the satellite, making conversations stilted.

It's a sign of our times that this all seems ordinary now. Calls run on perceptively instant fiber cables. Cotton traders in Chicago and cotton farmers in Egypt learn almost instantly of a bad monsoon affecting Indian growers and they can both react in terms of the prices at which they buy and sell. We are used to conference calls (zoom/skype/teams/facetime) with participants in multiple times zones (and continents). What time is it, anyway?

We can say that “the world is getting smaller,” interpreting this phenomenon in geographical terms; pundits have been talking about the “death of distance” for decades. Or, we can say that the nature of time is changing. It’s not just the acceleration of events and the constant pummeling of “breaking news,” it’s not just the ever-faster modes of transportation (sorry, Concorde!) or the pace of tech (iPhone 23, anyone?).

The end of the differential of time/space is disorienting. It makes location less important (take that, real estate magnates!) and, since we literally orient ourselves by where we are, this can be upsetting. It makes clear that we are small pieces of a larger puzzle with little to do but plug into our corner of the WWW and forget that we have little control over our world.

And yet, as demonstrated by the voting tallies and the sports statistics, there are glitches in the system. We’re not actually in the stadium, nor in the office of the Georgia Secretary of State releasing precinct results. Our de facto distance varies by what means and channel we learn of what is happening there.

Does it really matter? The latter-day version of the Rothschilds getting the news from the Continent is the placement of stock-trading computers. When you’re pushing billions of dollars around, then a couple of micro-seconds can mean a real difference in the price you pay. Those micro-seconds can be minimized if you put your computer in Lower Manhattan as compared with Jersey City. Even at the speed of light, there’s a difference. But, just as Newtonian physics is more than adequate for most of us (leaving Einstein and quantum as curiosities); for most of us those micro-seconds don’t matter.

We may well get used to the fully-interconnected universal time in which the “infosphere” operates. The current rough edges will likely be smoothed away. Still, for those who might recall a certain cult film (1975), often marked by the tossing of toast, all I can say is: “Let’s do the ‘time-warp’ again!”

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Condemned to Repeat It --
Musings on history, society, and the world.

I don't actually agree with Santayana's famous quote, but this is my contribution to my version of it: "Anyone who hears Santayana's quote is condemned to repeat it."

March Madness

Law as History

Britannia Rules the Waves

Sunset Boulevard

Time Warp

Condemned to Repeat It --Musings on history, society, and the world.

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Condemned to Repeat It --
Musings on history, society, and the world.