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OT63: Open Pit Mining

This is the bi-weekly visible open thread. There are hidden threads every few days here. Post about anything you want, ask random questions, whatever. Also:

1. The Report Comment button is back. Thanks to 75thTrombone for fixing things up.

2. New advertisement on the sidebar, for the Secular Solstice celebration. I’ll be at the one in New York City, so if you’re coming too I’ll see you there.

3. Thanks to everyone who emailed me with your thoughts on Trump. I got hundreds of emails and can’t reply to all of them, especially the ones trying to engage me in debate. I’m sorry, I just can’t debate a hundred people at once.

4. Thanks to everyone who disagreed with my predictions and offered to bet on them. I’ve accepted a few offers already, but I won’t be accepting any more until I can get a Bets/Predictions post up where I record all of them so I can keep track.

5. A few people emailed me to say that they have friends or family members who attempted suicide for Trump-related reasons. I’m really sorry about that and I hope they’re okay. If you or someone you know is considering suicide, consider checking out the National Suicide Hotline at 1-800-273-8255, which also has a special webpage on election-related suicidality. Please note that in a few rare cases, if you’re really serious about commiting suicide immediately and won’t back down, calling a hotline can end with them picking you up for psychiatric hospitalization.

6. If you’re looking for a more productive way to deal with the election results, some friends have pointed out some good opportunities for activism:

— The National Popular Vote is a really cool and game-theoretically interesting way to get rid of the Electoral College without a Constitutional amendment. It’s pretty close to being passed and the site gives you some ways to help push it forward.

— Trump has posted an online survey asking which of his plans he should prioritize during his first 100 days in office. You might not find anything super-great on there, but some of them are definitely worse than others, and it might be that by telling him to prioritize the less bad ones you can do a lot of good. Disclaimer: I have no idea if Trump plans to take the survey results seriously.

— Apparently the new administration didn’t realize that all of Obama’s staffers are leaving, and now they have a few thousand executive branch jobs to fill. Because of their commitment to avoid lobbyists they can’t use the preferred method of just giving all the positions to lobbyists, and they’ve been reduced to the indignity of having to accept applications from real citizens. Bloomberg notes that There’s No Shame In Joining The Trump Administration if your goal is harm reduction, and if you agree you can apply here. If you have some kind of useful political/administrative experience, this might be an unusually easy route to getting a position of power where you can do useful things like lobby for foreign aid and alleviate the effects of various Trump policies. Curious what the EA peoples’ opinion on this is.

— Here is a very complete spreadsheet about how best to contact your representatives and senators.

7. If you want to change (or add a link to) your username on this blog, you can do it at http://slatestarcodex.com/wp-admin/profile.php

8. My Amazon affiliate link no longer works. Please don’t buy things through it and expect me to get any money.

9. In an effort to keep my Trump-related traffic spike around for more useful things, I’ve added a “Subscribe via email” button to the side of the blog. If you really want to get emails every time SSC updates, now you can.

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1,820 Responses to OT63: Open Pit Mining

  1. Dabbler says:

    Obvious question (though as an Australian citizen not an American one I feel dishonest filling out the survey)- what combination of Action Plan votes would do the best good for the country? I figure SSC American citizens might as well fill it out to have a little potential impact.

    • Scott Alexander says:

      I put as high prioity: infrastructure, tax deduction, end regime change, end common core, school choice, fewer regulations, better VA care, appoint Supreme Court Justice. They seemed like the least destructive policies on the list. Supreme Court Justice might be destructive, but we all know it’s going to happen anyway, and maybe if Trump focuses on it now it’ll keep him too busy to do the other stuff.

      • Aaron Weiss says:

        It’s interesting, I am a Trump supporter (including donating), so I got the survey via email…. he has sent a few similar surveys during the campaign (such as “What issues should I concentrate on for the next debate, etc).

        Anyways, I am a conservative protestant. The items you picked as “top priorities” are the same ones I did when I filled out the survey, although I also prefer simplifying the tax code over tax deduction.

        I just started reading your posts this week due to a link from Scott Adams, and it really makes me think that there is more in common with most honest red/blues, then they might ever believe.

        • eighty-six twenty-three says:

          I like the idea of simplifying the tax code, but I’m worried that by “simplification” he means “let’s cut taxes on the rich”.

          — Or, rather, I dunno if Trump specifically means that, but if we put Congress in charge of simplifying the tax code, that’s what’s going to happen.

          • Iain says:

            In a rare display of actually talking about policy, Trump released his tax plan during the campaign. This analysis from the Tax Policy Center has the details. Here’s the abstract:

            This paper analyzes presidential candidate Donald Trump’s tax proposal. His plan would significantly reduce marginal tax rates on individuals and businesses, increase standard deduction amounts to nearly four times current levels, and curtail many tax expenditures. His proposal would cut taxes at all income levels, although the largest benefits, in dollar and percentage terms, would go to the highest-income households. The plan would reduce federal revenues by $9.5 trillion over its first decade before accounting for added interest costs or considering macroeconomic feedback effects. The plan would improve incentives to work, save, and invest. However, unless it is accompanied by very large spending cuts, it could increase the national debt by nearly 80 percent of gross domestic product by 2036, offsetting some or all of the incentive effects of the tax cuts.

          • neciampater says:

            Given how much the wealthy pay, I think you may do better griping about spending on net or the injustice of how much the wealthy pay as it is.

          • wysinwygymmv says:

            “Given how much the wealthy pay, I think you may do better griping about spending on net or the injustice of how much the wealthy pay as it is.”

            Oh yah, I hear the wealthy are really struggling to keep food on the plate these days…

            http://www.outsidethebeltway.com/wp-content/uploads/2009/07/effective-tax-rate-charts.png

            http://www.pewresearch.org/fact-tank/2016/04/13/high-income-americans-pay-most-income-taxes-but-enough-to-be-fair/

          • wysinwygymmv says:

            “Given how much the wealthy pay, I think you may do better griping about spending on net or the injustice of how much the wealthy pay as it is.”

            Posting links seems to have gotten my comment disappeared, but this is a combination of begging the question and false on its own terms (effective tax rate on the top 1% of earners seems to be at an all-time low since the establishment of the federal income tax in the first place).

          • Jiro says:

            The top marginal rate immediately after the Revenue Act of 1913 was 7%, so you must be asserting that the effective tax rate on the top 1% of earners is under 7%. I find this unlikely.

          • Mary says:

            The top 1% pay nearly half the income taxes paid in this country.

            The top 20% pay nearly 85% of all income tax paid in the country.

            Is there a point at which it is acceptable to cut the income tax on the high income people?

            (Note: not the wealthy. If John Doe spends his entire career building up his business, and after forty years sells it, it’s very likely he will be in the top 20, if not top 1, percent, but he’s not wealthy.)

      • sflicht says:

        Good choices except for infrastructure (still not a good idea when proposed by a Republican) and tax deduction (for the reason Aaron says).

        EDIT: If Trump actually does the infrastructure via removing red tape (environmental impact studies, zoning restrictions, etc.) as opposed to directing the investment at the federal level, it’s fine. That seems unlikely, though.

      • Brad says:

        I think this is probably the least destructive policy on the list:

        Propose a constitutional amendment to impose terms limits on all members of Congress.

        Trump should put all his not insubstantial energy into trying to make it happen.

        • HeelBearCub says:

          That is an awful idea.

          If you want to give lobbyists and the bureaucracy more power, institute term limits.

          • eighty-six twenty-three says:

            I think it’s a good idea. Congresspeople apparently spend a lot of their time fundraising; if we assign a term limit, then their last term will be spent doing no fundraising, which is surely an improvement. My ideal scenario would be a term limit of one, so that nobody in Congress would spend any time fundraising.

          • Brad says:

            I agree it is an awful idea, but it is highly unlikely to happen as a constitutional amendment requires 2/3rds votes in each house of congress and then ratification by 3/4rs of the states.

          • HeelBearCub says:

            @Brad:

            Fair point.

            But, it is one of those awful ideas that everyone seems to embrace. It’s the kind of impossible thing that just might happen.

            And to the extent that stoking the fire for it sheds more heat than light on the issue, I think it has further deleterious affects on political understanding.

          • lemmycaution415 says:

            That is what happened in California.

          • Moon says:

            TI thought I put this comment in here before, in some other thread. But anyway, term limits could possibly mean that politicians would be even more beholden to lobbyists, because they would be even more ignorant of how laws are made, what laws are on the books, and how the industries affected by laws are conducted. Congress members would also be free to screw over the voters even more, because they would never have to worry about whether voters would ere-elect them, thus being free to serve the industries and lobbyists who are promising them a nice job somewhere in the industry that the lobbyists works for, once the short term of office as a Congress member is up.

            Trump is the type of personality who would want term limits for everyone except the president– at least while he is president. That wouldn’t necessarily mean that he is the Savior of the People or that he was “draining the swamp.” It could mean quite the opposite. The guy has never showed any interest in or regard for anyone except himself– and his children, but only when they were grown up enough to help him out in various ways.

          • Controls Freak says:

            it is highly unlikely to happen as a constitutional amendment requires 2/3rds votes in each house of congress and then ratification by 3/4rs of the states.

            …maybe if we get 3/4 of the states to pass a law saying that they’ll ratify any constitutional amendment which wins a national popular vote… 🙂

          • Gobbobobble says:

            Congresscritters serving 40-50 years in the same gerrymandered seat is an awful idea.

            Term limits don’t need to be ridiculously short. Just as a quick shot in the dark, allowing 5 terms as a US Representative and 3 as Senator gives you 28 years on the Hill if you’re qualified enough to nab both seats in your career. That should be plenty for anyone interested in anything other than their own power.

            And it’s not like federal newbies have no exposure to sausage-making. A large number have experience in lower levels or in law.

          • Deiseach says:

            On the other hand, you have Representative Smith serving forty or fifty years in office, and then handing over their seat to a family member to succeed them. This tends to reduce choice for the constituents and cut off “new blood” or a change/reform, because the Smith organisation will have the clout and local know-how to see off any challengers within their local party and any rivals outside it (there are certainly examples in Irish politics where ostensible party colleagues have been busy knifing one another in the back over running mates in elections, and I’d be very surprised if American politics were much different).

            Term limits would also be one way of dealing with embarrassments such as the locals stubbornly returning a crook to office in every election. Again, an Irish example is Michael Lowry who was kicked out of his party for reasons, ran as an independent, and has the local vote well sewn up so he keeps getting elected. Now, you may well say if the people of his constituency want a crook to represent them, they’re entitled to vote for him, and that is so – but it certainly doesn’t do anything to discourage bribery and corruption if you know you won’t lose anything by being found out.

        • Eric Rall says:

          My current favorite term limits idea is to prohibit consecutive terms but allow any number of non-consecutive terms. It covers or at least mitigates what I think are the three strongest arguments for term limits:

          1. Running for office while holding office creates conflicts of interest
          2. Structural advantages of incumbency make elections less competitive
          3. Long-term officeholders come to represent the intuitions they’re part of more than they represent their constituents

          While also mitigating two of the biggest disadvantages of term limits:
          1. Removing successful and experienced legislators from the talent pool of potential candidates
          2. Creating artificial last-period problems in cooperation games between candidates and constituents, and between legislators and other legislators

          • HeelBearCub says:

            That only further cements the necessity to be either:
            a) Someone who is employed in the hopes that they will do the employers bidding when next elected.
            b) Be independently wealthy.

          • Moon says:

            We will see soon how it works out for an independently wealthy person to be a high level public official soon. Optimism is not warranted.

    • LCL says:

      Best:
      Appoint SCOTUS justice – vacant seats at any level – especially the SC – are bad for the judicial system
      Infrastructure – hoping he makes this his signature legislation
      Deport criminals – if he wants/needs to make an immigration move, this is the one to make
      Cut regulations – although it matters a lot which regulations he decides to cut
      School choice – status quo in U.S education is pretty bad, seems as good an idea for a shakeup as any

      For anyone just hoping he doesn’t do much while in office:
      Impose term limits – pushing for this antagonizes people he needs onside in order to get anything done
      Ban officials from becoming lobbyists – ditto

      Worst:
      Child/eldercare subsidy – this sounds potentially ruinously expensive
      Set foreign policy – the less attention he pays to foreign policy the better
      Renegotiate/scrap trade agreements – deals aren’t that bad in the first place; “renegotiation” is a delusion and will fail; makes the U.S. an unreliable partner going forward; other countries will step into the void on trade leadership and we won’t like the results

      • Murphy says:

        Re: the regulation thing, I was under the impression that the promise was that new regulations required twice as many old repealed. I don’t remember it mentioning that he’d be picking them…. which is probably a fairly decent approach. Want a new reg? find some irrelevant dross on the books that nobody has benefited from for a hundred years.

      • Gobbobobble says:

        My view has been that if he can actually accomplish term limits and jamming the lobbyist revolving door, I could forgive a large amount of policy fuckups below the level of nuclear tomfoolery or actual pogroms.
        And if he does literally nothing else in 4 years in office other than pass those two things, it will have been a successful presidency for American democracy.

        • Moon says:

          Term limits could possibly mean that politicians would be even more beholden to lobbyists, because they would be even more ignorant of how laws are made, what laws are on the books, and how the industries affected by laws are conducted. Congress members would also be free to screw over the voters even more, because they would never have to worry about whether voters would ere-elect them, thus being free to serve the industries and lobbyists who are promising them a nice job somewhere in the industry that the lobbyists works for, once the short term of office as a Congress member is up.

          Trump is the type of personality who would want term limits for everyone except the president– at least while he is president. That wouldn’t necessarily mean that he is the Savior of the People or that he was “draining the swamp.” It could mean quite the opposite. The guy has never showed any interest in or regard for anyone except himself– and his children, but only when they were grown up enough to help him out in various ways.

          • Gobbobobble says:

            I don’t think the bit about Trump, while accurate, is particularly relevant given that Presidental term limits are already enshrined in a constitutional amendment. That’s not going away any time soon.

            Your point about lobbyist power is valid, though. There’s a certain amount of Deep State infrastructure that is both necessary to keep the country going and troubling in the relative lack of accountability. It’s a hard balancing problem.

            This is where jamming the revolving door (and general anti-bribery laws) is supposed to play in, though. If taking that cushy job after you’re done in politics is illegal, then it’s not as strong an incentive to play favorites.

            Furthermore, we don’t need term limits to be egregiously short. Just enough to prevent ridiculously long stints in the same gerrymandered seat. I’m not committed to these exact numbers, but as I spitballed downthread, a limit of 5 terms as a US Rep and 3 as a Senator still leaves up to 28 years in Congress. If you put in ~10 years public service at the state or local level, start your time in Washington in your mid thirties, get out in your mid sixties, then by the time the 5-year prohibition expires you’re at retirement age. And, as I just found out, you’re already eligible for the Congressional pension when you leave, so don’t even need to worry about finding work afterward. You can still make a career out of politics, it just sets the bar higher to earning it. And allows more churn so we get more new blood mixed in.

            In my philosophy, a primary role of democracy is to prevent power from accumulating in individuals, families, socio-economic strata, professions, whatever. Everyone gets one vote, which is equal to everyone else’s. I have a hard time seeing a 25-30+ year term in the same office as being about anything other than personal power, so I am opposed to it from this foundation. The part where lobbyists *also* have too much power is a related problem that we should be striving just as hard to solve.

            I personally would support even shorter term limits on principle, but the particulars get hairy and the side effects are severe enough that I acknowledge it’s just not feasible. We’d need a very different set of political machinery to make it work, so the more generous limits are, I think, a fair compromise.

            Now, all that said, I highly doubt Trump will actually make good on this promise. Especially with that jackass McConnell running the Senate. But, especially after that giant shitfest of a campaign, I’ll take whatever shred of hope I can get for anything legitimately good to come out of the next 4 years.

          • Brad says:

            @Gobbobobble
            What do you think the current balance of power is like between the executive and legislative branches? Which way do you think it is trending?

          • Gobbobobble says:

            Hard for me to say, since for the majority of my politically-aware life the GOP/Tea Party’s congresscritters have been obnoxiously obstructive. There’s been a definite trend toward the executive as the legislative shirks its responsibilities and the popular consciousness ascribes more and more importance to the executive, both of which I consider bad things.

            In my perfect world, the President would be Commander-and-Ambassador-in-Chief, whose main domestic role would be knocking heads together when Congress can’t agree on things (“arbitrating” is too neutral a term since the prez would be well within their rights to favor their side). But then I think we’ve de-devolved (is “evolved” an actual term for moving power up the chain?) too much nitty-gritty responsibility up to the Federal level and that political-parties-as-entities have obscenely too much influence, so there’s my biases. Alas, with the current political machinery the executive can’t be unilaterally trimmed down without something breaking.

          • Mary says:

            ” There’s been a definite trend toward the executive as the legislative shirks its responsibilities”

            Please be more specific. Are there specific laws you think they should pass, or is it just that the more laws the better?

        • Edward Scizorhands says:

          Voting is supposed to be a check on political power, not a grant of it.

          • Gobbobobble says:

            Sorry, would you mind expanding on this? I agree with the statement, but don’t see that as being a pro-unlimited-terms or pro-lobbyist argument.

      • Cadie says:

        The child care and elder care thing isn’t a subsidy – it’s a tax deduction. If you pay $5000 on child care over the course of a year, you get to deduct $5000 from what part of your income you’re taxed on. They don’t actually pay part of your care expenses… the people who don’t itemize on their tax return because they don’t have enough non-standard deductions to do so won’t benefit, at least not much. The middle class will get a nice break on their taxes, the poor won’t get anything, and it’s not enough of a break to really make a difference to the rich.

        So I’m not really enthused about it – the benefits go to people who do benefit but don’t really NEED them as desperately as the poor do. But it’s a step in the right direction and mostly harmless, so I think it’s a net good.

        • Cliff says:

          It’s actually a phenomenal idea. We want to encourage the most productive people to both have children and work, and this would do that. Lots of women who make 6 figures stay home rather than pay for 2 or 3 kids to go to daycare- or forgo kids. And why shouldn’t childcare be deductible? It’s 100% a business expense. You can’t work and take care of kids at the same time. Nor do we want to encourage low-earning women to stay in the workforce when their time is better spent raising their children.

          By the way it increases tax revenue! More women working, more child care providers paying taxes- it’s a win win.

          • Cadie says:

            I’m in agreement that it’s positive – I just don’t think it’s as positive as it seems. If a woman makes 6 figures, she can afford day care anyway (assuming she’s either married/partnered or not living in an area where the cost of living is extremely high) and if she chooses to stay home or not have kids, it’s because that’s what she wanted to do anyway; reducing her child care costs by 20-25% via a tax deduction the following year won’t make a difference for most. It’ll only change the decision of the small number who were on the fence and using the tax credit as a tiebreaking factor.

            Most low-earning women with kids and jobs are working because they absolutely have to. The only way to get some of them to stay home is to ensure their families can still get food and housing if they stay home. And a lot of low-earning women DON’T have kids precisely because they can’t afford child care, which may be seen as good for the economy but it’s really cruel to them if they want children. Luckily, while allowing a tax deduction for child care does both groups little to no good, it also doesn’t add additional harm.

            Basically it helps out the struggling-to-make-ends-meet lower-middle class and “I’m struggling because I can only afford one fancy vacation a year instead of three” upper-middle class, while shrugging and doing nothing for the poor. I’m basically okay with this when the alternative is “do nothing” because of the benefits to the people who aren’t quite poor but are still having real difficulties. I think it would be much better if it was an actual subsidy without a tax credit, and on a sliding scale based on income and family structure/size, so the rich and almost-rich don’t get anything, the almost-poor get some, poor parents are able to go back to work, and poor non-parents have an opportunity to have a family. (The poor people who choose not to have kids because of financial difficulties are probably more responsible and somewhat better at planning and delayed gratification than average, and poor for other reasons like mild disabilities, low-quality education, or simple bad luck; giving them a helping hand is a really good idea and would have a high ROI.) But between a tax deduction and the status quo, the tax deduction is better.

          • Cliff says:

            Well this program is a win-win because it has all positive effects and no negatives. You seem to basically agree but think it only does a little good and a broader program could do way more. But a childcare subsidy for poor people does not have the same calculus as this proposal and is best considered separately. With a childcare subsidy for poor people you really have to weigh offsetting effects to determine if it is useful on net, whereas with this proposal you don’t.

            You also seem to minimize the scope of the problem. Childcare in most urban areas is $1,000-$1,500/mo. When you have three kids in childcare it makes little sense for a mother to work even if she makes $100k/yr, particularly if her spouse works. You’re looking at paying $25k in taxes and $35-45k for childcare. And of course there are plenty of mothers who make $60-100k doing really valuable, productive stuff who are impacted even more. We don’t want women to wait until they are well into their careers so they can afford to pay for childcare and have kids, we want them to have kids when they are young and healthy.

            That said, I’m with you in the sense that a $5k cap doesn’t do a lot for the above problem. But it’s a great start and when people see the benefits and additional tax revenue that results, hopefully there will be political will for increasing that cap.

  2. Dabbler says:

    What do people think of the decision to avoid lobbyists? On the face of it it looks like a very good thing, regardless of the incompetence of how it was formed. That being said, the cynic in me has learned by now there is a very good chance lobbyists by another name will get in.

    Thoughts?

    • Alsadius says:

      The problem is that you need experts, and there’s not many places to find experts on, say, banking other than the banks. So you might avoid lobbyists, but if you’re hiring VPs from Citi and Goldman instead, is that really an improvement?

      • hlynkacg says:

        That’s pretty much my take as well.

      • onyomi says:

        But one only needs experts if you intend to get involved. If one thinks, as I do, that the federal government gets involved in way too many things, then one also doesn’t need those experts.

        The idea of term limits and limitation of lobbying is one of the more interesting and surprising ones put forth by Trump. I think the ultimate idea is to push things away from creating a “revolving door” world of people who spend their whole lives in DC, switching back and forth from government jobs and lobbying/consulting jobs for people who make money off the government. The DC region has been booming, economically, since the housing crisis, which is really pretty Hunger Games-esque, in my view.

        Realistically, I am very pessimistic about Trump or any other administration’s ability to do much about this any time soon. Any simple rule will just be got around one way or another, and, indeed, must be got around, since, as you say, the lobbyists are playing a vital role, given the current system.

        The only way to change that revolving door culture of career politicians would be to drastically downsize the size and scope of the federal government. And there’s so much concentrated incentive for so many for that not to happen (the even bigger incentive on the part of everyone else, though great, is too diffuse and inchoate).

        • Murphy says:

          Imagine a government trying to write regulations on internet communication and cryptography when nobody in the room making the decisions has any clue about what public key crypto even is because someone has banned anyone who’s worked in software or computer science from taking part. (of course that does happen in various countries with people who have no idea what a cryptographic key even is trying to make laws about them)

          it’s hard to write coherent regulation of an area without people who are extremely experienced in the field. Those people tend to be employed by the companies working in the field.

          I think cutting down on lobbyists is an excellent aspiration but may hit the rocks of practicality.

          Why would a smaller administration have less of a revolving door? If 50% of a department of 10 cycle out into high paying banking jobs or if 50% of a department of 100, either way half the people running things are cycling out.

          • onyomi says:

            I would agree that blaming lobbyists is sort of like blaming accountants for the overly complex tax code. If the tax code were less complicated, we wouldn’t need so many tax preparation accountants, but, given the system, they are actually helping, not hurting.

            I don’t think, however, if we had 90% fewer areas of Federal regulation and 90% fewer lobbyists, that everything would be the same, just scaled down 90%. Maybe the “revolving door” phenomenon would still exist to some extent, but sometimes a quantitative difference leads to a qualitative difference.

    • gbdub says:

      Lobbyists get a bad rap. At the core of it, a lobbyist is just someone paid to live in Washington and go advocate on behalf of some cause or other to elected officials. Like, “We care a lot about environmental policy, but can’t stay in Washington all the time, so we’re going to pay Bob to go there with a big box of research and policy proposals to plead our case”.

      Elected officials are extremely busy and can’t be experts on everything – without lobbyists it’s a good chance most causes get ignored, or uninformed choices are made, or Congress just makes all decisions based on citizen letter campaigns which – go look at a CNN comments section for a good idea on how that goes.

      Obviously there’s a lot of potential for abuse, but it doesn’t have to be inherently bad. And as Trump is discovering, anybody who’s anybody in Washington has probably done a bit of lobbying (it’s a great way to build social connections for political careers).

      I’m not sure a blanket ban is worth the potential downsides.

    • keranih says:

      As pointed out, the issue with lobbyists isn’t what they do, it’s that it’s a specialized skill (“successfully schmoozing with congresscritters” isn’t something any knucklehead can do) in a very high cost-of-living area, so demand is high, and established profitable stakeholders have better bargaining power than, oh, Joe from Greenville City Sanitation.

      Also – who do you want advising the congresscritters on healthcare reform, the MD or the civil engineer? And who do you want advising on highway revisions?

      As for your cynicism, I think it is well founded. Supposedly the Obama administration said “no lobbyists, period, except for waivers in special circumstances” and then proceeded to write a whole wackton of waivers.

    • Nyx says:

      Lobbyists are often a lot more knowledgeable about the law and about the industries it regulates than the average Congressman. Congressmen would not give lobbyists the time of day if they didn’t offer any value. This gap in knowledge is only going to increase if term limits are introduced.

      So the real solution is not to remove lobbyists (who serve a real purpose, but do so in a way that creates conflicts of interest), but to increase funding for congressional resources that can provide impartial and useful research. Of course, this involves spending money. The advantage of lobbyists is that the cost of research is outsourced to private industry. But that’s also the disadvantage.

      • LCL says:

        This is the situation exactly. I’d add that “impartial and useful” research doesn’t get funding because, to a politician, “impartial” and “useful” are often contradictory. From a politician’s point of view, a major role of lobbyists is to provide defensible evidence to back up what the politician wants to do, and to fill in the policy details the politician doesn’t have time or expertise to figure out.

      • Garrett says:

        Isn’t this what Congressional Hearings are supposed to be for? Call panels of experts, ask the questions which appear to be decisive, get answers, and do so on the record so that anybody who’s argument wasn’t represented can write in afterwards?

        • Kettle says:

          As a sort-of-lobbyist that works in DC, I felt the need to register and make a late reply to this comment.

          95% of hearings (there are real, legitimate exceptions) consist of the majority calling in lobbyists, think-tankers and/or sympathizers to officially support the majority’s view on the record. The minority usually gets 1, maybe 2, token dissenting voices that are either ignored or harangued by the majority (while the minority either ignores or harangues the majority witnesses).

          Both parties do this all the time. There are some exceptions, and the dissent usually gets at least a token voice, but these days hearings are generally a mockery of their intended purpose.

        • Trofim_Lysenko says:

          The degree to which hearings have become more “speechings” has been a running complaint/joke for decades, as Kettle noted.

          Tune into C-Span sometime for as long as you can stomach it.

      • sflicht says:

        What about lobbyists for unlovely foreign governments like the Saudi or Qatari monarchies?

    • eqdw says:

      Three things to consider about lobbyists that nobody seems to talk about:

      —-

      Lobbying the government is, historically, one of the big reasons why there is a government in the first place. Every single high fantasy book I can think of has a scene where someone lobbies the ruler. Hell, it’s in the Bible. The king Solomon cutting the baby in half story, the people coming to him to ask his wisdom are literally lobbyists. A large part of why we elect executive rulers in the first place is so that they can listen to everyone who would lobby them, and make wise, correct decisions.

      —-

      Let’s say the government is going to pass a law regulating (random example) the manufacture of concrete. How should they go about doing this? After all, congress and executive branch are staffed with primarily lawyers, not chemists, not construction foremen. Given that they are going to pass a law, how should they decide what law to pass.

      Most peoples’ gut instinct is likely to be something like “They should spin out a committee on concrete manufacture, that committee should do research, aggregate their findings, and present it to congress”. Except that just kicks the can down the street a bit. If congresspeople are not qualified to make decisions on concrete manufacture, then they’ll Dunning-Krueger the research process as they are not qualified to evaluate which research sources are good ones.

      A different way they can do it. They can say “we are passing a law regulating concrete manufacture”. Then they can wait for everyone who has strong opinions on this subject to come to them and share them. Construction companies will lobby the government, talking about how they can’t compromise various traits about the concrete or else construction abilities will be impacted. Chemists come along and talk about the practical and environmental consequences of a given decision. Business analysts warn against decisions that would have grave economic consequences.

      The thing is, each and every one of these subject matter experts is going to have a vested interest in a given outcome, because that vested interest is what drove them to become a subject matter expert in the first place. Each and every one of them will come up with a mix of practical considerations and things that benefit them personally/professionally. It’s the government’s job to filter the signal from the noise.

      —-

      There’s often talk about restricting the amount of money one can spend on politics. The thinking is that money corrupts this process. When lobbyists can pay quid-pro-quo bribes to congressmen to get their ears, special interests get to dominate and the little guys (that’s you and me) get screwed.

      Reason through, for a second, a world in which spending money on lobbying is highly regulated. What happens?

      Well right now, the person who can afford the most bribes (in the form of dinners, flights to swanky weekend retreats, golf games, etc) gets the ear of the official.

      In the world where they’re not allowed to do that, how do individual congressmen/etc know who to listen to? For the most part, they’re going to fall back on human instincts and listen to the people in their social graph.

      If you think something is crazy important (and, assuming it is), you should be able to raise a lot of money from a lot of people who realize it is important. You can use that money to play the lobbying game and get the ear of a congress person.

      In a world where money-in-politics is highly restricted, the only way you get that congressman’s ear is by growing up in a rich white suburb of DC, going to private schools, joining the model UN, graduating with a masters from the ivy league, etc, etc.

      Which one of those two options sounds more achievable for random everyday Americans?

      • Cerebral Paul Z. says:

        “They should spin out a committee on concrete manufacture, that committee should do research, aggregate their findings, and present it to congress”.

        I saw what you did there.

      • So far as spinning out a committee, I think it’s a little worse than you describe. The incentive of the congressman isn’t to maximize the welfare of the country but to maximize his own political benefits, most obviously votes at the next election. So the committee is appointed to produce a report supporting whatever it is in the congressman’s interest to support.

        At least, that was my conclusion from my one summer in Washington.

      • Alex Zavoluk says:

        There is nothing wrong with private entities being able to lobby the government. It’s right in the First Amendment:

        “Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

        The problem comes when you have a “revolving door” between professional lobbyists and Congresspeople, with corporations and industries funneling large amounts of money into persuading Congresspeople that have way too much power, and Congresspeople expecting generous salaries to lobby their friends and former coworkers after they leave Congress. This leads to absurd amounts of graft, corruption, and cronyism.

        You should be able to find experts in a field, without having to rely on career lobbyists.

        • Spookykou says:

          The problem is, they don’t need scientists, they need career lobbyists. They need somebody who knows enough about the relevant industry, and relevant politicians, in the relevant positions, to make whatever it is they want to happen, actually happen. I am not sure if there are a lot of non-lobbyists who have the relevant skill set and connections to do the job of a lobbyist.

    • Squirrel of Doom says:

      From a cynical perspective, lobbyists buy legislation and regulation from lawmakers and bureaucrats.

      The core problem with that is that these things are for sale. As long as these highly valuable services can be bought cheaply, the market will continue. A company can be noble and refuse to participate, but it runs a high risk of competitors destroying through lobbying of their own.

      In the Game of Crony Capitalism, you lobby or you die.

  3. Anon. says:

    I guess you didn’t get to keep that $36k, huh? You could set up a bookdepository affiliate link as a replacement.

  4. superordinance says:

    What do our resident Trump supporters think of his appointments so far? I’m especially interested in your opinions on Sen. Jeff Sessions.

    A list of cabinet appointments and their dubious qualities so far, for those interested.

    Also, for those of you who were ambivalent about our president elect during the election, have you revised your beliefs at all?

    • Sandy says:

      I don’t know much about Sessions; I know some are howling indignantly about a comment he made many years ago about how he approved of the KKK until he discovered they smoked weed, but that strikes me as an obvious joke albeit in poor taste. Speaking of which, weed enthusiasts are complaining about Sessions too, but you could make smoking weed a death penalty offense for all I care.

      A lot of places are reporting that James Mattis is the frontrunner for Secretary of Defense, which would be a pretty great pick, I think — Mattis was a highly respected general and very accomplished. Secretary of State is really the one I’m keeping an eye out for, because that would confirm whether or not Trump is serious about his foreign policy agenda. Some of the contenders being discussed are just weird choices; I like Nikki Haley but she has no diplomatic experience at all, and Mitt Romney’s views on Russia are….different from Trump’s.

      • Winter Shaker says:

        Speaking of which, weed enthusiasts are complaining about Sessions too, but you could make smoking weed a death penalty offense for all I care.

        See, that sounds like part of why people are so aggrieved in the first place. You have a lot of people who enjoy the recreational use of a substance which, by any rational analysis is no more of a hazard to health and civilisation than the alcohol that is celebrated at the heart of American culture (and for which there is basically no good evidence that using the criminals justice system is even an effective way of mitigating its risks in the first place), and yet they have been subject to decades of legal persecution for it.

        Finally they start to get enough people to see the unfairness and cruelty of the situation to be able to win some state-level ballot initiatives to decriminalise, the outgoing president acknowledges that now that they have won California, federal level prohibition is ‘untenable’, and then Trump goes and appoints an ideological prohibitionist and they are understandably annoyed at the prospect of their chance at finally not being legally harrassed for their own no-worse-than-the-mainstream-legal-vices consensual enjoyment being snatched away from them.

        And your reaction is that you would be indifferent to them being given the death penalty? If that was intended as a joke that I didn’t get, then sorry. But assuming you meant it seriously (or as an only-slight exaggeration of a position you do take seriously) , can I ask to explain how you justify that position?

        • AnonEEmous says:

          the whole thing’s a joke

          well, session’s statement actually might not be, but Sandy’s definitely was. more broadly, he doesn’t care much about what happens to weed users.

          in any case, if Trump follows through on his ill-defined promise to make it a states’ issue, than Sessions has 0 jurisdiction anyhow, so far as I can tell. I guess he can do things in states that haven’t legalized it, but go talk to your governor about that

      • Reasoner says:

        I come in peace. I didn’t bring artillery. But I’m pleading with you, with tears in my eyes: If you fuck with me, I’ll kill you all.

        James Mattis

    • Deiseach says:

      What do our resident Trump supporters think of his appointments so far?

      Not a supporter, but on the only two names I’ve seen bruited about on social media:

      Re: Steve Bannon, as I understand it, the domestic violence charges were not “dropped when he and his attorney threatened his ex-wife into fleeing the state” but when his attorney pointed out if he were in jail, he couldn’t pay her anything – so that site is putting the worst possible spin on its charges:

      He was charged in February 1996 with domestic violence, battery and attempting to dissuade a victim from reporting a crime, but the case was dropped when Ms. Piccard did not show up in court. In court records, Ms. Piccard later claimed that Mr. Bannon instructed her to leave town to avoid testifying.

      Mr. Bannon, she said, told her that “if I went to court he and his attorney would make sure that I would be the one who was guilty.”

      Mr. Bannon’s lawyer, she said, “threatened me,” telling her that if Mr. Bannon went to jail, she “would have no money and no way to support the children.”

      Ms. Piccard said that she complied, fleeing with the two children she shares with Mr. Bannon until his “attorney phoned me and told me I could come back.”

      So less “I was fleeing with my children in terror from my violent ex-husband” and more “his lawyer pressured me about did I want money or vengeance?” Someone genuinely afraid of violence doesn’t have a relationship with the alleged threatening party’s lawyer where they follow instructions like that (and yes, I’ve had experience via work of such cases). They go to the cops or they tell their own lawyer “He’s threatening me, put that in the court docket”.

      The reports of the case are not edifying, but one at least of the charges involved a row where she spat at him and in return he grabbed her wrist and grabbed at her neck. Not chivalrous behaviour by any means, but also not beating her black and blue. They seem to have had a stormy relationship, to put it mildly, with a lot of fights over money and an acrimonious divorce.

      Re: Sessions, I have no idea. I’ve seen some indignant and offended outrage over something he’s supposed to have said along the lines of he liked the KKK until he found out they were into pot; nobody seems to have considered this might be an acerbic joke about ‘yeah, sure I think dope is worse than racism and that’s the only reason I’m not in the KKK’, instead they’re all saying “Admitted KKK supporter!!!!”

    • Deiseach says:

      And why someone would go as far as to spend millions of dollars so people don’t go jail for beating their pet dogs, and the closest answers I have gotten from interviews is that Forrest Lucas seems obsessed with the idea, “That a man has a god given right to do with, what he pleases to his property.”

      I don’t think you should beat a dog, but I also don’t think you should necessarily go to jail for it (if they’ve been cruel in a barbaric manner, sure, but unless they beat the dog to death with a brick or something, fine them and don’t let them keep animals instead of sending them to jail, there are enough people in jail already).

      Maybe Mr Lucas is not a sadistic animal torturer but holds the same opinion?

      Though I love this point about Peter Thiel:

      He believes that performing blood transfusions with the blood of young people will stop the aging process.

      Yes, Trump is so evil, he has appointed an actual vampire to his cabinet! 🙂

      (The blood thing is odd, I agree, but it appears to have some scientific basis to it so it’s not completely off the wall. Still – shouldn’t they be glad Trump is reaching out to the Vampire-American community?)

      • JulieK says:

        He believes that performing blood transfusions with the blood of young people will stop the aging process.

        I think I read that in a Heinlein novel…

        Yes, Trump is so evil, he has appointed an actual vampire to his cabinet!

        Could be a plus, seeing how vampires have been portrayed in popular culture lately.

        • newt0311 says:

          “Time Enough For Love” if I remember correctly. It was mentioned as the first method discovered for prolonging life and I don’t think it mentioned young people specifically.

          • lhn says:

            It first shows up at the end of Methuselah’s Children, wto which TEfL is a long-delayed sequel. The Howards flee Earth ahead of persecution for the secret of their long life, which secret is actually that they’re the result of a breeding program.

            When they eventually return, they discover that research into the “secret” has produced a result (which Earth still wrongly thinks was the Howards’ secret) that transfusing young blood extends life. And fortunately for the avoidance of a differently dystopian scenario, they’re able to produce it synthetically.

        • jaimeastorga2000 says:

          Could be a plus, seeing how vampires have been portrayed in popular culture lately.

          I don’t think Peter Thiel sparkles.

      • superordinance says:

        Yeah, the blood thing is honestly not that bad. I’m more concerned that he wants to reverse female suffrage.

        • Squirrel of Doom says:

          You will hopefully be glad to know he doesn’t:

          https://www.cato-unbound.org/2009/05/01/peter-thiel/suffrage-isnt-danger-other-rights-are

          Might as well copy his whole text here:

          I had hoped my essay on the limits of politics would provoke reactions, and I was not disappointed. But the most intense response has been aimed not at cyberspace, seasteading, or libertarian politics, but at a commonplace statistical observation about voting patterns that is often called the gender gap.

          It would be absurd to suggest that women’s votes will be taken away or that this would solve the political problems that vex us. While I don’t think any class of people should be disenfranchised, I have little hope that voting will make things better.

          Voting is not under siege in America, but many other rights are. In America, people are imprisoned for using even very mild drugs, tortured by our own government, and forced to bail out reckless financial companies.

          I believe that politics is way too intense. That’s why I’m a libertarian. Politics gets people angry, destroys relationships, and polarizes peoples’ vision: the world is us versus them; good people versus the other. Politics is about interfering with other people’s lives without their consent. That’s probably why, in the past, libertarians have made little progress in the political sphere. Thus, I advocate focusing energy elsewhere, onto peaceful projects that some consider utopian.

          • superordinance says:

            But he said that after saying that female suffrage made politics worse.

          • Squirrel of Doom says:

            If you can’t believe that someone believes X after they explicitly say ” I believe X”, I guess you’ll keep having that belief regardless of what anyone might say to you.

          • John Schilling says:

            But he said that after saying that female suffrage made politics worse.

            “Female suffrage made politics worse” and “Female suffrage should be revoked” are two different things.

        • Deiseach says:

          If he did want to take the vote from women, I think you should be concerned, but I also think that linked site is about on the level of accuracy with their charges, on the whole, as “Peter Thiel is a vampire”.

          Anyone who cannot differentiate between “whose” and “who’s” is not going to get my serious attention when they try to warn me the sky is falling.

          • Evan Þ says:

            But does he want to take the vote from men too?

            (“Suffrage ends! Women, minorities hardest-hit!”)

          • Furslid says:

            Evan, that reminds me of an essay by Spooner called Against Woman Suffrage. It’s an interesting read, and strikes me as classic internet trolling, a century too early.

            Women shouldn’t be allowed to vote because NO ONE should be allowed to vote.

        • MugaSofer says:

          It’s astounding to me that we’re still arguing without anyone linking to the primary source.

          Thiel (a libertarian) mentions women’s suffrage as one of the things that has made politics intractable for libertarians, alongside poor people. His conclusion is that libertarians must pursue their goals through … other means. (Ominous music plays.)

      • Squirrel of Doom says:

        The “blood thing” is quite promising anti aging science. Google “parabiosis” to learn more.

        Calling it vampirism when an outgroup member embraces it, doesn’t look on the side that likes to think they’re the science based ones.

        • Deiseach says:

          To be fair to the crathur that cut’n’pasted it together, they didn’t say Thiel was a vampire, that was me snarking at them. But as I said, I was greatly amused by the tone of breathless outrage about the enormities these monsters of depravity had committed, and for Thiel it was the statement that “he believes transfusions of blood from young people can reverse aging”.

          Given, as I say, the tone of condemnation, it’s pretty much implied in that that he’s the moral equivalent of a vampire (unless they think he’s going to round up healthy young people and force them to donate blood to be transfused into his veins – and in the current climate of hysteria, I wish I thought that was an unlikely scenario somebody is going to suggest is true!)

          • Squirrel of Doom says:

            That’s the Cycle Of Snark right there.

            A: Thiel is Level 1 silly.
            B: A said that Thiel is Level 2 silly!
            C: I heard A thinks Thiel is Level 3 silly!!
            A: See how I’m demonized by B and C!!

            (I was C this round. But in our hearts we are all C.)

          • Deiseach says:

            What is wrong with my brain that I think Peter Thiel – vampire is infinitely more appealing/cooler than Peter Thiel – (boring) Libertarian techie billionaire? 🙂

            Seriously – if they want gasps of disapprobation about Thiel, “he’s dull as ditchwater*” works much better than “hiding secret Transylvanian aristocratic haemovore antecedents? we demand to know!”

            *I don’t know if the man is dull or not, but I can’t even muster up the enthusiasm to go read something he’s written, so I must have gotten that impression from something.

    • keranih says:

      Wow, that list is – just from what I know about the people I know about – incredibly uncharitable when it is not just plain dishonest.

      For my thoughts – I approve of Bannon, Sessions, Lucas. Ambivalent on Thiel, Flynn. YUGE thumbs up on Rhee. Approve of Mattis, who hasn’t been actually named as nominee yet. The rest I don’t know enough about.

      Other things –

      The Lord’s Resistance Army is far less of a going concern than it was ten years ago. If the rest of that reddit post is as shallowly researched, it’s fairly crap. And from randomly clicking on subheading links where I know something about the particular point, I have found nothing to persuade me that otherwise.

      • superordinance says:

        >Wow, that list is – just from what I know about the people I know about – incredibly uncharitable when it is not just plain dishonest.

        I agree that some of the points are a little shaky, but the majority seem to be publicly recorded comments, official votes, etc.

        What do you find striking about Rhee?

        • keranih says:

          majority seem to be publicly recorded comments, official votes

          Completely free of all but the most uncharitable context. It’s really, really badly cherrypicked. And too many of the comments, the “publically recorded” part is “Yes, I heard him say that, and you can put it in writing that I said that he said that.”

          What do you find striking about Rhee?

          She gets children educated.

      • Moon says:

        wikipedia on Michelle Rhee

        “Rhee’s style of reform created a great deal of controversy. One common criticism disputes her assertion that, while a teacher, she dramatically increased students’ average scores from the 13th percentile to the 90th. It was a statement that could not be verified during her confirmation process for D.C. Schools Chancellor and was later proven to be a lie.[19]”

        https://en.wikipedia.org/wiki/Michelle_Rhee

        • keranih says:

          Moon, please go to the [19] source and find the part where that claim was “proven to be a lie”.

          That WP article is one of the more biased/personal pov articles I’ve seen on WP. I would use extreme caution and always check the WP references.

          • For anyone who hasn’t followed the link, it is to a story which contains no proof, or even claim, that Rhee’s claim was a lie, merely that she didn’t have, and didn’t claim to have, data to prove it was true.

            From the article:

            “Harlem Park’s school-level standardized test scores, although not proving or disproving Rhee’s assertions, show significant gains collectively among all three second-grade classes in 1993-94 and the three third-grade classes in 1994-95, the years she taught those grades. Three people who worked closely with her at the school and a student say the scores rose in the range Rhee suggested.”

          • Moon says:

            “she dramatically increased students’ average scores from the 13th percentile to the 90th.”

            How likely is it that she, or anyone, has ever done this? If someone says this, and has no data to back it up, why would you assume it was true? A rather ridiculous claim.

          • Spookykou says:

            I worked as a teachers assistant for a few years and the Teacher I was working with would often see serious gains in her standardized test scores. However the improvement she saw, while being the best in the whole school across all grade levels, was mostly taking bottom half of the percentage kids and getting to the 50-75% range, with small or no improvement for the few top performing students she had.

            I am not talking 10th percentile to 75th, I mean 20th to 50th 50th to 70th kind of gains.

            although not proving or disproving

            I don’t see how this is possible, unless she some how got one student from 13th to 90th(totally possible depending largely on the student) in her years teaching and they are thinking that muddies the water around what her average gain was, which it doesn’t, and which should be painfully simple to figure out.

            I am not sure if when she said 13th to 90th percentile was talking standardized tests or maybe she just meant grades. Grades are a lot easier. We had one teacher in 3rd grade whose students saw improvements like that in terms of grades, because she just gave all her students A’s on everything, and they tended to be the lowest performing students in all fourth grade classes. But even for tests, teachers can cheat and give their students answers on standardized tests, the controls against this are not very robust.

            I can imagine a few very convoluted situations where she could get anything close to what she is talking about without cheating, but none of them seem likely. Just statistically speaking it is very unlikely, schools don’t normally give a teacher all of the bottom 20th percentile students(unless she is teaching remedial, but they don’t even take the standardized tests), she could not average a 77 percentile jump when half of the students she taught should be in the 50+ percentile range.

            Edit: All of my information comes from the school system in Texas.

          • Careless says:

            half of the students she taught should be in the 50+ percentile range.

            You think that the average student at a public school in Baltimore is at the 50th percentile?

          • Spookykou says:

            Well, I worked in Texas, consistently one of the worst ranked school systems in the country. I worked at one of the worst schools in my district, half the students in my class were ESL, we had several students still taking the standardized tests in Spanish every year, and we still had a pretty good number passing(good for us anyways).

            I don’t know how bad her school was exactly, but I would be pretty shocked if it was dramatically worse than the one I was at. Note that 50+ just means 50 or greater, I will admit that the numbers might not be exact, but that was an illustrative example.

            Just to clarify what a 77 percentile average jump would looks like. In a class of 20 students, if she had ten who literally got 0s on the previous standardized test (this should never happen) and she took all 10 of those students to 100 on the test after a year in her class. The remaining 10 students of her class still have to average a 54 percentile jump for her to get to that 77 average improvement.

          • keranih says:

            RE: Texas schools – the last time I saw arguments about this was during the Walker recall shouting matches, regarding teacher unionization. So my data could be out of date, and I can’t find the article. But what I saw at that time was a comparison between Wisconsin student test scores and Texas student scores, first the raw average, then the average performance of Caucasian, AA, and Hispanic/ESL speakers (I don’t remember which).

            TL;DR – Wisconsin scores were better overall, but the Texas scores of Hispanic students were better than the counter parts in Wisconsin, as were the scores of AA students, and Caucasian students. Wisconsin’s just a very “white” state, and that drove all the difference.

            RE: Rhee’s claims of extraordinary achievement – I’d be a great deal more concerned about fraud on her part if she wasn’t – as quoted in that same WP article – hammering home on the notion that the school system doesn’t have that data (on the impact of individual teachers on their students performance) and that the system should have that data.

            We can sit and argue for quite a while on what are the best methods for objectively measuring student advancement, and it’s not my field, so I will bow to the experts on which is best.

            But I hold it is not acceptable to refuse to track and measure student performance, and to refuse to use those measures as part of how a teacher is promoted and paid.

          • Spookykou says:

            I was just responding to the particulars of a 13th to 90th percentile range improvement, which I assumed was in reference to standardized testing, which, at least in Texas, we do track, although I have no idea to what extent if any it is used in teacher evaluation.

            More generally I think there is some serious research trying to find clear methods for evaluating teachers, and our host, and by extension blind followers of our host like myself, are not sure that we have anything good yet.

            I imagine pushing an unfounded metric could be potentially more damaging than inaction, especially when we have a hard enough time getting teachers as it is. But I am all for trying to find a good metric, and just generally I think the education system is not in a good place.

          • Careless says:

            Oh, good lord. Your priors are really, really stupid, and you should be able to guess from the fact that you’re talking about an inner city school named “Harlem” that the scores would be worse than your stupid priors.

            Yeah, they had a 0% proficiency rate on one of the tests.

          • keranih says:

            @ Careless –

            NOT HELPING. Less of that, please.

            @Spookykou –

            I agree that some metrics are better than others, and I strongly suspect that we are going to eventually use a sub-optimal metric just because that one will be easier/cheaper to measure than the better one.

            But we are making zero progress now, by what people seem to be saying (including my relations in the field.) As you say, it’s not in a good spot. They should pick something non-horrible and try it, imo.

    • Well... says:

      On my blog I have an ongoing series of predictions about the Trump presidency. One is relevant here: his appointees will become more and more liberal over time. Sessions is an “anchor”, giving Trump plenty of room to shift leftward without his conservative supporters getting up in arms about it.

      My theory is that Trump wants a politically safe, dead-center administration, but knows he has to ease into it; if he jumped right in with the middle-of-the-road appointees he wants, his supporters would get suspicious. So he’s started off by peppering his appointees with a couple hard-right conservatives, just to keep the naysayers at bay. But they’ll eventually be replaced with moderates–maybe even before January 20.

      • dwietzsche says:

        Too much theory of minding. Until we actually see a leftward tilt in his picks, we should assume he has chosen people because he agrees with them.

        • Well... says:

          There’s no theory of minding at all. It’s purely extrapolating from existing patterns:

          1. We have years of evidence that Trump is fairly apolitical and fairly centrist when he is political. (With a few exceptions, granted.) The last 1.5 years have been an anomaly for Trump.

          2. We have plenty of evidence–especially during the last 1.5 years–that Trump plays politics in a strategic rather than an ideological way. (Again, exceptions granted.)

          3. We already have evidence that Trump plans to run a centrist administration, based on him walking back (WAY back) a lot of the appeals to conservatives he made during his campaign (e.g. on immigration, abortion, etc.).

          • dwietzsche says:

            Well, in the first place I just don’t share your assumption that Trump is a centrist. He appears to be a garden variety wingnut with maybe less resolution than your typical committed right winger. I’m willing to grant that this may be an incorrect assessment of his politics given the uncertainties, but only in the face of real evidence (i.e. more leftwing types on his appontments list).

            Even granting your premise that he wants to run a centrist administration, who would he have to pick to counterbalance the hard righters that seem certain to be folded into his administration? He’s practically going to have to resurrect Marx and then clone him six times.

          • Moon says:

            Dwietzsche, exactly. I don’t believe that Trump is any particular thing politically, or believes anything at all. He is simply a self-promotion machine. He is uninterested in government and will not be doing the work of governing, except maybe in the case of a very few issues that are important to him personally for some odd reason.

            He is surrounding himself with people whom he thinks will help him to be seen as glorious and wonderful, or who he thinks will help him to make money off of being president. Those are going to be the people who will determine what effect the Trump presidency will have. And so far they are pretty Far Right people.

          • Edward Scizorhands says:

            @Well…

            I believed that, too. But his cabinet and advisors seem awfully conservative so far.

          • Well... says:

            @Edward Scissorhands:

            Quoting myself:

            his appointees will become more and more liberal over time. Sessions is an “anchor”, giving Trump plenty of room to shift leftward without his conservative supporters getting up in arms about it.

            And further down…

            he’s started off by peppering his appointees with a couple hard-right conservatives, just to keep the naysayers at bay. But they’ll eventually be replaced with moderates–maybe even before January 20.

            @the rest of yall:

            I’m convinced that if you think Trump is a wingnut it’s because he wants you to. A real wingnut–a man who can’t turn the appearance of wingnutness on and off like a faucet when it benefits him to do so–doesn’t accomplish the things he has.

          • Reasoner says:

            I used to believe Trump was fundamentally a moderate. But it occurred to me that this could be false. Maybe he was a moderate in the past, but he got really pissed off by political correctness and took a hard turn to the right.

          • The Nybbler says:

            Maybe he was a moderate in the past, but he got really pissed off by political correctness and took a hard turn to the right.

            Trump doesn’t appear to even notice political correctness. Mostly he speaks as if it does not exist, though apparently someone told him to start replacing “black” with “African American” at some point (which just made him sound stilted).

          • Anthony says:

            Trump notices political correctness, but he feels no reason to obey its dictates. Which is one source of his popularity – he says things that ought to be discussed, but that political correctness has tried to prevent from being discussed.

            But he does notice it, and occasionally trolls the PC, like with his tweet about the theater being a safe space. He would have used different words if he really didn’t notice PC.

          • Evan Þ says:

            @Nybbler, he’s definitely noticed it – that’s what’s been providing most of the criticism he’s been fighting back against. He just isn’t giving into it one iota.

          • dwietzsche says:

            Trump obviously wasn’t always a wingnut. He’s relatively recent convert.

        • Moon says:

          Trump is not a convert to any ideology ever. He is a self promotion machine, pure and simple, saying whatever he thinks will get him more power and glory and money. Why anyone ever thought he had an ideology is beyond me.

    • BBA says:

      Re Sessions: The KKK joke is a meaningless distraction. But it’s much more shareable, likable, tweetable than the actual objections to him, which is why I suspect we’ll be hearing it every five seconds for the next four years.

      When Sessions was a federal prosecutor, he brought vote fraud charges against local NAACP leaders. They were all quickly acquitted by the jury and the controversy surrounding the case was a major reason why the Senate rejected his nomination for a judgeship in 1986. He also once said he’d decline to prosecute every civil rights case if he could. Now none of this “proves that he’s a racist”, as if that were possible, but it does show that he’s at best indifferent and at worst hostile to voting rights for African-Americans and antidiscrimination law. I see these laws as necessary evils, and I expect that four years of non-enforcement by the Sessions DOJ will show why they are necessary. If you see them as more evil than necessary, then you’ll probably have a more favorable view of him.

      But oh, he told a joke about liking the KKK once, can you believe it? My timeline is gonna go nuts!

      • superordinance says:

        I agree 100%, for the record. The less substantial accusations seem to get more press time, both from supporters and defenders of the appointees (even in this thread). More evidence for toxoplasma?

      • Iain says:

        Agreed. The KKK weed joke is a red herring. The Republican party already has a disturbing tendency to try to win elections by impeding black voters. There’s a good chance we’re about to see how far that can go with a sympathetic attorney-general.

      • Anonymous Bosch says:

        This comment sums it up for me on the race angle. On my various libertarian pet issues (surveillance, drugs, secularism) he’s uniformly horrible. I was hoping against hope that we had somehow threaded the needle of Giuliani and Christie to wind up with Cruz, but Sessions is pretty disappointing.

      • Anthony says:

        Sessions’ main critic is not a reliable source, having been sanctioned by a Federal Court for bringing a completely unfounded discrimination case.

        As a prosecutor, Sessions got the son of Alabama’s KKK leader executed, and the criminal case made a civil judgement which ruined the organization possible. So tarring him as KKK is utterly unfair.

    • John Schilling says:

      Agree with just about everyone else that the Reddit list is cherrypicked awfulness of no positive value.

      However, Hamm for Secretary of Energy, if true, is yet another indication that Trump and his team are operating in a state of extreme clue deprivation. Yes, I get the “oil billionaire to put those green energy wimps in their place” dynamic, but you make that guy the Secretary of the Interior or maybe have him run the EPA. The Department of Energy is really the Department of Nuclear Energy, Particularly The Kind That Explodes, Plus Some Other Stuff. And the “other stuff” was thrown in mainly so it wasn’t quite so blatantly obvious we have an entire cabinet department devoted to making sure we can always blow up the world on demand.

    • Space Viking says:

      Trump supporter here.

      Jeff Sessions: an excellent choice. This signals that immigration law is going to be enforced.

      Reince Priebus: I don’t entirely trust him, but a good pick overall. He’ll be useful in dealmaking with Ryan and McConnell to get Trump’s legislative agenda passed with sufficient sweeteners for old-style Republicans.

      Steve Bannon: Delightful pick. He’ll keep the administration (and Trump himself) aligned with the base on immigration, infrastructure, protecting the middle class, etc. Brilliant strategist, and a trustier alt-right man than Trump himself.

      General Flynn: good choice. He’s anti-ISIS and not Russophobic. Some say he’s narrow-minded, but to me that’s a signal that Trump will execute a more isolationist foreign policy, so I approve.

      Pompeo: don’t know much about him.

      And I’m very excited that Peter Thiel is involved: there’s a rumor he’ll be picking the head of the FDA, subject to Trump’s final approval. I cannot think of anyone who has ever lived more qualified to choose the head of the FDA than Peter Thiel.

      Overall very pleased!

      • bfwfb says:

        A few questions for you, based on the assumption that you count yourself among the alt-right – going off your Bannon comment.

        – How do you define alt-right?
        – What do you think of how others characterize the alt-right? (white nationalists, nazis, etc.)
        – Imagine that, four years from now, Trump has successfully overseen the implementation of what you consider to be a package of excellent alt-right style policies. What might these policies be, and why are they good for people?

        • Space Viking says:

          Sure.

          Look up “breitbart alt right milo guide” for an explainer that gets close enough, and addresses the issue of the 1488ers.

          As for policies, a close-to-ideal four years from now:

          The wall is under construction. The sanctuary cities have been defunded and, where necessary, prosecuted out of existence. Illegal immigration has slowed to a trickle, and the two to three million criminal illegals have nearly all been detained or deported. Legal immigration is sharply reduced from four years earlier, with a limited quantity of high quality immigrants vetted carefully for criminal records and terrorist sympathies.

          As a result, crime is down, and America is safer from terrorism. Many billions of dollars are saved each year as welfare payments are no longer made to illegals, and the flow of low-skilled legal immigrants, often welfare recipients, is slowing to a stop. The heroin epidemic is on the mend as the price shoots upward. Working class Americans (of all races, religions, etc.) are working again as competition from illegals and low-skilled legals is cut. The Democratic Party’s threatened permanent hold on the presidency is prevented by stemming the tide of left-wing voters imported both legally and illegally. If the Democrats want to win again, they’ll have to win with existing Americans, whose preferences will not be denied by a flood of foreigners.

          Scalia has been replaced with someone suitably constitutionalist, and the alt-right is on the attack in the culture wars. Both the racist, anti-meritocratic practice of affirmative action and free speech violations are under the gun beginning at public universities. Facebook and Twitter are under investigation for abusing their monopoly power in the form of free speech violations. Anti-competitive mainstream media giants like CNN that delude the public with little recourse to alternative news sources are also under antitrust scrutiny, and NPR/PBS has been defunded for its naked partisanship.

          Congress has passed Trump/Bannon’s trillion-dollar infrastructure plan, and the country is alive with construction. Aside from replacing infrastructure falling apart and in dire need of modernization, unemployment is low, and economic growth is high. This combined with the advantage of incumbency means Trump is reelected in 2020.

          Both corporate and individual taxes are lower than today due to tax reform, and energy prices have stayed low because of deregulation of the energy industry. The national debt is not yet getting any lower, but economic growth, not austerity, is the answer to that issue.

          A combination of lower taxes, deregulation of various industries, and protectionism is bringing industrial jobs and some service jobs back to America, though not all of them, since automation marches on. With protectionism consumer prices are higher and the wealthiest 1% are a bit poorer, but working class Americans are happy to have good jobs again, and epidemics of heroin, opiate abuse, alcoholism and suicide among that demographic are waning as they now have a reason to live. This new hope for the future, economic well-being, and childcare tax deductions are even encouraging Americans to have children again.

          ISIS has been all but destroyed by eviction from control of their territory: without territory, there is no Islamic State. Now they’re just another terrorist group and are bleeding recruits, not gaining them. Aside from destroying ISIS, no more regime change, no more foreign wars, no more foreign occupations, no more blowback, peace through strength instead. Most importantly, no more escalation of tensions with the Russians; let’s prevent nuclear war, not start one.

          Two regulations eliminated for every new one instituted, which will boost economic growth and create jobs who knows how much. I’m curious to see.

          And Peter Thiel is only vaguely alt-right, but I’m excited by his involvement for libertarian and transhumanist reasons.

          There are many more possibilities; that’s all off the top of my head. I can say, to my surprise, for the first time in decades that America seems to be on the right track again.

    • Dahlen says:

      Much of the list, particularly as it pertains to global warming, basically screams “conflict of interest”, even if you take it at 50% its stated truth.

      Then I learn that these people were those who were left over after the lobbyists had been ruled out, which, I’m now given to know, generally occupy such positions…

      ♪♫ Everything you know is wrong
      Black is white, up is down, and short is long
      And everything you thought was just so important doesn’t matter

    • suntzuanime says:

      That Trump would be appointing Republicans was already priced in. I don’t really follow the minor lore characters so I can’t really get more in-depth than that. Certainly I don’t trust “EnoughTrumpSpam” to tell me how horrible they are.

    • Reasoner says:

      Reminded me of this essay: Are Your Enemies Innately Evil?

      Once the “Trump is innately evil” hypothesis has been discarded, I can think of a few explanations for what’s going on here:

      * If you dig far enough, selectively omit, and play fast and loose with the truth, it’s easy to make anyone look bad. (E.g. Peter Thiel is one of the living people I respect most, but if all I read about him was those 4 bullet points, maybe I’d think he was crazy too.)

      * Reputable people are refusing to serve in the Trump administration (probably thanks to hit pieces like those generated by that sub).

      * A certain sort of person is attracted towards serving in the Trump administration. Someone who deeply dislikes the media, has anger management issues, has been smeared in the past (and can therefore sympathize with Trump), feels like a Washington outsider because the Washington insiders kicked them out for good reasons, etc.

      * The Trump administration is looking for nationalists, and nationalists are just worse people than globalists.

  5. Deiseach says:

    I don’t think the Trump survey will yield much, if any, useful information. I’ve already seen it linked on Tumblr with a call to troll it, so I imagine there will be a lot of “lizardman” answers.

    As to the job applications, on the one hand it does seem like he really didn’t think he had a chance of winning, but on the other hand, ironically, this really is a chance to get new blood rather than the same old establishment network in. He may actually be going to shake up the system perforce.

    And I’m already seeing minor conspiracy theorising (if it can be classed as a conspiracy theory) about the whole “Pence was booed at the ‘Hamilton’ show” being set up by Trump to distract attention from his settlement of cases about Trump University.

    The one thing I’m getting a share of enjoyment from here (no, not American liberal tears!) is the roasting our Taoiseach is getting from the bien-pensant over getting on the blower first thing to the Vice President-elect in order to lick up to the incoming administration. I don’t like the current crop of opportunists in power in Ireland and I do take malicious satisfaction in seeing Enda Kenny reaping the fruits of the (what he thought would be) easy, vote-winning social progressivism he sowed. He was waving the rainbow flags as visibly as anyone over the same-sex marriage referendum but now he’s being expected to demonstrate his gay rights cred is more than hot air when the rubber meets the road, and I like watching him squirming about it because I think he was deeply insincere about the whole thing – it wasn’t principle but an eye on the electorate pragmatism that ‘converted’ his opinions.

    For those of you who asked why am I, an Irishwoman, so interested in the American election results? For reasons like this – because had it been Hillary who won, Enda would just as much have been rushing in with the congratulations, reminders of the Irish connection, and would there be any chance of a start for the young fella with ya, like? Though given that she blew off Notre Dame for Paddy’s Day, probably that brown-nosing would have been received coolly. One of the Trump aides has said they intend to copy Ireland’s tax regime to entice back American industries, so this makes our rulers uneasy that all the multinationals with headquarters for tax purposes here may take flight back home and leave us cap in hand once again.

    • Alsadius says:

      The good thing about this survey is that it’s really tough to lizardman. They’ll probably just throw out most answers that have too many “Not a priority” in them, and pick between the answers that sound like they’re from people who mostly share his agenda.

    • Jacob says:

      The word I’ve seen is that Trump tweeted about the Hamilton thing as a distraction. I don’t think it was planned months in advance, I do think that he wanted a distraction and took it. Maybe he could’ve planned on when to settle the case a week ago to coincide with Pences theatre trip (I assume Pence got these tickets far in advance, dunno if that’s true)

      • keranih says:

        Maybe he could’ve planned on when to settle the case a week ago to coincide with Pences theatre trip

        Not even two weeks and we’re already replicating the “George Bush: Bumbling Moron or Evil Mastermind? Why not both?” narrative from the 2000’s.

        Ah, a wonderful time to be alive. Everything that was old is new again. It’s like everyone has become a conservative.

      • JulieK says:

        I thought the tweet about Hamilton was pretty dumb.
        But I guess whatever Trump tweets, his supporters will like it and his opponents won’t.
        (ISTR reading Obama saying, after he was elected, that he couldn’t carry his personal Blackberry anymore. Any chance that will happen to Trump?)

        • Wander says:

          Considering how much attention has been brought to political figures mixing private and professional communication? I think he knows to avoid it.

          • Moon says:

            Wander, you’ve got to be kidding. Those rules only apply to Dems. Hillary was lambasted with lies about pay to play, constantly for having a foundation that actually saves lives. Trump gets away with having a foundation that he uses in fraudulent ways to help himself.

            We are immersed in Right Wing propaganda that doesn’t find much fault with Republicans, even when they do far worse things than Dems– or even when the Dems do nothing bad at all, in which case lies are simply made up, accusing them of crimes.

          • pdbarnlsey says:

            I think Trump has rightly concluded that unwritten rules of the type likely to generate career-limiting scandals just don’t apply to him.

            Guy just settled a lawsuit for fraud after explicitly saying that his refusal to settle was proof of his innocence. He appears to have been conducting conversations with national leaders of an unsecured line. He used his private charity to pay off an investigating Attorney General and then amended to paperwork to lie about it.

            I think he’s still very much in “don’t shoot anyone on main street, but otherwise, do what you feel” mode.

          • Anthony says:

            Lies about pay to play? When she alowed the sale of one-fifth of the U.S. uranium production capacity to Russia while receiving over $2 million in donations to the Clinton Foundation? Which she didn’t report to Obama. You can’t call the accusations of pay to play “lies” and be taken seriously.

          • Spookykou says:

            Question only kinda related with how ‘pay to play’ any of that is.

            2 million dollars does not sound like ‘a lot’ in this context, is ‘the sale of one-fifth of the U.S. uranium production capacity to Russia’ not a big deal, or could she have held out for more money?

          • Iain says:

            It’s also probably relevant to point out that the State Department was one of at least nine federal agencies that had to sign off on the deal, and to the best of my knowledge there’s no evidence that Clinton had anything at all to do with the decision. Also, the US doesn’t actually produce much uranium, so 20% of US production is only like 0.4% of global production.

            The entire story here is: people who invested in a Canadian company that was bought by Rosatom also donated to the Clinton Foundation, around the time the sale went through (for loose values of “around”). Also, Bill Clinton gave a speech to a Russian bank around this time, and was paid for it.

            Here’s a Politifact article. (The general consensus around here seems to be that Politifact’s rankings might be skewed, but their writeups are pretty good.)

          • Careless says:

            Those rules only apply to Dems. Hillary was lambasted with lies about pay to play,

            Ok, I survived choking on my drink while reading that, but don’t do that again without a warning

      • Logan says:

        Why doesn’t he want us paying attention to the settlement? He settled because he wants to concentrate on the presidency. There is no new information, there was no admission of guilt, we know exactly why he settled and it has nothing to do with the case itself. Seems entirely routine to me.

        • pdbarnlsey says:

          Similarly, Hillary was in no way inconvenienced by the merely-procedural announcement from Comey that additional, likely duplicate emails had been discovered on a sex-offender’s laptop, since election campaigns operate in an atmosphere of perfect information.

          You honestly think a decision to settle, after announcing that you would never settle, conveys no information about the strength of the respective parties’ legal positions?

          • Spookykou says:

            I don’t really see how those two things are related, maybe you can expound on it some?

          • lemmycaution415 says:

            Trump and Trump University are horrible but I would settle the lawsuit as president elect as well.

          • onyomi says:

            It seems like there would be better reason to criticize him if he didn’t settle, but insisted on dragging out the case as POTUS (and I wonder how much the plaintiffs would like having that for a defendant…): it would seem like he was prioritizing a personal business dealing over what, for him, is a relatively small amount of money, ahead of the job of being POTUS.

          • Iain says:

            Trump spent the entire campaign vowing not to settle because he was innocent. Now he settled. Even if we accept for the purpose of argument that he was innocent and would have won (which for the record I find unlikely), a 25M payout is bad publicity for the Trump image.

            Given the choice between a president who has paid 25M to settle a fraud lawsuit, and a president who drags out his fraud lawsuit in court, I agree that it is better for the country that Trump settled. But that’s not incompatible with Trump trying to distract the public from the whole issue.

          • pdbarnlsey says:

            Typically, a legal settlement is the expected value of the damages award net of transaction costs and adjusted for any differences between the parties in risk aversion. If you do not settle, you believe that the expected value of any damages award, taking into account costs awards, approaches zero.

            This case is a bit more complicated, because there are also real reputational issues associated with settlement, as well as potential incentives to future litigants, but these mitigate against settling if Trump believes he will ultimately be vindicated.

      • Deiseach says:

        What Pence should do is smile big and say he really enjoyed the Reynolds Pamphlet song 🙂

        Talk about a storm in a teacup – I have no idea why he turned up for this show or who gave him tickets or what happened. A bunch of luvvies and a musical theatre audience take the opportunity to think they’re actually the revolutionaries they portray on stage and everyone gets their knickers in a twist.

      • Careless says:

        The word I’ve seen is that Trump tweeted about the Hamilton thing as a distraction.

        So he got his VP to buy tickets in advance knowing that the cast would go out of their way to castigate the VP elect on stage, and timed it to take attention off the settlement? This sounds like a Scott Adams “master manipulator” theory more than a left-wing one

  6. Fossegrimen says:

    I’d like to continue a discussion from the last fractional open thread.

    The start was this:

    BBA:

    November 19 is International Men’s Day, a “holiday” apparently created for the sole purpose of getting anti-feminists to stop whining about International Women’s Day.

    In what is almost certainly a complete coincidence, November 19 is also World Toilet Day.

    Then DrBeat went:

    Would you consider it “harmless snark” to talk about how International Women’s Day proves that caring about women is stupid and terrible? Or would that make you upset and demand concessions from someone who said that?

    After which I weighed in with a somewhat terse and inconsiderate remark that I probably shouldn’t have. I’d like to elaborate my position:

    Imagine that you are walking along on the savanna of the ancestral environment and suddenly your friend Gahoog jumps out from behind a rock and goes BLRBLRBLRBRLR!

    Your expectation, or for this discussion prior, is that things that jumps out from behind rocks are dangerous. You also know that Gahoog is not dangerous and the mental conflict makes sure hilarity ensues.

    This seems to be rather deeply rooted. Monkeys do the same thing, as do dogs, and it’s probably why babies enjoy playing peekaboo. (At least this was the consensus in the early 1990s when I used to read a lot of evo-psych journals.)

    Let’s move on to a childrens joke:

    The presidents of USA, Finland and Sweden are aboard a plane and suddenly they are told that they need to jump out, but they only have two parachutes.

    The president of the USA says that as the president of the most powerful nation, he should have a parachute.

    The president of Sweden says that since he’s the president of the most intelligent nation, he should have a parachute and proceeds to grab one and jumps out of the airplane.

    The American president starts telling the Finnish president how sorry he is that there are no more parachutes when the Finn interrupts with “That’s alright, the most intelligent president just jumped with my backpack”

    The reason this is funny is that your prior is that the most intelligent president is capable of knowing the difference between a backpack and a parachute and when he proves not to be, this prior is violated. If your prior is that there is no way a Swede is capable of knowing the difference between a backpack and a parachute, you will just sit stupidly waiting for the punchline.

    (I know that Sweden doesn’t have a president, but I changed some countries around in order to keep the joke on Scandinavians since that’s the only population it’s still safe to make jokes about. Feel free to substitute king or prime minister or the country of your choice.)

    Now, let’s look at the snark at the top:

    The reason this works is that your prior is some variant of “Men are running the world” and “Toilets are depositories for faeces”. Conflating the two violates the prior and makes the whole thing funny. To make this not-funny, you would have to have a prior that men are only fit to be shat upon. (I guess it would also be not-funny if you have the prior that toilets are secretly running the world, but in that case, I hear our host is a well recommended psychiatrist and has reasonable rates.)

    All this leads to:

    Any group of people are fair game for snarks and jokes as long as:

    a) The joke is actually funny, or at least the teller of the joke clearly assumes it to be and
    b) the punchline is predicated on a positive prior.

    i.e. if the punchline is that the Swede suddenly outsmarts everyone, it’s not OK because the assumed prior is that Swedes are too stupid to outsmart people.

    This very simple algorithm removes all the need for considerations about punching up/down or whatnot.

    • JulieK says:

      What if the joke-teller thinks men run the world, but some of the listeners disagree?

      • Fossegrimen says:

        If the joke-teller operates on a positive prior and the audience does not, I think that the audience might benefit from some soul-searching and that the joke-teller is fine.

        • YehoshuaK says:

          The positive prior being that men run the world? When I replace the word “men” with the word “Jews,” getting the sentence “Jews run the world,” I do not find myself regarding that as a positive prior. An envious and dangerous one, rather.

      • neciampater says:

        During Thursday Night Football, a commentator said one of the quarterbacks talks presidential. A friend noted that he would vote for a quarterback as they have leadership skills. I quipped that they are also usually white.

        The audience was a friend and a brother. I can imagine my remark not going over well with a different audience.

        I enjoy the MRM and I participate in Movember. I am looking forward to seeing The Red Pill and American Circumcision documentaries.

        But I hope the movement doesn’t move toward the political correct side of things where you can’t laugh at a joke about men’s day and toilet day.

    • skybrian says:

      There’s a similar theory that laughter is an all-clear signal, indicating that something that looks weird and possibly threatening is shown to be harmless.

      This suggests other failure modes: the threat is not unexpected enough so it fails, or the all-clear isn’t reassuring enough.

      For a good friend, the all-clear tends to be pretty easy. For a stranger, it can be hard.

      There’s also a bullying sort of joking where people make some threatening comment and insist that it’s harmless. Which isn’t how it works. If people aren’t reassured, the joke fails.

      There’s nothing objective about this – it’s all state of mind.

    • Incurian says:

      I have it on good authority that Finns are not Scandinavians.

    • thepenforests says:

      I think I disagree, actually. Yes, all humour requires violated expectations to some degree or another. But I also think that humour has a status regulation function that affects which kinds of violated expectations we’ll find funny.

      Take the airplane joke. I read it very differently than you. My analysis would be that the Swedish president violated social norms by talking about how intelligent he and his people were. He was being arrogant and trying to claim status, and we don’t like him for this. So when we find out he jumped out of the plane with the backpack, we’re pleased because he got his comeuppance; he was put in his place. And he got put in his place in exactly a way which proves that he was full of shit the entire time; this is particularly enjoyable. Yes, the joke rests on a violated expectation in that you would expect an intelligent person to know the difference between a backpack and a parachute, but we don’t ever actually think the Swedish president is intelligent – rather, we suspect he isn’t, and we’re glad when that suspicion is confirmed. The only extent to which we had a positive prior on the Swede’s intelligence is that, even if we didn’t think he was a genius, we expected him to have the bare minimum of intelligence required to identify a parachute, but it turned out he didn’t even have that (spectacularly confirming our suspicions that he was being cluelessly arrogant and didn’t deserve his claimed status).

      Under this view, humour (or at least some humour) is a way of ensuring that no one gets too much status, or that even those with extremely high status can still be brought back down to earth, so to speak. We all laugh if the King farts, but we couldn’t care less if some peasant does.

      Anyway, I see DrBeat’s response as operating in the context of having seen a lot of feminists make jokes at the expense of men specifically in an attempt to “put them in their place”. Men are seen as the high-status group with all of the power, and worse this status is viewed as particularly undeserved. So the natural thing to do is to make fun of men to bring down their status. I actually think this is pretty understandable behaviour, and I can empathize with the feminists who do it, at least to some degree.

      My problem with this behaviour is that it uses a kind of essentiallist, category-based thinking that I really dislike (and I think is at the heart of many of my issues with feminism). Individual men are not “Men”. Just because “Men” have all the status and power does not mean that any individual man will have those things. There are lots of men out there, myself included, who have been “put in their place” for all their lives, and who really really emphatically do not need to be put in their place any more. Like, we’re good. We get it. We have no intention of straying even a femtometer from our place. Just please, for the love of god, stop. Stop making “jokes” at the expense of men, stop assuming that we’re the same, and most of all stop telling us – implicitly or explicitly – that we’re terrible people for belonging to a gender.

      I feel like I’m cowering in a metaphorical corner here, having been beaten into complete submission over the course of my entire life. And I feel like there are some feminists out there who are basically going: “Hmmm, it seems like Men still have most of the power in society. I guess we need to shit on this guy in the corner some more.”

      • Fossegrimen says:

        These are quite valid points and your interpretation may well be correct.

        On the other hand, I’ve been “beaten” with the same sort of anti-male jokes for most of my life too, and I’ve been having a good laugh all along. Because it’s funny

        I don’t know why we would have such different reactions, possibly it’s because I’ve never been very good at the whole social norms thing.

        Anyway, my algorithm for what is an acceptable joke would at least spread the pain because at the moment, I get the feeling that the only population acceptable to make jokes about is me while my algorithm essentially opens up everyone as a potential subject. (And I don’t mind being the butt of jokes, but there is a vast untapped reservoir of fun out there that is off-limits for no good reason.)

        • thepenforests says:

          Yeah, I don’t know what it is that makes my response to anti-male jokes so strong. I used to laugh along to them as much as anyone else. Part of me wonders if I used to view those jokes as not really being about “me” – like, yes, they were about guys, but only the “bad” guys. And I was one of the “good” guys, so it was all okay.

          I wonder if the whole #notallmen thing was the breaking point. At some point it seemed like there was a feminist pushback against guys trying to position themselves as “one of the good ones”. There seemed to be a general attitude of “no, if you’re male then you’re part of the problem, period, and you’re not going to escape from that with a few ‘man, aren’t guys the worst’ jokes”. In fact, I think men talking about how terrible other men were eventually came to be viewed as not just not-good but actually *negative* by some feminists – it was seen as men trying to exonerate themselves, to say “hey, I don’t have to worry about this because I recognize men are bad”.

          Anyway, I think this eventually led to me feeling extremely boxed in, psychologically speaking, by feminism. Like, the message was that there was no way I could ever feel like a good person, and any attempt to think of myself as a good person was only proof that I was actually a bad person. Given the absolute moral authority feminism had had over me ever since I was young (I mean, come on, it’s feminism – they’re the good guys! It’s just the simple proposition that women are people! What monster could object to that!) this caused a lot of mental problems for me. It was actually reading some of Scott’s writing that helped break me out of that mindset, and I will be eternally grateful for that.

          But yeah, the end result is that I’m probably overly sensitive to jokes at the expense of men.

          • Stationary Feast says:

            Thanks for the summary of #{Yes|Not}AllMen; as someone who’s not on Twitter anymore I couldn’t figure out who was serious and who was joking.

    • nimim.k.m. says:

      I see your point but now I must point out that the joke does not really work, because sans the president of USA, it does not correspond to any national stereotypes or recent politicians or anything.

    • DrBeat says:

      This very simple algorithm removes all the need for considerations about punching up/down or whatnot.

      “Positive prior” means this algorithm IS about “punching up/down”. And like the punching up/down standard, it will instantly and irrevocably become “it is okay to tell jokes about harming people I want to harm, also okay to harm people I want to harm, but not okay to say anything I dislike about people I like”. Because “positive prior” means and only means “too many people think this type of person is good, when they are not good and should be punished and hated”.

      I’m not against telling jokes about men, I am against naked hypocrisy, and jokes about men almost always are naked hypocrisy — because jokes about women that go int he same way by the same structure are said to be horrifying and perilous to women, a sign of someone who hates women and should be punished for their hatred of women. Proof of how much women are hated and how much men need to change themselves to make themselves suitable to women, and how dangerous it is to be a woman.

      If you think a joke about women is fine too, then great! No problem. But if you think a joke about women is that perilous to women and shows that much hatred for women, but you think it’s great and funny and warranted about men, then you are a hypocrite who hates men. And claiming it is okay because of a “positive prior” is nothing but an attempt to justify your hypocrisy and hatred of men in the same fashion as “punching up” for the same reason and in the same way, because all bullies everywhere all of them one hundred percent of the time believe that too many people have a “positive prior” of their victims and thus they are “punching up”.

    • The Nybbler says:

      My thought was that Al Bundy would appreciate the juxtaposition. But you had to be a fan of Married With Children to get that one.

    • BBA says:

      Honestly, it was a dumb post about a dumb coincidence between two international days of awareness (which I think are generally dumb) for two not-actually-dumb societal issues. I kinda regret making it.

      I will say that as a Jew, I am more likely to ironically make antisemitic comments in mostly Jewish company, where we all “get the joke”, than among non-Jews or people who don’t know I’m Jewish. There’s an old vaudeville tune called “Cohen Owes Me 97 Dollars” which would have been condemned as antisemitic if the songwriter weren’t Jewish, and probably completely forgotten if that Jewish songwriter weren’t named Irving Berlin. Instead, it’s just a source of uncomfortable laughter. But I still wouldn’t bring it up in mixed company.

  7. Inty says:

    1) Are you aware that Ann Coulter linked one of your articles in a tweet recently?

    2) I would take you up on your 95% bet that gay marriage will remain legal, because I think the odds are much higher than that, but that puts me in a position where either a) I can’t afford to pay out if I lose or b) The amount I win is so small that it’s not worth the bother of making the bet, especially after accounting for uncertainty. So, I’ll just make an unofficial bet of ‘I think the odds are more like 99.7%’.

    • chariava says:

      Yes, he is quite familiar with the Ann Coulter link.

      A silver lining amid the huge amounts of traffic is that at at least another one of his predictions has been proven true.

      At least one SSC post > 100,000 hits: 50%

      • Deiseach says:

        So this has all been part of a Cunning Plan? 😉

      • tmk says:

        As has been discussed before, a 50% prediction isn’t really a prediction either way. “At least one SSC post > 100,000 hits: 50%” is logically equivalent to “No SSC post > 100,000 hits: 50%”.

        • HeelBearCub says:

          That critique doesn’t truly apply here.

          If I were to assign a 50% probability to nationwide average price for a gallon of gas hitting $10 sometime in 2017, that would be a real prediction.

          On the other hand if I were to assign 50% confidence to the average price of a gallon of gas being nominally higher at the end of 2017 than it is right now, that’s not really telling you much.

          Predicting that a particular coin comes up heads at 50% is only a prediction that the coin is a fair coin, which is not really any sort of prediction at all.

          • tmk says:

            Ok, it is a prediction, but not one that can be proved right or wrong. Just as a prediction that a coin is fair cannot be proved correct by a single toss. In fact a single toss gives you absolutely zero information about whether the coin is fair or not. What I object to is the phrasing “another one of his predictions has been proven true”.

          • shakeddown says:

            I don’t know how many hits a typical SSC post gets, but that’s definitely a nontrivial prediction.

            Think about it this way: Would predicting an SSC post with at least a billion hits be a prediction? There is clearly a range of sufficiently large number for which this is a prediction. I don’t know how many hits a typical post gets, but P(max(next year)>100,000)~50% gives me a lot of information about that.

          • suntzuanime says:

            Being right or wrong is not a binary, but rather a quantifiable measure of *how* right or *how* wrong you were. Like people saying that Nate Silver got the election wrong, how could you mislead us like this: he only got it a little wrong. 20% wrong. It wasn’t that bad. A 50/50 prediction on a binary outcome means that your maximum rightness or wrongness is 0%.

            Go not to the well-calibrated for counsel, for they will say both no and yes.

            For the purposes of getting credit, 50/50 might be a prediction if everybody else is predicting 99/1. If everybody else is 49% wrong and you’re 0% wrong, you look like a friggin’ genius. If everybody else is 49% right and you’re 0% right, you look like a moron. But that’s a property of the social context in which you make the non-prediction, not a property of the non-prediction itself.

          • John Schilling says:

            A 50/50 prediction on a binary outcome means that your maximum rightness or wrongness is 0%.

            I am not sure what these “rightness” and “wrongness” things mean to you, but they seem quite disconnected from the actual utility of a prediction.

            If there’s a market analyst out there who can give me a list of stocks that are 50% likely to quadruple in value this year, and I can be certain that 50% of them will in fact quadruple in value this year, that’s a really amazingly useful set of predictions. I will laugh my way to the bank as you whine about their lack of “rightness” or “wrongness”.

    • Anon. says:

      ScottxCoulter

      I ship it.

  8. nope says:

    I’m utterly sick of the touch football we call American politics, and hopefully with the election over we’ll all have it shoved in our faces less aggressively… but in the meantime, I want to read a good book or two on Vladimir Putin. I’m interested in both the man and the myth. Anyone have any recommendations? Or Eastern European politics/history more generally?

      • dwietzsche says:

        I’m actually really suspicious of Masha Gessen, mainly because every time I read anything she writes, she appears to be advocating for people on the left to voluntarily abrogate the constitutional order. That might be an unfair characterization, I don’t know. I do know that Trump will be the duly elected president and there are certain constitutional mechanisms for ousting him if he goes over the line. At a minimum, those should be considered before any other kinds of resistance are.

        • Moon says:

          Her view may be that if one waits until it’s perfectly obvious and clear that an authoritarian leader has gone over the line, that it may be too late to do anything about it.

          Are there any history professors or avid students of history here, who have an opinion and/or evidence regarding this possiblity?

          • dwietzsche says:

            That may be her view, but at least some acknowledgment of the constitutional issues is required. If you have to break the republic (by illegally overthrowing the president or some such) to save it, you’ve got an insoluble dilemma on your hands. We’re all fucked at that point.

            But here’s the basis of my batshit, conspiratorial anti-Masha Gessen fever dream: let’s say Putin actually sees the increasingly hardening edge of the partisan right and left as something he can manipulate. How would he try to destabilize the state? Well, on the one hand, he might try to manipulate the election in ways that have been alleged by US intelligence. But that wouldn’t be enough. He also has to get the other half of the country to agree that the person he put into power is illegitimate. That’s partly Masha’s job. Of course, we’re kind of in nutsville here, straight up conspiracy talk. I don’t, for instance, think Putin did much that successfully altered election outcomes. Still, Trump is president. And now there is that petition going around demanding that the electoral college alter its votes to deny Trump the presidency. Has millions of signatures. What’s the point of the petition? It’s proof among other things that a large number of Americans are actually pretty happy to completely piss all over the constitution to get what they want. You can imagine a situation where Putin, through bribery or other shenanigans, actually gets enough faithless electors to flip the vote. What do you think happens to this country if he pulls something like that off? Liberals can’t plausibly deny their support for it-there’s a freaking petition! How secure are electoral college votes from this kind of manipulation? I have no idea.

          • nope says:

            Aaaand we’re back to American politics.

            I don’t really know what I was expecting.

          • Whatever Happened To Anonymous says:

            The ride never ends!

          • Evan Þ says:

            Er, the Electoral College voting against Trump wouldn’t be ignoring the written Constitution at all. It’d actually be quite in line with the original intent, which was that the electors individually pick whoever they thought was most qualified.

            What it would be doing is flying in the face of the traditions and convention that the British call a Constitution. And yes, that’s a bad thing. But, the word “constitution” has another meaning on this side of the Atlantic.

          • houseboatonstyxb says:

            @ Evan P.
            Er, the Electoral College voting against Trump wouldn’t be ignoring the written Constitution at all. It’d actually be quite in line with the original intent, which was that the electors individually pick whoever they thought was most qualified.

            I’ve been thinking about that (but waiting for someone else to post the research). Don’t have enough tinfoil to join those who are dreaming of it before the 19th, either.

            But discussing ideas for reforming/removing the EC, and about moving further from the US 2-party system and further in the parliamentary direction, I wonder if rolling the EC back toward one of it’s earlier functions might be useful. (This certainly wouldn’t need a constitutional amendment!)

            I see the Parliamentary approach being nicer, because it needs a coalition to get things done; thus compromise, deals between several small parties and some major party. For example, we might get President Hillary (to follow the popular vote) and Secretary Trump of Something with power to get some of the things the Red States want within their own borders (such as lighter EPA regulations).

          • VivaLaPanda says:

            @houseboatonstyxb

            I think I agree regarding parliamentary systems, but I sometimes worry that that’s a “grass is greener” thing. Can someone who has lived under both systems comment on some of the pros and cons of each?

            Regarding the electoral college:
            I think that it shouldn’t overthrow Trump even though it wouldn’t be unconstitutional. The electoral college, and the Federal Govt. as a whole is nothing like what it was at the nation’s founding. I think as long as the Federal Government is making decisions like a country and not like a union (which I really don’t see changing, and which is a whole different argument) the electoral college doesn’t make sense. The decisions of the Federal Govt. effect everyone, unlike much of the original federal government that was mostly concerned with trade policy and military activity.
            However, I also think that the electoral college is probably not my first target for election reform. Gerrymandering and first past the post voting systems I think are easier targets that would still improve the representativeness of the system, and which should help encourage coalition building between parties which is REALLY needed right now. Killing the electoral college means accepting that states aren’t *really* sovereign nations anymore and reducing the voting power of a bunch of people, which is an uphill battle.

      • nope says:

        Thanks, I’ll check it out. It seems likely to be partisan, as Gessen is apparently an activist, but that perspective can be interesting and useful.

    • dwietzsche says:

      I apologize for hijacking your thread.

  9. dwietzsche says:

    I have a Trump related question that has to do with what the breaking points should be where we might conclusively say Trump is a danger to the republic and must be impeached. Mostly the exercise is designed to be consoling, since presumably most of these are not high probability events. But it should also be somewhat clarifying-rather than arguing in this vague way people have been arguing about Trump’s unfitness to serve, I would like to know where people would actually draw the line vis a vis decisions Trump might make as president given what we know about him.

    Like, would you demand Trump’s impeachment if he tried to have SNL cancelled? That should be a legal impossibility, but it should at least be a problem for people, right? And what if he succeeded (I think he would have to dissolve the Supreme Court, basically)?

    Would you demand Trump’s impeachment if he successfully implemented a Muslim registry?

    Would you demand Trump’s impeachment if we started packing large numbers of illegal immigrants into internment camps as a part of a massively ramped up deportation program?

    Would you demand Trump’s impeachment if he started a war with Iran or North Korea?

    How about if Trump actually nominated Peter Thiel for the Supreme Court?

    You might have some other specific issue in mind to add here, this isn’t intended to be a comprehensive list. But whatever the issue is should be based on whatever beliefs you have about what Trump might actually do.

    • Incurian says:

      High crimes and misdemeanors.

      • Evan Þ says:

        Hip hip hurrah! But what, exactly does that mean beyond “whatever Congress wants it to mean”?

      • Incurian says:

        I don’t think it needs to have a meaning beyond that, it’s tautological, that’s what it is (with the caveat that what Congress wants must be in line with the constitution).

        If the question had asked “at what point should the president be overthrown by means of violence?” then the answer might be a little more nuanced (with the caveat that I would never advocate the violent overthrow of a US official or the US government).

        • VivaLaPanda says:

          Sorry, but that never caught my attention. No amount of evidence would convince you that was the best course of action? If a president jailed his political opponents, and used drone strikes on US soil to kill civilians, you would still not advocate revolution?

    • Moon says:

      See Masha Gessen’s article that I lined to, above.

    • keranih says:

      I have been chewing over similar things – had a mentoring session with some younger professionals last week over the pros and cons of sword-falling (one big con – that’s someone you can only do once) and how having rational, just, fair people inside the system –

      – George Washington did get brought up –

      – can prevent things from being implemented badly, because the devil is in the details.

      But it *is* certainly possible that this president (or the next one) could (just like the last one) do some gawd-awful unconstitutional things. And we have seen that partisans for any side will go to some length to justify the actions of their person. But I also lived through the 2004 election and people who were hysterically certain that concentration camps for Muslims were right around the corner. Just because one sees demons lurking under the bed is not actually evidence of demons, under the bed or in the closet.

      So – attempting to name things I think are bad and should be spoken against –

      – increase in things which are punishable by incarceration or fine at the federal level
      – nationalization of the police force and/or use of the NG by the President
      – a shift towards incarceration rather than deportation for illegal aliens not convicted of felonies
      – criminalization of homosexual actions out of portion of the same sort of heterosexual actions
      – criminalization or suppression of speech at any level, but most especially that critical of government officials or where the decision is based on the race, sex, or ethnicity of the speaker

      Examples of things which I don’t think are violations of the above, even though I have no doubt that some will argue they are:

      – police crack downs on protests that block public thoroughfares
      – civilian-on-protester injuries resulting from protests that attempt to block public thoroughfares
      – medical quarantine of people exposed to or suspected of carrying a highly infectious disease based on their recent travel, diet, sexual habits, and/or any other characteristic highly correlated to race/ethnicity/etc.
      – increasing deportations of people who have illegally entered or overstayed their legal entry
      – congresscritters, presidents, staff of the executive office, and joe citizen yelling uncharitable things at each other.

      Things I would like to see more of:

      – Presidents and other gubmit people stuf and letting joe citizen yell
      – Joe citizen not interrupting [president/joe citizen/whoever] and making the ‘conversation’ into a one way lecture
      – policy debates discussed as tradeoffs, not lionized as pure gold nor disparaged as pure idiocy

      I’m not sure how I would measure any of these things.

    • garrett says:

      The devil’s in the details, and that’s where political questions bite you. When you say trying to have SNL cancelled, that could be done in a variety of ways. Consider:
      Calling an exec at NBC and saying “I think the show’s on the decline and you’d be best served by replacing it” Not impeachment worthy.
      Filing a personal defamation lawsuit. Not impeachment worthy.
      Having every executive agency look for any regulation they can find to shut down NBC unless SNL is cancelled: politics as usual. It shouldn’t be, but that’s the regulatory state for you.
      Sending in the police pursuant to a lawfully-issued court order: Not impeachment-worthy.
      Sending in officers/military/whatever in order to stop the broadcast without any legal justification: Yes, impeachment-worthy.

      If Trump somehow dissolves the Supreme Court, impeachment no longer has any meaning. That’s the point at which you have to take up arms.

      As for the rest of the questions:
      Muslim registry: Probably call for impeachment, but the details matter.
      Round up illegals: No, that would be a straight-forward way of enforcing the existing law.
      War with Iran or North Korea: Details matter. Probably not given we haven’t done so for other Presidents.
      Pete Thiel for SCOTUS: Meh. No worse than handing out ambassadorships to contributors. No impeachment.

      • dwietzsche says:

        If Trump gets on the phone and just tells NBC execs to cancel SNL because his butt is sore, you don’t think that’s not impeachment worthy? Isn’t that still kind of crazy?

        • keranih says:

          crazy =/= impeachment worthy

          For that matter, I do welcome the revival of the grand old tradition of left-leaning cultural icons mocking the POTUS. I thought that old institution as dead as the dodo.

          • dwietzsche says:

            Well, let’s just say I strongly disagree with you about that. The president has institutional power he can abuse, but he also just has *power*. If Trump can effectively use the threat of the office to get his way without pulling the trigger on things like actual trials, he’s more dangerous, not less dangerous.

      • nimim.k.m. says:

        You know, Putin never did the last one either (sending officers to stop the broadcast just because), but today there are no TV shows and hardly any newspapers that do not toe the party line in Russia.

        Executives got some calls, some others faced legal troubles and blackmail by regulation, some laws got enacted to get the message through, and now their freedom of press rating is very low. Everything nominally legal.

        Trying to find any and all half-legal regulatory justifications to pressure an independent media to change their political content, especially on domestic politics is not and should not be business as usual in any liberal Western democracy.

        • dwietzsche says:

          Right. I think the ability of a dedicated executive to curtail the press is underestimated, and freedom of the press really doesn’t look like something Trump digs.

    • Jiro says:

      Would you demand Trump’s impeachment if we started packing large numbers of illegal immigrants into internment camps as a part of a massively ramped up deportation program?

      “Internment camps” in this context, would be a reference to the Japanese-American internment where citizens who had not done anything illegal were interned. Illegal aliens are not citizens and have done something illegal. Having illegal aliens being put in internment camps, with the intended connotation, is like asking “what if Trump deported all minors who are above the age of 18” or “what if Trump made it illegal to build 10 foot tall skyscrapers”. It’s impossible.

      • MugaSofer says:

        Regardless of what you think the “connotation” is, it is in fact objectively possible to intern illegal immigrants in large camps. That is not at all analogous to your impossible examples.

        Also, I disagree with your analysis of the connotation. It’s the Nazis who are famous for their internment camps, and the people set to those camps were guilty of dubious-but-enforceable crimes. The Japanese-American camps are famous only for their disturbing resemblance to the Nazi ones.

        • dndnrsn says:

          What crimes were the bulk of people sent to concentration and extermination camps guilty of? What was done at the extermination camps was done in secret, or at least, those responsible tried to keep it secret. There was never a law on the books saying Judaism was punishable by death, was there?

        • Jiro says:

          Nazi camps are called “concentration camps”. Nobody uses the term “internment camps” for them. It is a reference to Japanese-Americans, and only Japanese-Americans.

          Regardless of what you think the “connotation” is, it is in fact objectively possible to intern illegal immigrants in large camps

          Please don’t be an Internet literalist. Connotations are real. It is impossible to intern illegal immigrants in a way implied by the reference to Japanese-Americans, because the illegal immigrants are not citizens and have acted illegally, and the lack of those traits is a distinctive feature of the Japanese-American internment.

          • MugaSofer says:

            Connotations are real.

            You disagreeing with the connotations of the statement is not the same as it being logically incoherent.

            It is entirely possible to round up illegal immigrants and put them in camps. If the fact that they are illegal immigrants changes the connotations of that fact for you, fine.

        • Spookykou says:

          While internment camps were not used exclusively in America or exclusively for the Japanese, I am inclined to agree with Jiro. I only ever hear ‘Internment camp’ used to refer to the Japanese American internment camps. The ’emotional weight’ of the phrase seemed intentional.

    • “Like, would you demand Trump’s impeachment if he tried to have SNL cancelled?”

      Depends how. If he told a relevant television executive that it’s a terrible show and should be cancelled, that would not be an impeachable offense. If he made an executive order requiring the FCC to lift the license of any station that broadcast the show, it would be. In my view.

      “How about if Trump actually nominated Peter Thiel for the Supreme Court?”

      Clearly not an impeachable offense.

      • dwietzsche says:

        Does the possibility of a president simply leaning on executives to do his bidding really not bother you at all?

        • Deiseach says:

          An impeachment offence? No, but he should be told that it’s a dumb idea and there’s this thing called “free speech” (though I have to say, I’d be broadly sympathetic to the idea of getting tired comedy shows yanked off the air, but yeah – free speech).

          • dwietzsche says:

            And what if he successfully gets SNL canned. Or just chilled? Alec Baldwin stops appearing as Trump? The NY Times starts writing oddly muted puff pieces about the administration? A couple left wing opinion sites fold? Like, is any amount of actual censorship tolerable to you if Trump abstains from sending in the national guard?

        • Reasoner says:

          Not really. Read up on the relationship between the Obama White House and Google.

        • philosoraptorjeff says:

          “Does it bother you at all?” is not at all the same question as “Is it an impeachable offence?”. (And neither is interchangeable with “should it be an impeachable offence?”.)

    • onyomi says:

      Nomination of Thiel would be a clear sop to the Anne Rice “gay vampire” constituency.

      • Deiseach says:

        Well, Mr Thiel is not a gay vampire, he’s a vampire who just has sex with persons of his own gender. That doesn’t make him gay, according to that finger-wagging article about what gayness really means and is.

        No comment yet on if he really is a vampire or if associating him with such is sullying the good name and repute of unholy undead abominations from the pit 🙂

    • The Nybbler says:

      Like, would you demand Trump’s impeachment if he tried to have SNL cancelled?

      If he just used the Presidency as a bully pulpit to lash out at the show and demand its cancellation (with no “or else”), no. Rather not something I’d like the President doing, but not impeachable. Any strong-arming should be impeachable (siccing the IRS/FBI/DEA/ATF on them, having the actors arrested, etc).

      Would you demand Trump’s impeachment if he successfully implemented a Muslim registry?

      Only if he did it without Congressional assistance (that is by executive order and not law) and after being ordered not to by the Supreme Court.

      Would you demand Trump’s impeachment if we started packing large numbers of illegal immigrants into internment camps as a part of a massively ramped up deportation program?

      This is legal and simply a larger-scale version of what is already done, so no.

      Would you demand Trump’s impeachment if he started a war with Iran or North Korea?

      Presumably without good and sufficient reason? Yes.

      How about if Trump actually nominated Peter Thiel for the Supreme Court?

      No, not illegal and doesn’t do anything without the consent of the Senate anyway.

      Basically I’d only impeach Trump for something he did using the executive branch alone (that is, getting a law passed is never grounds for impeachment; it’d be futile anyway), and which actually DID something (merely proposing something bad shouldn’t be impeachable). And lesser measures should be attempted first except in especially egregious cases (so a Muslim registry might be illegal but should be ruled on before resorting to impeachment; starting a war for no good reason or using agencies as bully squads would count as especially egregious in my mind)

    • Well... says:

      I wonder whether demands for Trump’s impeachment could be made if he turns out to be too progressive–as I predict he will be. Like, what if Trump…

      – gets behind (or nominates a USSC judge who gets behind) a further dilution of the definition of marriage (to include things like polygamy)?

      – expands rather than repeals Obamacare? (Perhaps with something in there about free access to abortion services for all girls and women…)

      – works to increase immigration and visas from central-American and Muslim countries?

      – grows the nanny state?

      – grows the borrow-and-spend state?

      – puts pressure on congress to pass tighter restrictions on guns?

      Etc.

      Obviously this is all theoretical, since as Trump’s presidency starts resembling more and more what Hillary’s would have been, he will boil the frog gradually and use his persuasion skills to ensure he doesn’t lose his supporters. Formerly hardline conservatives will find themselves defending abortion and sibling marriage, and the Constitution as a “living” document, etc.

      • dwietzsche says:

        If you think it’ll go the other way, I’m fine with that too. The world where Trump gets completely coopted by the establishment may not be optimal, depending on your priors, but it’s also not likely to result in catastrophes either. Just more of the same crap. I’m mainly concerned about the downside risks of Trump’s presidency, which seem substantial enough to warrant fleshing out. I’m also worried than situations may arise where Trump really does cross some important lines, but it goes largely unremarked because people were not on guard for it.

    • Whatever Happened To Anonymous says:

      How about if Trump actually nominated Peter Thiel for the Supreme Court?

      Wouldn’t that be a huge waste of Thiel’s time?

    • suntzuanime says:

      If Trump nominated Peter Thiel for the Supreme Court, I would demand an end to term limits TBQH.

      Most of those really depend on how he goes about it and what the circumstances are. For example, if Iran or North Korea feel like suicide-by-cop there’s not much Trump can do.

    • Reasoner says:

      I honestly would not demand an impeachment for any of these. Here are my hot takes.

      * Free speech is overrated. Singapore does fine without it. If Trump got SNL canceled, he’d have done far less to muzzle speech than political correctness has done.

      * The government already has lots of info on American citizens. The value of a “Muslim registry” is mostly symbolic.

      * Obama already deported tons of illegal immigrants and no one noticed. Resisting Trump for this would, again, mostly be symbolic. It’s important to deport illegal immigrants as a deterrent to illegal immigration. It’s important to deter illegal immigration because the USA is vital to the world order, and its stability as a society is poorly understood.

      * Bush/Obama started wars in Afghanistan, Iraq, etc. I don’t see how a war with Iran or North Korea makes less sense.

      * Peter Thiel is one of the few people who thinks.

      I might demand an impeachment if The Donald was slaughtering people for no reason or was conducting our international relations in a way that could trigger another world war. Stealing enough money to affect the economy would also qualify.

      • Saint Fiasco says:

        Bush/Obama started wars in Afghanistan, Iraq, etc. I don’t see how a war with Iran or North Korea makes less sense.

        One of those countries is not like the others. If you go to war with Iran, you might lose. Even if you win, you would need to spend more resources than you did against Iraq and Afghanistan. And then you lose.

        • ThirteenthLetter says:

          There’s a huge gap in this sort of argument. Namely, it’s the convenient but dangerously incorrect assumption that the US has all the agency, that it’s purely up to the United States whether or not there’s a war with Iran or North Korea or anyone else. A lot of people today weirdly forget that we didn’t choose to attack Afghanistan; they attacked us, right out of the blue.

          • Matt M says:

            No they didn’t.

            A bunch of Saudis who happened to have spent some time in Afghanistan previously attacked us.

          • Randy M says:

            Is “and currently had a base of operations in Afghanistan with the at least tacit approval of the ruling government” true or not?
            This is how I remember things.

          • bean says:

            Is “and currently had a base of operations in Afghanistan with the at least tacit approval of the ruling government” true or not?
            This is how I remember things.

            We tried to get the Taliban to hand them over, and only went to war when they refused, which moves the cooperation from ‘tacit’ to ‘active’.

          • Matt M says:

            Okay, but that’s still not the same as “Afghanistan attacked us”

            Harboring a fugitive is a crime, but it’s not the same crime as whatever the fugitive actually did…

          • Randy M says:

            Perhaps not, but if what that fugitive did endangered your charges, and you are at best unsure of their capability to repeat it, you are going to treat it the same.

          • dwietzsche says:

            There was a justification for attacking Afghanistan, but it wasn’t because we literally understood the Taliban to be waging a war against us. They simply refused to turn over one of their national heroes in a timely fashion. Of course, there had been a debate about whether it made sense to deploy military resources in this fashion, or whether we should rely on an FBI/Interpol style of enforcement, treating terrorism like crime instead of warfare. But the people in charge of the state at the time were all team Army.

          • Matt M says:

            Also interesting: Isn’t it pretty much assumed that Pakistan totally knew where OBL was hanging out and never told us and never gave us explicit permission to go get him?

            We just went in and got him anyway, WITHOUT declaring war on and instituting regime change in the entire nation (presumably because they have access to some weapons we’d rather not they use)

            Probably makes a good argument for places like Iran that having your own nukes IS, in fact, a pretty good idea as an insurance policy at the very least…

          • bean says:

            Of course, there had been a debate about whether it made sense to deploy military resources in this fashion, or whether we should rely on an FBI/Interpol style of enforcement, treating terrorism like crime instead of warfare.

            How is Interpol supposed to help when the bad guys are in a country which refuses to turn them over after we ask directly and are visibly very mad. I’m not sure if the Taliban was so stupid they thought we wouldn’t attack, or so stupid they didn’t care. In either case, policing wasn’t going to get the enemy.
            I should also point out that the Afghanistan campaign initially didn’t look much like it does today. Basically, we provided air support for the Northern Alliance, and all of the ground forces we deployed were there to support that. The large-scale deployment of troops didn’t start until after it turned out that the Afghans were totally unable to run the country themselves.

            But the people in charge of the state at the time were all team Army.

            I was all of 9 at the time, and I distinctly remember the anger that everyone felt. There was no way that Bush could have survived responding to the Taliban’s refusal to turn Bin Laden and co over with a shrug and ‘well, they’re basically just criminals’.
            Also, that debate had been won by Team Police (occasionally backed up by Team Cruise Missile) throughout the 90s, and it seemed like a complete failure after 9/11, so expecting Team Army to lose is absurd.
            In fairness, Team Clinton’s unwillingness to pull the trigger may have made Team Police look worse than it was, but keeping that strategy was never a real option.

          • bean says:

            Also interesting: Isn’t it pretty much assumed that Pakistan totally knew where OBL was hanging out and never told us and never gave us explicit permission to go get him?

            There’s a difference between official knowledge and unofficial knowledge. Certain elements within the Pakistani government certainly knew, but the government as a whole didn’t officially know. If we’d sent our ambassador to ask “Where is Bin Laden?” they’d say that they didn’t know. If we’d said “He’s here, and we’d like you to get him for us” they’d say they’d look into it, and he’d disappear before they grabbed him. They’d probably come back later and say that they had no evidence that he was there.
            When we told the Taliban to hand over Bin Laden and shut down the training camps, they said that they wanted more evidence that Bin Laden was involved, and flatly refused all of our other demands.
            In diplomatic terms, the difference between the two is huge.

          • The Nybbler says:

            Also interesting: Isn’t it pretty much assumed that Pakistan totally knew where OBL was hanging out and never told us and never gave us explicit permission to go get him?

            This was used, thinly-disguised, as a major plot point in Homeland Season 4. Wikileaks appears to back it up in real life:

            http://www.telegraph.co.uk/news/worldnews/asia/pakistan/8488236/WikiLeaks-Osama-bin-Laden-protected-by-Pakistani-security.html

            I seem to recall reading a Wikileak which said there was a US source inside Pakistani intelligence who revealed bin Laden’s location, though I can’t find it now.

            But possession of nukes isn’t the only difference between the Pakistan situation and the Afghan one.

          • ThirteenthLetter says:

            Al Qaeda was a part of Afghanistan’s defense ministry. They were not “some guys who happened to have been in Afghanistan once” and it’s infuriating and baffling why this flatly incorrect meme survives.

            Well, then again, it’s not that baffling. If the United States was actually justified in a war it had pursued, that ruins a lot of standard narratives about how blackly evil we are. So there has to be some reason why, when Afghanistan’s government bombs two American cities, somehow we’re not allowed to retaliate.

          • dwietzsche says:

            I’m agnostic on the question of just what the right thing to do was in the aftermath of 9/11. But in hindsight, we might admit we overreacted a bit, even if granted that military engagement was a more fruitful approach to dealing with terrorism than some kind of policing effort.

          • stillnotking says:

            the convenient but dangerously incorrect assumption that the US has all the agency

            This assumption drives me up the wall. It’s so common in online discussions of foreign policy that it’s right up there with “we only use 10% of our brains”.

            I have noticed an increasing tendency to grant agency to Vladimir Putin, though, which probably indicates something about shifts in geopolitics. No one can be the world’s only superpower forever.

          • wysinwygymmv says:

            If the United States was actually justified in a war it had pursued, that ruins a lot of standard narratives about how blackly evil we are. So there has to be some reason why, when Afghanistan’s government bombs two American cities, somehow we’re not allowed to retaliate.

            Seems like a bit of a weakman. I mean, it’s kinda true because arguments are soldiers, but it’s obviously not the best case against the invasion of Afghanistan. The fact that the US remained allies with Saudi Arabia throughout the war in Afghanistan is pretty significant I think — yeah, Afghanistan’s government was obviously complicit, but so was SA’s so what’s the real objection? Just that we could get away with it in Afghanistan but not SA? At that point, I think you have to concede the moral argument for going to war. “Justice” or whatever isn’t the true motivation, and it will be more interesting and informative to discuss if we stop moralizing at each other.

            Does anyone know why it wouldn’t have been better to send in targeted special forces teams and dared the Taliban to declare war if they had a problem with the US attacking Al Qaeda directly? Worse case, we end up in the same situation we ended up in anyway, best case Taliban backs down and we get to attack Al Qaeda without having to worry about all the security and nation building that are involved with deposing a sovereign government.

            The large-scale deployment of troops didn’t start until after it turned out that the Afghans were totally unable to run the country themselves.

            Yeah, when you depose a working government, you have to replace it with other people who do not know as much about governing. This also happened in Iraq. Similarly, when Saddam Hussein’s military was dissolved, it was a replaced by people who did not know how to fight or organize a military. I don’t know if the Bush admin was so stupid they didn’t realize this or so stupid that they didn’t care. In either case, the results were entirely predictable, and were in fact predicted by a lot of people (who were largely dismissed as “traitors” at the time as I recall).

          • bean says:

            Yeah, when you depose a working government, you have to replace it with other people who do not know as much about governing.

            This is rather unfair, in several dimensions. First, describing the Taliban as a ‘working government’ vastly overstates the degree to which any Afghan government worked between the late 70s and 2001. The Northern Alliance was the de facto government in the north in 2001. They had tanks and the trappings of an army. This is the second point, that we expected them to be able to take over and run the country to our satisfaction. They couldn’t, and I’m not enough of a scholar of the conflict to know if it was because they couldn’t handle the scale-up, or because they were incompetent from the start.

          • John Schilling says:

            [The Northern Alliance as competent government of Afghanistan] couldn’t, and I’m not enough of a scholar of the conflict to know if it was because they couldn’t handle the scale-up, or because they were incompetent from the start.

            They had a competent guy. I do not believe it is a coincidence that the one competent leader in the one domestic alternative to the Taliban was assassinated the day before the 9/11 attacks. By suicide bombing, a technique not generally used by any domestic faction in the Afghan civil war ca. 2001.

          • “yeah, Afghanistan’s government was obviously complicit, but so was SA’s”

            People from Saudi Arabia were obviously involved. In what sense was the Saudi government?

          • ThirteenthLetter says:

            The fact that the US remained allies with Saudi Arabia throughout the war in Afghanistan is pretty significant I think — yeah, Afghanistan’s government was obviously complicit, but so was SA’s so what’s the real objection? Just that we could get away with it in Afghanistan but not SA?

            I’m the wrong person to ask because I wanted (and still want) anyone who supported AQ to be bombed into the Stone Age and screw the consequences. But obviously, yeah, that’s a big reason why we didn’t go after SA — even though SA wouldn’t have much of a chance against us militarily, it would have widened the war dramatically, caused an oil shock, introduced more diplomatic and religious complications, and so on.

            …Come to think of it, all of which happened in Iraq anyway. Well, hindsight is 20/20, I suppose.

            At that point, I think you have to concede the moral argument for going to war. “Justice” or whatever isn’t the true motivation, and it will be more interesting and informative to discuss if we stop moralizing at each other.

            First off: no, I don’t think you do have to concede that argument. We were attacked out of the blue, so had every right to respond with as much force as we please against those responsible, and the fact that we didn’t kill everybody who was even partially responsible doesn’t mean it was wrong to at least get the folks who were the most responsible (AQ and the Taliban.)

            Second off: it might be wrong to describe war a moral argument at all, because then you get tied down in all kinds of argumentative knots and side streets and post hoc justifications. Fundamentally, no matter who attacked who first you’re still killing folks, and that’s not very moral, is it? War is immoral. It’s also appropriate sometimes, like when someone attacks you. In order to increase the peace, you need to a) prevent them from doing it again and b) demonstrate the consequences to anyone else who was thinking of taking a swing at you in the future.

            Does anyone know why it wouldn’t have been better to send in targeted special forces teams and dared the Taliban to declare war if they had a problem with the US attacking Al Qaeda directly?

            This argument came up a lot back after 9/11, and it was because many people have a romanticized view of special forces and what they can do. Sure, America’s special forces are amazing, but there aren’t very many of them, and they’re not going to defeat a regular armed force. The worst case is we have to invade Afghanistan anyway except now they’ve got hundreds of trapped US soldiers to bargain with, and their effective allies in the news media, leftist political parties, and other Islamist countries have had a couple of months as well as, undoubtedly, some gimmicked-up “war crimes” to prep the diplomatic battlespace against the US.

            Also, if you think the Taliban would choose to either stand down or explicitly declare war you have too much faith in how Islamist regimes treat the rules of war. Most likely the Taliban would not have declared war, but attacked the special forces anyway directly or through proxies, all the time denying control over the situation. Good luck getting the UN on board with a war they never wanted to approve of once the Taliban have had a chance to send up the diplomatic chaff.

          • keranih says:

            RE: Ahmad Shah Massoud

            John Shilling got to it beforehand, but I don’t think his loss could be overstated. We were talking George Washington and Napoleon? This was their guy.

            Of all the things I hate the Taliban for, murdering this guy is the one I feel the most justified in. They fucked Afghanistan sideways with a chainsaw when they killed him.

            The USA has been around and stable long enough that 9/11 – in and of itself was not an existential threat. You could not then, nor can you now, say the same about Afghanistan.

        • John Schilling says:

          One of those countries (Iran, North Korea) is not like the others.

          Right. One of these countries has an army of well over a million men, backed by six million armed reserves, fanatically devoted to a stable cult-of-personality dictatorship, deeply entrenched in extremely hostile terrain.

          One of these countries has actual nuclear missiles, dispersed on mobile launchers in hardened sites.

          One of these countries has an ally with an extremely powerful army right next door, with a demonstrated track record of coming to their defense in wartime even when that meant matching their purely conventional military with our nuclear one – and that qualitative asymmetry no longer exists.

          If you go to war with Iran, you might lose.

          I am morbidly curious as to why you are so certain the results of a war with North Korea would be any better.

        • bean says:

          If you go to war with Iran, you might lose. Even if you win, you would need to spend more resources than you did against Iraq and Afghanistan. And then you lose.

          Define ‘war’ and ‘lose’. If we’re talking about a conventional war like we had against Iraq in 1991, we won’t lose. Most of Iran’s Air Force, for instance, dates back to the late 70s, and their domestic weapons are often clever, but a couple generations behind what we have. And they’ve been at the top of our potential enemies list since, oh, 2004.
          If we’re talking about occupying the country, I’ll agree that it wouldn’t end well.

          • dwietzsche says:

            I define a loss with Iran as the effect of a real war with Iran, which would be a war with several orders of magnitude more American casualties than the first Iraq War. Sure, we could probably beat Iran. But nobody is ready for a war like that.

          • bean says:

            I define a loss with Iran as the effect of a real war with Iran, which would be a war with several orders of magnitude more American casualties than the first Iraq War.

            How many casualties are you expecting? One order of magnitude more than Iraq (the recent one, not the 1991 edition) is about the size of Korea, at least WRT US casualties. That’s unlikely to occur these days, to say the least. I really doubt that we’re going to try nation-building in Iran, and no matter how a more conventional war goes, you wouldn’t see that many casualties. Either they’d lose or we’d pull the plug pretty quickly.

          • dwietzsche says:

            My understanding of what would happen in a real war (versus some sort of bombing campaign) is a little dated, but I assume a minimum 10k casualties, and that’s if it goes well. Also if it goes without triggering a serious backlash from Russia, which it probably would.

          • bean says:

            My understanding of what would happen in a real war (versus some sort of bombing campaign) is a little dated, but I assume a minimum 10k casualties, and that’s if it goes well. Also if it goes without triggering a serious backlash from Russia, which it probably would.

            If your understanding of ‘real war’ is synonymous with ‘major ground campaign’, then you may or may not be right. We got away with the last one, but that was 13 years ago, and Iran is better defensive terrain than Iraq is. I can’t speak directly to how effectively the two would fight. As for Russia, if Iran annoys us enough to start the shooting, I expect they’ll stand back.

    • ThirteenthLetter says:

      Mind if I add a few entries to the list?

      – Would you demand Trump’s impeachment if a rodeo clown wore a Trump mask, and the clown was attacked by Trump-supporting media and the rodeo fired him and promised special procedures to insure that such disrespect would never happen again?

      – Would you demand Trump’s impeachment if a small-town parade had a float with an outhouse on it as the “Trump Presidential Library,” and the Justice Department sent agents to the town to harass the locals?

      • The Nybbler says:

        No and yes respectively (except if the Justice Department did it on their own initiative, I would only demand Trump’s impeachment if those responsible were not fired once the facts came out), but these seem oddly specific.

        Ahh, found the “Presidential Library” outhouse incident. It appears the Justice Department sent someone from the “Community Relations Service” of the Department of Justice.

        https://www.justice.gov/crs

        “CRS is not an investigatory or prosecutorial agency, and it does not have any law enforcement authority.”

        The CRS appears to typically do more harm than good and probably should be disbanded, but sending them doesn’t seem to be the kind of strong-arming which would warrant impeachment. They didn’t go in on their own initiative, but because the Nebraska Democratic Party made a complaint.

      • suntzuanime says:

        Would you demand Trump’s impeachment if he ordered the military to assassinate a US citizen without due process or trial?

        • ThirteenthLetter says:

          Ooh, that’s a good one.

          I wouldn’t, because I always thought that argument was absurd whether deployed against Bush or Obama — take it to extremes and we need to check the passports of every enemy soldier before the army is allowed to shoot them. If you join a military force that’s fighting against the United States, you’ve made your bed, frankly. But I imagine there are lots of people out there who were for impeachment, instantly switched to opposition in November of 2008, and then instantly switched to in favor again two weeks ago.

          • Matt M says:

            “If you join a military force that’s fighting against the United States, you’ve made your bed, frankly.”

            So all Trump has to do is promise you he has evidence that Alec Baldwin is totally in ISIS then?

            No you can’t SEE the evidence, it’s classified. National security and all that.

          • Controls Freak says:

            Is Alec Baldwin in an area of active hostilities where the United States is engaged in armed conflict? IIRC, that was rather important in the OLC memo.

            Note that the abhorrent logical conclusion to this already happened: the Civil War cases. The executive branch determined that US citizens were actively participating in hostilities against the US (in US territory, no less!) and decided to target those individuals with military actions (and no “due process”). I think most people that get outraged here have never engaged with the case history.

          • ThirteenthLetter says:

            So all Trump has to do is promise you he has evidence that Alec Baldwin is totally in ISIS then?

            I dunno. Is it the case that all Obama has to do is promise you he has evidence that Anwar al-Awlaki is totally in al-Qaeda?

            Snarking aside, you’re missing the bigger picture, which is that the United States Government has essentially unlimited power to kill opposing military personnel in the context of a declared war, American citizens or not, and has had that power for a very long time (there was a useful Supreme Court decision on the matter back in World War II, as I recall.) There’s nothing unique about it to the current situation, other than the kind of crap nature of this particular war.

            Along those lines, if you want to complain, complain about the concept of a lengthy war against an poorly defined enemy with no stated victory conditions and which is prosecuted in the most vague, half-hearted and desultory way, so that wartime exigiencies become commonplace actions and unity at home becomes division and anger. That strikes me as far more useful than objecting to the U. S. military killing enemy soldiers without checking their passports first.

          • Matt M says:

            Is your point of invoking the civil war that we SHOULDN’T be outraged by executive kill lists because Lincoln did it?

            Um… that’s sort of going to have the opposite effect on me…

          • Matt M says:

            “Along those lines, if you want to complain, complain about the concept of a lengthy war against an poorly defined enemy with no stated victory conditions and which is prosecuted in the most vague, half-hearted and desultory way, so that wartime exigiencies become commonplace actions and unity at home becomes division and anger. ”

            I’d love to but I’m too busy complaining about really super important stuff. Like how the President elect sent some mean tweets to some broadway dudes whose work I am unfamiliar with because I don’t make seven figures and live in New York.

          • Jiro says:

            I’ve always been suspicious of that argument, even when used against Obama. US citizens targeted this way are typically people who were born in the US to foreign parents, and lived many of their formative years outside the US, at best returning for a while for college. They are noncentral examples of citizens, typically not culturally American, and if anything are an example of a problem with birthright citizenship.

          • Controls Freak says:

            I mean, if you’re really against killing Confederates…….. Generally, it’s an item of faith among most Americans that the Civil War was, in fact, a war, and that judicial concepts of due process don’t apply on the fields of Gettysburg. Are you really taking the position that the North needed to have a few hundred thousand trials during the process of prosecuting the war? (…and the South would as well, for that matter.)

            EDIT: Perhaps we should adopt a future rule that all reasonably-contentious wars should be won by the side which can expedite due process the most.

          • FacelessCraven says:

            @Jiro – that comment, in the context of the birther conversation in the last thread, accrues a delightful extra crust of irony.

          • Jiro says:

            Obama had an American mother, and only lived outside the US as a child for four years in Indonesia, so that wouldn’t really apply to him. Also, the spirit of the idea is that the American citizen is culturally tied to the foreign country he lived in more than he is to America, which is unlikely when he has no Indonesian ancestry.

    • Matt M says:

      I hate to fall into the “justifying bad behavior by pointing to worse behavior” cliche, but Obama literally had a secret kill list of American citizens he could (and did) murder with a bizarre executive process that is classified from all but his core inner circle.

      And we’re debating whether Trump should be rightfully impeached for trying to have a television show cancelled? Like, seriously?

    • cassander says:

      >Like, would you demand Trump’s impeachment if he tried to have SNL cancelled? That should be a legal impossibility, but it should at least be a problem for people, right? And what if he succeeded (I think he would have to dissolve the Supreme Court, basically)?

      Define “tried”.

      >Would you demand Trump’s impeachment if he successfully implemented a Muslim registry?

      Korematsu is still perfectly good law, afaik.

      >Would you demand Trump’s impeachment if we started packing large numbers of illegal immigrants into internment camps as a part of a massively ramped up deportation program?

      Definitely not.

      >Would you demand Trump’s impeachment if he started a war with Iran or North Korea?

      Define “started”.

      >How about if Trump actually nominated Peter Thiel for the Supreme Court?

      Nominating a Supreme Court Justice, even one I really don’t like, is definitely NOT an impeachable offense.

      • Gobbobobble says:

        >Korematsu is still perfectly good law, afaik.

        Yikes, really? That’s really not something we should be proud of… The wiki has a pretty good quote from Scalia on it.

        • Jiro says:

          It’s very good law because it’s used as precedent for discrimination in the name of diversity in colleges. So nobody will dare get rid of it.

        • Brad says:

          There’s no process for overturning Supreme Court cases except bringing another case on the same issue. One could just as easily say that Dred Scott is still perfectly good law.

          • The Nybbler says:

            There are at least two ways to overturn Supreme Court cases — one is bringing another case and getting an opposite decision, and the other is to change the law which the decision was based on. In constitutional cases, that means an amendment, which we in fact have in the Dred Scott case. So no, Dred Scott is not good law.

    • sourcreamus says:

      Did you think Obama should have been impeached for imprisoning Nakoula Basseley Nakoula because he made a trailer for a movie?
      Should the Supreme Court members who voted to have the movie Citizens United banned be impeached?

  10. Mike Lewinski says:

    I re-read the Toxoplasma of Rage this week and I think there are opportunities to expand on it now. The parasitic meme seems to have morphed. It’s like the nation is playing a version of rock-paper-scissors, except with fear-anger-shame. The rules for winning depend on which group you’re in and that makes a new kind of replicator. Look at the Pence/Hamilton/Trump confrontation yesterday for an example. The basic question is “whose feelings matter most” and it rests on an assumption that other people are responsible for them. Every assertion that “my feelings matter more” is a demand for the other side to concede their wrongness and apologize to make amends. Since all feelings are valid (to the degree they exist for some reason and won’t disappear on their own), there’s no unilateral winning possible which is what both sides demand.

    I’ve also been thinking a lot about the National Popular Vote as it relates to certain sacred values. The electoral college is viewed as a venerable institution crafted by wise founders who sought to balance political interests of big and small states, or alternately who feared the passions of the mob.

    Both of those arguments fall flat. In fact the EC is intrinsically damaging to the balance of interests among states today by the very purpose of its design.

    Had the founders truly feared the passions of the mob, they didn’t need EC to fix it because the alternative on the table at the time was to have the national legislature elect the president. An alternative to that was to have the state legislatures elect the president.

    We got the best compromise that could be forged to have popular vote and allow southern slaveholders to maintain their political power against free blacks in the north (PDF)

    But the respect for tradition/authority value is so sacred now that even in the face of clear evidence it violates fundamental principles, we cannot give up the myth of the founder’s wisdom. Even in the face of what that wisdom actually was, my friends still make excuses and I eventually get “well, no one really knows what happened because there were so many sources that conflict”. We don’t know what their wisdom was, but we’re sure it was wise because they were the founders!

    Part of that relates to the way we accept certain things learned in civics and history class as fact. We trust our teachers had the truth as a goal in teaching, so asking people to reject the EC is asking them to not just reject the tradition/authority of the founders, but of our teachers and maybe parents too.

    The thing that is so interesting to me now is how many other sacred values conflict with the EC and how strong people will defend the tradition value. In particular there is violation of “one person, one vote” and equal protection under the law (because the swing states get more federal grants and exemptions from regulation than non-swing states). Finally, when we split the EC/popular vote, it threatens the bedrock principle of consent of the governed, from which the new administration derives legitimacy.

    The final argument people will fall back to is “but we’re not a democracy, we’re a republic”. There are few legal definitions of what republic actually means, but the Supreme Court has ruled that the equal rights of citizens are intrinsic to the idea. Whether we call ourselves a representative republic or liberal democracy, the underlying principle of consent of the governed really matters and is really what gives government legitimacy.

    • Incurian says:

      Is it ok if you have consent of say, half of the governed?

      • Mike Lewinski says:

        There’s certainly potential for civil unrest anytime the election is very close. The EC creates a scenario where people have a legitimate reason to feel that the majority of the population doesn’t support the new administration and therefore lacks legitimacy.

        There’s an active change.org petition with 4.5 million signatures calling on the EC to reflect the popular vote. I have to imagine that given the rhetoric of ‘rigged elections’ and tenor of Trump’s rallies, the opposition wouldn’t have been content to just start petitions if the split had gone the other way.

        So I support the compact, even if it means Trump becomes a two-term president because the split goes the other way next time. I feel like we’ve dodged a bullet for now: the loss of the demagogue who has previously suggested Second Amendment remedies to losing.

        • Moon says:

          It’s hard to imagine Trump making it through his first year without being impeached. Establishment Republicans would much rather have Pence, who more predictably would give them 100% of what they want. Perhaps Trump will too though. Time will tell. Trump was so inconsistent with himself during the campaign that his actions, once elected, could go in almost any direction.

        • Incurian says:

          Oh, you just need consent from a majority. I see.

          • Mike Lewinski says:

            I’d like an unambiguous winner. It’s always possible that is going to come down to one single vote. If you have a better solution for resolving the ambiguity created by splits, I’m open to considering what they are.

            If I could design a solution from scratch, we’d keep the EC but take the splits as evidence of a special mandate to share power. The person winning popular vote is President, and the EC winner is VP. They have a special mandate to govern together and to work out the differences as publicly as possible between their platforms.

            As an interim solution, the National Popular Vote contract fixes the ambiguity problem.

            Beware the perfect solution fallacy.

          • lhn says:

            The original constitution had a system that could (would nearly always) throw political opponents together as President and VP, though the mechanics were different. The results were so unedifying that they passed the Twelfth Amendment to make sure that it wouldn’t happen again. I’m at least skeptical that reviving the situation would be useful.

          • Evan Þ says:

            But what if a popular-vote election comes down to {however many ballots from Chicago cemeteries} v. {however many ballots from Texas cow pastures}? One big advantage of the Electoral College is that it localizes disputes: we know Illinois will go Democratic, we know Texas will go Republican, conjuring up more ballots in either one of those places doesn’t matter, and the election will be decided by places where both parties have poll-watchers staring at each other for months before the election.

          • JulieK says:

            I saw a version of this argument recently, namely that without the Electoral College, states entirely controlled by one party would seek to suppress opposite-party voters in their state, but I wasn’t impressed- in other words, the only reason such vote suppression isn’t happening now is because their vote doesn’t matter in the slightest. That doesn’t seem to be something to be proud of.

          • Incurian says:

            I was being too subtle (this is not itself a subtle dig at you).

            I was taking an opportunity to ride my anarchist hobby horse and point out that having consent of a majority is not the same as having everyone’s consent. If every last one of my neighbors decided I should paint my house pink, well they can go fuck themselves – merely being in the majority doesn’t make their decision legitimate, and it doesn’t grant them any right to tell me what to do. I concede they may have the ability to force me, but that’s not legitimate or moral.

            The idea of the social contract is garbage. I wish that we would apply the same standards of consent to government as we do to sexual activity in universities.

          • houseboatonstyxb says:

            @ Mike
            If I could design a solution from scratch, we’d keep the EC but take the splits as evidence of a special mandate to share power.

            Not the share power mandate, but whenever the EC and the national popular vote disagree — I think there should be a mandated time out with recounts, inspections of the equipment, etc. All this without the current pressure for a conclusion/concession before, say, Jan 1. (While, as Bill Clinton put it in 2000, the current president still has ~60 days to quack.)

            If EC and popular vote still don’t agree, then I think the Founders would lean toward favoring the popular vote. In 2000 there were various ideas, all of which when looked up in the Constitutional literature, turned out to send deciding power to whichever authority had been most recently elected (the House, not the Senate, etc).

            For changing the system, I think the simplest thing would be to give the more populous states a few more Electors.

          • ThirteenthLetter says:

            Not the share power mandate, but whenever the EC and the national popular vote disagree — I think there should be a mandated time out with recounts, inspections of the equipment, etc.

            Wait, what? The two concepts are completely unrelated to each other. There’s no reason to think that Hillary running up her vote total in California somehow implies that Trump winning Michigan was due to vote fraud.

            If EC and popular vote still don’t agree, then I think the Founders would lean toward favoring the popular vote.

            If the Founders had really preferred the popular vote then they could have just had the President chosen by popular vote, and cut out the middleman. I mean, they did write the Constitution themselves, after all.

        • Deiseach says:

          I know nothing about the Electoral College but I’m seeing a lot of bad argument; that is, people demanding that it be abolished because the popular vote should be all that counts.

          Why I think it’s a bad argument is that “majority rules should be the deciding factor” is coming from the same segment of people who otherwise think that a 5% minority should have their wishes or demands given status even if 95% of the rest of the country disagreed with them. I saw someone responding to an objection that that would mean a handful of big cities would decide everything and nobody else would have a say with “yes, that’s what population densities means, big cities are where the most people live!”

          But they’d never accept that argument for, say, “there are only three trans people living in this town/three hundred in the entire state, so the ‘bathrooms are only for your biological gender’ rule stands” or for any other case where a minority was asking for consideration. So it’s not being argued on grounds of “I always thought the Electoral College was a bad idea”, it’s being argued on grounds of “We would have won if this method instead of that method had been used!”

          And like the saying goes, hard cases make bad laws. There’s nothing to stop some of those big cities turning from blue to red (as they turned from red to blue) in the future, because it is not an immutable law of nature that progressivism is the arc of evolution, and then what do you do for a voice to represent you when you’ve argued that majority rules, Big City gets to wag the dog, and you are living somewhere that doesn’t count?

          If the Electoral College needs to be reformed or abolished, go right ahead. But I wish people would think about it and not just react in terms of “We would have won, and we would keep on winning for the future forever, if it weren’t for the Electoral College!”

          • shakeddown says:

            The electoral college does not neccessarily benefit Republicans – in 2012 (and 2004 IIRC), it benefitted Democrats (though in both cases, the popular vote margin was large enough that it didn’t matter).

          • Edward Scizorhands says:

            Leading up to November 2000, there were serious thoughts that Bush would win the popular and Gore would win the EC. (The opposite happened.)

          • EarthSeaSky says:

            This is a really bizarrely terrible contribution to the conversation. Thanks.

          • BBA says:

            There have been four elections (1876, 1888, 2000, 2016) where the Electoral College didn’t go to the popular vote winner, and in all four of them the Republican won the EC.

          • Evan Þ says:

            But, BBA, remember that “Republican” meant something quite different back in the 1800’s.

          • Brad says:

            Why I think it’s a bad argument is that “majority rules should be the deciding factor” is coming from the same segment of people who otherwise think that a 5% minority should have their wishes or demands given status even if 95% of the rest of the country disagreed with them. I saw someone responding to an objection that that would mean a handful of big cities would decide everything and nobody else would have a say with “yes, that’s what population densities means, big cities are where the most people live!”

            But they’d never accept that argument for, say, “there are only three trans people living in this town/three hundred in the entire state, so the ‘bathrooms are only for your biological gender’ rule stands” or for any other case where a minority was asking for consideration. So it’s not being argued on grounds of “I always thought the Electoral College was a bad idea”, it’s being argued on grounds of “We would have won if this method instead of that method had been used!”

            I’ve never seen anyone propose that transgendered people get three times as many votes as non-transgendered people, but people live in Wyoming get four times the electoral college representation I do.

            Disproportionate political power is a method of protecting only one particular kind of minority. Unless someone can explain why that particular kind of minority needs that particular kind of protection, but every other type of minority can be protected by some other method, than this argument just looks like special pleading.

          • erenold says:

            It’s not just special pleading. It’s special pleading which has been explicitly packaged as a criticism of other special pleading, albeit from the outgroup. Which is more than a little frustrating.

          • Matt M says:

            “Unless someone can explain why that particular kind of minority needs that particular kind of protection”

            Because it was explicitly promised them as a condition of agreeing to join the union?

          • Brad says:

            Getting Rhode Island, New Hampshire, Delaware, and Georgia on board should eliminate that concern. Those states are the relevant “them” that could have been made the relevant promise.

            Also, it is a bit puzzling that we’d be deeply concerned with respecting the promises that were made to Rhode Island in order to get them to ratify the Constitution when that ratification was not voluntary in the first place.

    • Moon says:

      Politics is tribal. Whether the EC is good or not depends on whether it made your candidate win or not. You start with that and then construct rational arguments to defend the position you took, based on the outcome for your candidate

      Trump now praises Electoral College, says he could have won popular vote
      http://www.cnn.com/2016/11/15/politics/donald-trump-popular-vote-tweet/.

      “President-elect Donald Trump is now praising the Electoral College after previously criticizing the system…”

      • Wander says:

        You’re totally right. The only way to find the people who seriously disagree with the electoral college is to look for the people protesting it before the election.

        • Mike Lewinski says:

          For people who are primarily dissatisfied with the outcome of this last election, the EC is much better to keep and use as a Hail Mary play. Their best arguments are how the founders viewed the EC as a check to keep a dangerous and unqualified man from becoming President.

          http://www.theatlantic.com/politics/archive/2016/11/the-electoral-college-was-meant-to-stop-men-like-trump-from-being-president/508310/

          • FacelessCraven says:

            If the EC was used in this way, what do you think the result would be?

          • Mike Lewinski says:

            It would almost certainly lead to the next civil war. I don’t know what that looks like in particular, and would rather not find out. The fact so many people are contemplating it now should be cause for serious concern. Splits do undermine acceptance of legitimacy in just this way.

          • stillnotking says:

            Yep, the casual talk on the left about using the EC to overturn the election results (even Peter Beinart wrote a column in favor!?) scares me a lot more than Donald Trump does. I really don’t think they understand the forces they’re messing with.

            I commented on a reddit thread to that effect, and was confidently informed that the Army would take care of the problem if the “rednecks” got pissed. Like… who do you think the Army voted for?

          • The Nybbler says:

            The article isn’t wrong in the title, at least if you believe Hamilton. Though I think it can arguably be said to be meant to stop people like Hillary Clinton as well; where Trump used the “little arts of popularity”, Clinton certainly used “talents for low intrigue”. Certainly neither candidate could be said to be “pre-eminent for ability and virtue”. But the electoral college hasn’t ever actually played the role Hamilton claimed for it, as far as I know.

            If the elector count were much closer, one could conceive of a few faithless electors swinging the election or (more likely) throwing it to the House. But Trump has at least 290 electors; 20 faithless electors isn’t likely to happen. And Trump’s electors certainly aren’t going to vote for Hillary, so a successful campaign would almost certainly throw the election to the House, which would then choose between Trump and the #2 Republican. Who would most likely be Evan McMullin, and I can’t imagine Trump-haters really wanting that; he’s a lot more conservative than Trump.

          • Trofim_Lysenko says:

            Ehhhh, Unless and until members of congress and/or the DNC/RNC start trying to apply pressure for blanket elector faithlessness (and I am aware of exactly zero) , I wouldn’t be too terribly concerned. It’s easy for talking heads to make those sorts of calls because they don’t actually have any responsibilities or duties involved in maintaining good government and the rule of law beyond whatever they consider to be their set of journalistic ethics. It’s mostly signaling.

            Hell, I don’t think we can even draw any conclusions or make any critiques of the stance of the 4.x million petition signers, since that would require them to have given enough thought to the issue beyond “Trump bad! No Trump President!! Stop Trump!”, and regurgitating the talking points of the aforementioned talking heads.

    • Moon says:

      “I re-read the Toxoplasma of Rage this week and I think there are opportunities to expand on it now. The parasitic meme seems to have morphed. It’s like the nation is playing a version of rock-paper-scissors, except with fear-anger-shame. The rules for winning depend on which group you’re in and that makes a new kind of replicator. Look at the Pence/Hamilton/Trump confrontation yesterday for an example. The basic question is “whose feelings matter most” and it rests on an assumption that other people are responsible for them. Every assertion that “my feelings matter more” is a demand for the other side to concede their wrongness and apologize to make amends. Since all feelings are valid (to the degree they exist for some reason and won’t disappear on their own), there’s no unilateral winning possible which is what both sides demand.”

      Very interesting idea, Mike. If we end up with an authoritarian government, that muzzles the press so that it can’t be safely criticized, there certainly will not be any question of whose feelings matter most– at least in the legal arena.

    • Wrong Species says:

      Legitimacy doesn’t come from consent of the governed. No one explicitly consented to the government except for the signers of the constitution and immigrants. And our standards for “tacit consent” wouldn’t be considered legitimate in other circumstances.

      More democracy isn’t always better. That’s why the Supreme Court is set up the way it is.

    • Trofim_Lysenko says:

      Wrongspecies already covered most of my point, but to that I’d add that I think the beneficial effects (if any, and I’m dubious) of ditching the EC would be lost in the overall negative effect of our current combination of a straight plurality vote with the major parties doing their best to keep a stranglehold on ballot access.

      Honestly, I think that any attempts at electoral reform that aren’t rather more drastic and involve entirely different voting methods are arguing over the best color to paint your car with the smoking engine and the four flat tires.

      • Mike Lewinski says:

        Maine just implemented ranked choice voting and I am hopeful it will change their state politics for the better. I do believe that a lot of our political dysfunction is related to first past the post voting systems. The primary reason I support the popular vote compact first is that it’s low-hanging fruit and represents the easiest win to mobilize support for more drastic changes.

        • Trofim_Lysenko says:

          I had not heard that, that’s heartening.

        • Edward Scizorhands says:

          I doubt it will work, but I am glad that someone is experimenting. Please prove me wrong.

        • Matt M says:

          My concern with ranked choice is that it will lead to even more negative campaigning/slandering/fake news problems than before.

          Does it not increase the incentive to spend more of your time attacking your opponent and vilifying them as literally Hitler than the current system?

          • Evan Þ says:

            I don’t see where you’re getting that conclusion from – do you mean that Ann Republican will try to vilify Bess Democrat to try to get people to rank Bess below the half-dozen minor parties in the race? That wouldn’t give Ann any advantage until the minor parties actually have a chance of winning – and then, it’d give Ann an advantage even under the current voting system.

          • Trofim_Lysenko says:

            I don’t think that’s been any more true of the countries that use a form of ranked preference voting over those using a plurality vote method.

            Deiseach, Ireland uses IRV and STV, right? Any comments?

            Any Australians in the audience?

          • MugaSofer says:

            As far as I can tell, the Irish system (yeah, we use IRV for single-seat elections and STV for multi-seat elections) reduces “silly” outcomes, and generally fails more gracefully.

            It’s mildly useful for preventing situations like the one currently going on in the US, where the system produces an unintuitive result (majority picks one choice, result is another) and you can end up with a small fraction of the country basically choosing your candidate. This helps make the new government feel more legitimate, which is good.

            What it doesn’t do is magically fix the problems with political parties. Our parties are all terrible and largely indistinguishable, producing largely identical corrupt politicians with identical policies. Same as in the US.

            If anything, ours are even lazier with their lies, and put up even less of a half-hearted pretence at trying to follow through on them.

          • Matt M says:

            “do you mean that Ann Republican will try to vilify Bess Democrat to try to get people to rank Bess below the half-dozen minor parties in the race?”

            This is exactly what I mean – but perhaps I misunderstand how the system works. I’ve been assuming it’s something like “first place gets 3 points, second place gets 2 points, third place gets 1 point, etc”

            In that case, let’s say all the Ds vote Hillary 1, Johnson 2, Trump 3 – but a whole lot of Rs vote Trump 1, Hillary 2, Johnson 3. If D and R votes are exactly even, Hillary wins this election in a landslide does she not?

            While it’s true that in the current system third parties have very little influence, you STILL have some motivation to make a positive statement about yourself. An anti-Trump ad does run the (albeit very minor) risk that someone seeing it might be persuaded to vote not for Hillary, but for Johnson or Mcmuffin or whoever.

            In the ranked choice system, convincing someone to move Trump down from 2 to 3 is just as valuable as convincing someone to more Hillary from 2 to 1, is it not?

          • Matt M says:

            One more thought – if there were enough minor parties, if the D/R hated was that bad, and if there was one key third party of strength, would it not dramatically increase their likelihood of winning?

            Like, if half the country votes Hillary 1, Johnson 2, Trump 15 and the other half votes Trump 1, Johnson 2, Hillary 15, then Johnson wins without getting a single first place vote, right?

          • VivaLaPanda says:

            @Matt M

            That is not how most good ranked choice systems work. I believe the Maine vote put forward a flavor of instant runoff which works like so.

            In that case, let’s say all the Ds vote Hillary 1, Johnson 2, Trump 3 – but a whole lot of Rs vote Trump 1, Hillary 2, Johnson 3. If D and R votes are exactly even, Hillary wins this election in a landslide does she not?

            If votes are EXACTLY even:
            Neither Hillary or Trump win round 1, and so the last place candidate is dropped. This assumes there is not a perfect vote tie (which is crazy unlikely), but let’s say 50/50 on whether DemTrump or RepJohnson is last. If DemTrump is last, then DemTrump votes go to Johnson, and if he has enough(>50%) votes he wins. If RepJohnson looses, all RepJohnson votes go to Hillary, which still might not be enough for her to beat Trump if we assume that vote counts for 3. are very small. This repeats until a candidate has more than 50% of the vote.

            Here is a video explaining instant runoff.

            I personally like the Schulze method
            Simulator, Wiki

            Note: This system might actually be pretty bad because almost nobody would understand it, and that could reduce turnout.

          • Trofim_Lysenko says:

            VivaLaPanda covered IRV pretty well. There are different ways of running the “runoff” part where the lower ranked preferences are eliminated and their votes re-apportioned, and if you want to you can even set the threshold higher than 50%. However, you’ll notice that in IRV, there are a lot of situations where it would resolve almost exactly like plurality/first-past-the-post, which is one of the reasons I’d go with a Condorcet method.

            Shulze, which VLP mentioned, is one such method, but there are a bunch. Basically, a Condorcet voting method for a single-seat election is a method that satisfies the criterion of:

            -The Winner of the Election is the candidate who would be most preferred by the most people in all possible combinations of one-on-one elections.

            EDIT: IRV will not generally select a winner “Without a single first place vote” unless there’s some wacky variant I’m not aware of. A Condorcet method absolutely will. I consider that a feature, not a bug.

            It’s pretty much the textbook definition of “compromise”, and compromise (as little as I tend to like it) is one of those tactics that’s good for the civic and political health of a democracy.

          • Cerebral Paul Z. says:

            Never you worry. All those people who couldn’t figure out the butterfly ballot in Florida are going to do just fine with ranked-choice voting.

          • dndnrsn says:

            I have seen really, really smart people find breathtaking ways to screw up ranked ballots.

          • Matt M says:

            Yeah, I mean, if the proponents of it here on a forum full of generally smart people can’t clearly articulate exactly how it works, what chance does Joe the Plumber have?

          • Gobbobobble says:

            VivaLaPanda already posted a link to the CGP Grey video of a pretty clear explanation of how it works.

            If Joe Plumber is already familiar with runoff voting (which is used in some places), it’s really not that hard to extrapolate to IRV. Just have “1) Who do you most want to be [position]?” and “2) In the event of a runoff, so we don’t have to drag your ass back in here, just tell us now who would be your second pick for [position]?” Ideally there’s be a phrasing that’s easier to scale up to 3rd, 4th, nth choice, but that’s my 5-minute wordsmithing.

            You could always just tell people “Take all these candidates and rank them in order from most to least favorite.” Our current ballots (at least in my area) don’t write on them “whoever gets the most votes wins” or explain the Electoral College in presidential elections, that’s on basic civics class and cultural knowledge. (or if they do write it, not somewhere that actually gets read)

          • Trofim_Lysenko says:

            A ranked preference ballot is pretty straightforward:

            “Here is a list of candidates. Put a 1 next to your first choice for the office, a 2 next to your second choice, and so on. If you don’t like the candidate at all, don’t put a number next to their name”

            Alter wording accordingly for scantron ballots where you mark the bubbles for 1st through Nth place.

            At the risk of being declared a closet authoritarian, anyone who can’t handle that, with election volunteers on-hand to help explain and demonstrate, is not someone whose vote I’m going to miss.

          • hlynkacg says:

            Ranked preference voting is wonderful for those who enjoy creating complex spreadsheets of potential outcomes, (which is why I suspect that it is so popular on SSC) but it’s pretty damn terrible as far as producing a clear and intuitive result is concerned.

            In this regard ranked preference is obviously inferior to both majority and approval voting which can be both be summed up in 3 words “Most votes wins”.

          • Gobbobobble says:

            True, but the clear and intuitive system inevitably leads to the two-party strategic voting trap we’re currently stuck in. IRV isn’t too horrid compared some other alternative methods since it can be (perhaps over-)simplified as “Most votes wins, unless no one gets >50%”. It has the unfortunate problem of being way more easily understood via diagrams than paragraphs. I feel like if people can understand the EC, they should be able to pick up IRV once it’s explained.

            I’d be curious to hear from someone across the pond whether Jacques Schmoenzollern from Podunk, Europe actually has trouble with understanding their systems. And if so, if it’s in a meaningful way that impacts their voting behavior.

          • Brad says:

            Is it any harder to explain than the details of the EC which the media ends needing to do every four years? It too can’t be summed up by “most votes wins”.

          • dndnrsn says:

            What’s wrong with a mixed PR system? Still “pick your favourite”, has local representation, gives some proportional representation without full-on wackiness…

          • Gobbobobble says:

            My beef with PR is that you vote for parties instead of individual representatives. Party machinery has entirely too much power as it is. But PR is definitely better than FPTP.

            Am I remembering correctly that PR, as implemented, also limits you to one choice? Does that not lead to similar strategic voting shenanigans?

          • dndnrsn says:

            Mixed PR systems let you vote for a local representative, though, which helps solve one of the problems of the full PR system, which is that there’s a party list.

            PR has strategic voting, and mixed PR has more, but a lot less than a system like legislature-based FPTP like the UK or Canada has (where it often comes down to whether the right or left is more united).

          • hlynkacg says:

            Brad says: True, but the clear and intuitive system inevitably leads to the two-party strategic voting trap we’re currently stuck in.

            You’re going to see strategic voting regardless, as such the question ought to be how accessible are these strategies to a layman.

            Someone, I want to say it was John Schilling, posted a detailed numerical analysis of “strategic voting” for a bunch of different electoral systems about 6 months back and I kind of wish I’d saved the link.

            Brad says: Is it any harder to explain than the details of the EC

            Yes, very much so.

            The EC is quite simple in practice. X state is worth Y points, the candidate with highest score wins.

          • Gobbobobble says:

            Ah, nice. Thanks dndnrsn. That does sound reasonably solid. I’d still prefer IRV, but have more respect for PR now.

            Does mixed PR get a bad rap for being difficult for the average voter to understand? That seems to be the biggest objection to non-FPTP systems and I’m interested if it actually plays out that way in reality.

            ETA: @hlynkacg, There’s a wiki article on it, though it’s not especially numeric. I’m unconvinced that “push-over” actually applies to IRV (since separate “rounds” don’t work the same way as in a standard runoff/primary system), so I’d be interested in what the tactical risks that analysis presented are.

            Might be I’ve had too much kool-aid, but I feel like IRV (at least as implemented like the CGP Grey video) nicely (though not entirely) mitigates lesser-of-two-evils without opening up new doors to strategic voting.

          • Trofim_Lysenko says:

            I find something like the condorcet criterion plenty intuitive, and in fact somewhat similar to utilitarian calculations: The candidate most positively thought of by the most people.

            It works directly against the polarization created by a winner-take-all approach to politics because it favors building a consensus on shared principles.

            I’m not at all sure that “Clarity” in the sense of “so simple you can sum it up in one sentence” has much value. We have systems in place to allow for election results to be audited for a reason.

            EDIT: as far as comparison of voting systems, there are quite a few you can look at online. There’s no such thing as a clear “best” to-date, because every system is vulnerable to SOME form of tactical voting, and because every system fails on SOME measure. Which one you prefer will depend on which measures you consider most important.

          • dndnrsn says:

            The German system causes a bit of confusion with regard to the “first vote, second vote” system, and according to Wikipedia “Half of the Bundestag is then filled with candidates that won their electoral districts by the first votes and the other half by candidates from the party lists according roughly to the proportion the parties receive from the second votes according to a complex mathematical formula.”

            So, a little bit complicated. But not in a way that causes confusion to people actually voting when they vote, as ranked-ballot systems can do. The system is a bit hard to understand, but the picture of the ballot on Wikipedia is simpler than some FPTP ballots I’ve seen.

            FPTP’s advantage is simplicity – which is why it’s the first system to exist. IRV is probably the best system overall, and I have no issues with it – but it tends to confuse people terribly. The German system seems to be the best overall as a system, and to have the best outcomes – you don’t get the “Republican in California” effect, you don’t get the wacky unstable coalition governments of pure PR, you don’t get one party winning 60% of the seats with 40% of the votes like in the UK or Canada.

          • Brad says:

            hlynkacg: you have your first quote mislabeled.

          • Let me put in a vote for my preferred system–preferred on aesthetic grounds since I have no strong opinion on what versions of democracy produce the least bad results.

            Every representative has a list of the people he represents. Every voter can change his representative any time he wants to, easy enough to manage with modern technology. Each representative casts a number of votes equal to the number of people on his list.

            Any representative with more than 500,000 names on his list gets an actual seat in the House from which to make speeches, propose bills, etc. Any group of representatives with a total of at least 500,000 names among them get a seat, which they can take turns occupying.

          • Gobbobobble says:

            An amusing toy system, though that last part about sharing a seat sounds like it would lead to disaster pretty quickly. Maybe file it under Futarchy (or Futarchy-like), since it would require a pretty robust technological architecture to support the constant switching.

            Would you have any rules as to quorum? If, say, everyone “votes” for themselves, and refuses to share, then no one is qualified to a seat.

          • “though that last part about sharing a seat sounds like it would lead to disaster pretty quickly. ”

            Why? Three representatives with 200,000 votes each agree to share a seat on some regular rotation, with an understanding that if something is up of particular importance to one of them the one scheduled for the seat will trade with him. If the three find they can’t get along, one of them leaves and finds another group willing to have him.

            Quorum is presumably defined by number of votes present, not number of bodies present.

          • VivaLaPanda says:

            Regarding the difficulty in understanding IRV:

            I think that a key question here is to what extent we are willing to tolerate a voting system which is more of a black box to the average voter. Something like Shulze is a great method, but it will never be more than a black box to voters besides those with a strong interest in elections and in mathematics. Regarding IRV, I think it is fairly easy to understand, and that the benefits it creates far outweigh the possible consequences. There is very tentative evidence that more complex voting systems negatively effect turnout, and until we see more clear results (hopefully from Maine next election), I think we should go with a system that targets negative campaigning and partisanship rather than worrying about hypothetical microscopic changes in election turnout, at least until we see more evidence that either IRV doesn’t improve elections, or that it reduces turnout.

          • dndnrsn says:

            What about the charge that the ranking is confusing? I would not think that it is, but I once was involved in counting ballots for a college election where the average intelligence would, I predict, be quite a bit higher than the general public – and a lot of people seemed baffled by the system. A lot of spoiled ballots, a lot of people just checking off their #1 choice, thus defeating the system.

            In somewhere like the US, where elections are handled irregularly by local partisans, I can see IRV being a total disaster.

    • The Nybbler says:

      From your Cardozo Law Review Article:

      The second wrong explanation for the electoral college is that it was designed to protect the small states from dominance by the large. […]However, in all the debates over the executive at the Constitutional Convention, this issue never came up.

      Records of the Federal Convention

      “He had always thought and contended as he still did that the danger apprehended by the little States was chimerical, but those who thought otherwise ought to be peculiarly anxious for the motion. If the Executive be appointed, as has been determined, by the Legislature […]. In either case the large states will preponderate. If he is to court the same influence for his re-appointment, will he make his revisionary power. and all the other functions of his administation subservient to the views of the large States.”

      So, you can pitch that article into the dustbin for which dishonest research is justly consigned. It is certainly true that the considerations of the slave states (in this case, preserving the value of the 3/5ths compromise for both legislature and executive) were part of it, and appears to have been the final consideration. (see page 57). But to say this was the only consideration is nonsense.

    • AnonEEmous says:

      The link you posted in support has this money quote:

      “Mr. Williamson, conceived that there was the same difference
      between an election in this case, by the people and by the
      legislature, as between an appt. by lot, and by choice. There are
      at present distinguished characters, who are known perhaps to
      almost every man. This will not always be the case. The people
      will be sure to vote for some man in their own State, and the
      largest State will be sure to succede. This will not be Virga.
      however. Her slaves will have no suffrage.”

      Read that over once again: they were worried that the largest state would vote for their person and win, and ALSO that it wouldn’t be their state that would win, because slaves wouldn’t have suffrage. Don’t you think that means all the other states had similar fears? The very fact that he’s treating it as possible for his single state to dominate the national executive sort of proves the point of the electoral college already.

      But yes; if the South wasn’t given certain considerations, they would be in a pickle. And then they’d secede. For god’s sakes, California is threatening to secede despite having the most electoral votes of any state. Can you imagine how often states would be leaving without the electoral college? At the very least, we wouldn’t be a very united country. So no, it’s not a bullshit system; it is a means to stop the country from tearing itself apart. True, it had a ton to do with slaves, but that’s the point; if the slave states didn’t have enough representation to get any of their guys in, even if they were founding fathers and principled people like Jefferson, then what’s in it for them to join a Union at all?

      • Moon says:

        “it is a means to stop the country from tearing itself apart.”

        As if it’s not doing that already.

        • The Nybbler says:

          As if it’s not doing that already.

          It’s not. Not in the literal war-between-the-States sense they meant at the time. There’s no serious consideration of secession, and rioting by a few special snowflakes in Portland don’t cut it.

    • cassander says:

      >An alternative to that was to have the state legislatures elect the president.

      that in no way would have reduced the power of the slave owning states. They would have still gotten worth 3/5s of the number of slaves they had in the house, and thus just as much power over the selection of the president as they do with the EC. And given that the small states were mostly in the north, if anything, it was the soon to be anti-slave states (IIRC, none had yet banned slavery at the time of the constitutional convention) that benefited most from giving the small states more votes.

  11. chariava says:

    I was reading into the history of the Supreme Court and Supreme Court justices on Friday and stumbled upon something I found intriguing. I had always assumed that Supreme Court Justices are almost always chosen from a group of judges on the lower courts. (With Taft being one of the few notable exceptions to that rule.) Instead I found that though a majority of the Supreme Court Justices had been judges on lower courts before their appointment, there have been quite a few Governors and Senators appointed to the court in the past.

    The governors being the sixth Chief Justice of the Court, Salmon P. Chase and the fourteenth Chief Justice of the Court, Earl Warren.

    Quite a few Senators have historically served on the Supreme Court. For a full list see here.

    The last time a governer or senator was appointed to the court was in the mid twentieth century. 1949 being the year when the last senator was appointed and 1953 when Earl Warren was appointed.

    I was wondering why this practice ended and why they both came to a close around the same time period. It is fascinating how something that happened at least once a decade in the first half of the 20th century (the appointing of Senators to the SC) and quite often in the 19th, came to an abrupt end in the second half of the 20th continued into the 21st.

    I was also thinking, Trump is most likely (With the assumption being that nothing is guaranteed with Trump) going to pick a candidate from the list he put out a few months ago to fill Scalia’s seat. In the chance he does get the opportunity to appoint another one, how probable is it that he chooses someone without any prior experience being a judge?

    • dwietzsche says:

      At some point Trump is going to start running into problems with the judiciary as he tries to implement some of his policies. I don’t see an attempt to register Muslims, for instance, surviving a 1st Amendment check. One of the questions that I have is what Trump will do when one of his stated policy goals gets negated by a sitting judge on constitutional grounds. This has always been one of the tender points in the checks and balances system. It’s traditional for presidents to accept the rulings of the courts, but that isn’t universal (Andrew Jackson famously ignored the Supreme Court, I’m not sure how often that sort of thing happens). Most of the power of the judicial branch to restrain the president is normative, and Trump is really neither versed in those norms nor particularly keen on being told what to do by people in magisterial robes.

      I mainly worry about this because people may be a little overconfident in the ability of the courts to restrain Trump if he goes off the deep end. It’s not likely that the current Congress is going to slow Trump down much. The general public does not appear to be well versed in actual historical trends in constitutional law. I don’t actually know, for example, if there would even be a general public outcry if Trump had Alec Baldwin thrown in jail his first day in office on trumped up charges. Everyone is so entrenched in their partisan spaces that objective cases of abuse are likely to get litigated by the public in the usual way-completely fecklessly and with no acknowledgement that there really are some universal conditions for outrage that everyone on the left and right should worry about.

      At any rate, it wouldn’t surprise me that if Trump gets stymied too often by the courts, he might try to steamroll them not just by ignoring, but completely reshaping them. This is where we get to your question. If Trump or one of his advisors catches on, given what we know about Trump’s litigious nature, he isn’t going to want constitutionally educated judges on the court. They aren’t going to sign up to give the president the power to silence media organs and punish impression comics. He would definitely have to find picks elsewhere.

      This is where what we’re really counting on is the fact that changes to the judiciary take a really long time. Trump could get lucky and get three appointees in the next four years. It still wouldn’t be enough to make a mockery of constitutional law even if he could get everyone he wanted (unlikely). It’s also not clear how successful Trump is likely to be to even find the kind of people he would need for that kind of thing in the first place. His surrogates don’t look like they’ve got the moxie for that kind of thing.

      But I think people should pay attention to what happens with the courts. It’ll be a more clear indication of just how dangerous Trump is going to be than his cabinet picks.

      • Anonymous Bosch says:

        It’s traditional for presidents to accept the rulings of the courts, but that isn’t universal (Andrew Jackson famously ignored the Supreme Court, I’m not sure how often that sort of thing happens).

        If you count FDR’s court-packing bill that caused Owen Roberts to switch his vote on substantive due process, it’s probably about once every century, and we’re due.

    • Brad says:

      I was wondering why this practice ended and why they both came to a close around the same time period. It is fascinating how something that happened at least once a decade in the first half of the 20th century (the appointing of Senators to the SC) and quite often in the 19th, came to an abrupt end in the second half of the 20th continued into the 21st.

      The legal industry has dramatically changed. As late as 1900, law schools had not yet established a stranglehold on admission to the profession much less had the currently rigidly enforced hierarchy of law schools come into existence.

      Since at least the post-war period the legal profession is one of, if not the most, credential obsessed field in the entire country. The judiciary is a just a reflection of what is going on at all levels of the legal field.

      Although I am very much not a Trump supporter, in this one area, I was very pleased to see that his list was made up of people that had not all gone to Yale or Harvard law, clerked for a court of appeals judge and then a Supreme Court justice, worked in either biglaw / department of justice / or a prestigious law school, then been appointed to either a federal district court or the court of appeals.

    • cassander says:

      >I was wondering why this practice ended and why they both came to a close around the same time period

      I can’t prove it, but I blame a cultural shift brought about by the end of the spoils system combined with the massive expansion of law under the new deal. The civil service was set up in the late 19th century, but it didn’t apply all at once. Each part of the government had to be converted, and it took until the 1930s or so for that to happen.

      Second, here’s an important new deal law It’s a dozen pages or so. Modern law, largely brought about as a consequence of the new deal, is far more voluminous.

      The first of these created a cultural bias against such appointments, which used to be common in all levels and branches of government. The second meant that becoming “learned in the law” was no longer a side job, but a full time gig.

    • VivaLaPanda says:

      I recommend listening to the podcast miniseries More Perfect. It covers the early history of the supreme court, as well as landmark cases historically and more recently. It has a bit of a liberal bent, but it’s still informative for either team.
      One big thing they talk about is that not only did the Supreme Court have less power before Marbury v. Madison, but they also were less focused on having the trappings of power.
      The Supreme Court is on of my favorite examples in my own life of the more general principles expressed by Scott several times regarding when to use power badly to achieve good goals. I think the Supreme court is often too political, but I also generally like the ways it has used it’s powers so far. It’s a difficult question as to where the line is and should be.

  12. Moon says:

    It’s almost impossible to get to the previous open thread, so here is an observation and also a question I asked there, that won’t get answered there, so am transferring it over to here.

    There’s something sad about the Wolf post, in our sad country right now. It’s like, as someone else guessed somewhere else in this thread, like Scott was bitten by a rabid SJW as a child. Maybe he grew up in San Fran, where there are many SJWs– as opposed to most other places where even progressives do not even know what a SJW is, like I didn’t before I came to this web site.

    And it’s as if Scott is telling some place like Vox.com “Please help me and others to heal from SJW bites we have experienced. Please, Vox, let go of your weird habit of going off the deep end with respect to identity politics, and help us to heal, so we can join you in the Blue Tribe.”

    But Vox can’t do that. Media is under threat and “news media” and investigative journalism have all but disappeared, in favor of infotainment. Those few serious news organizations that exist– and Vox is one of them– are incredibly rigid and non-responsive.

    Heavily stressed people and organizations tend to be that way. They just keep rigidly going along, on their narrow path. And Trump’s election certainly won’t improve that, as it will make new organizations become even more stressed.

    There is a reason why Vox does not allow comments to its articles. They don’t want any feedbback except clicks. Because media is a business that makes money, or even if it’s a non-profit, its goal is clicks and readership. They feel obligated to go through the motions of responding to some of Scott’s criticisms, because Scott has so many readers clicking on his web site. But that doesn’t go very deep.

    Most humans don’t respond thoughtfully to rational arguments anyway. Most humans prefer fake news, news that is full of falsehoods but that causes them to feel good righteous feelings and tribal superiority feelings. But news organizations are even worse at responding thoughtfully to rationality than your average human is.

    • bakkot says:

      It’s almost impossible to get to the previous open thread.

      For reference, it’s linked in the sidebar from any post (under ‘Recent Posts’), and the full list can be reached by clicking the “and tagged open” at the bottom of any open thread.

    • “Most humans don’t respond thoughtfully to rational arguments anyway. Most humans prefer fake news, news that is full of falsehoods but that causes them to feel good righteous feelings and tribal superiority feelings.”

      Certainly a defensible claim, possibly true.

      Have you ever seriously considered the possibility that it applies to you as well as to others? I think many here, myself included, see you as a reasonably nice person living in a fantasy supported by a heavily filtered information stream–a fantasy that provides you “tribal superiority feelings.”

    • Winter Shaker says:

      It’s like, as someone else guessed somewhere else in this thread, like Scott was bitten by a rabid SJW as a child.

      Our host is on record that he kinda was.
      (see sections III of each)

  13. Moon says:

    Question:

    Ann Coulter’s linking to the Wolf post reminded me of a previous post of Scott’s. Some people here have read a lot of Scott’s posts and remember which ones are where, better than I do.

    Can someone tell me which post it was where he put this quote from a critic in a separate paragraph, separated from the rest of the text? Basically, it said that Scott takes a cool objective rational look at research support, or lack of it– for awful political ideas or movements.

    Scott responded to the quote, immediately below it, saying “Yes, that is precisely what I do” or something to that effect, and then went on to explain why he does this.

    Anyone remember the title of that post? Thanks.

    • phisheep says:

      If the quote you remember is this one …

      He seems to honestly think that it’s a worthwhile use of his time, energy and mental effort to download evil people’s evil worldviews into his mind and try to analytically debate them with statistics and cost-benefit analyses.

      … then the post you want is this one.

      It is one I go back to every now and then to remind me what life is for.

      • Moon says:

        Thanks very much, phisheep. That’s exactly the article I was looking for.

        Scott sure is a prolific and thoughtful writer. I often think of one of his posts in relation to some issue or another. Agree with him or not– or like me, agree with him sometimes and disagree at other times– but his posts are always worth reading and reflecting on. And, when I disagree, it’s always worth thinking about exactly why and how I disagree.

        • phisheep says:

          I find I agree with Scott *a lot*, especially when I’ve just read something he has posted. Then I always get a sort of mental double-take because Scott has deconstructed thing X which has been persuasively argued for elsewhere, which makes me suspicious about smooth persuasive argument, which makes me suspicious of a smoothly persuasive guy like Scott …

          Of course, by the time I have disentangled all that, there are about 435 comments and Friedman has persuasively said something weird about archery or fly-fishing and I forget what I was going to say.

          Reading here reminds me of the sort of intellectual kicking I used to get in philosophy tutorials way back when.

  14. Douglas Knight says:

    Why do people believe that the Irish were ever considered “not white”? Does it all come down to the book How the Irish Became White?

    I finally thought to look at that book and it doesn’t make that claim. It doesn’t care about what the Irish were called. It is about being white in in the eyes of the author. It isn’t about 19th century definitions of white, but about the 21st century definition: white/non-white meaning oppressor/oppressed.

    • Moon says:

      “By George, I think you’ve gawt it” as someone says in the British movie My Fair Lady. The concept of the Irish as non-white does conflate “oppressed” with “non-white.” Both ideas are minority group type concepts.

      The idea seems to be that, in order to keep groups of people in indentured servitude or other very oppressive conditions, you have to think that they are inferior to your more typical person. And if the oppressed group is a racial group, then one conclusion one might draw from that, is that that racial group must be considered inferior to your typical person who is “white.”

      Of course, it’s rather dumb in the case of the Irish, because they are obviously white.

      But race is sort of a bs term anyway.
      The myth of race, debunked in 3 minutes

      http://www.vox.com/2015/1/13/7536655/race-myth-debunked

      • Well... says:

        But race is sort of a bs term anyway.

        What other term do you prefer, to encapsulate the measurable average differences in all sorts of traits between group X whose ancestors are mostly from A B and C, and group Y whose ancestors are mostly from D E and F?

      • sourcreamus says:

        From your link : “it’s really just using race as a proxy for other factors such as where your ancestors came from”.
        So race is not real but where your ancestors were from is real.

    • HeelBearCub says:

      Because the Irish were depicted as non-white? Similar to negroes?

      See the famous Harper’s magazine pic, for instance. Also written descriptions of them as darkly completed, etc.

    • rlms says:

      I don’t know about non-white, but I’ve seen enough anti-Irish cartoons that it seems some people considered them ethnically distinct from “normal” Americans. Interestingly, although the (prolifically anti-Irish) cartoonist Thomas Nast was very prejudiced against the Irish and Catholics, he was an advocate for black, Native and Chinese Americans (or so says Wikipedia).

    • MugaSofer says:

      From Observations Concerning the Increase of Mankind, Peopling of Countries, etc. by Benjamin Franklin:

      All Africa is black or tawny. Asia chiefly tawny. America (exclusive of the new Comers) wholly so. And in Europe, the Spaniards, Italians, French, Russians and Swedes, are generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted, who with the English, make the principal Body of White People on the Face of the Earth.

      From The Races of Britain by John Beddoe.

      While Ireland is apparently its present centre, most of its lineaments are such as lead us to think of Africa as its possible birthplace; and it may be well, provisionally, to call it Africanoid, applying the name Atlantean, which has been suggested, to the widely-diffused Ibero-Berber race type, of which it is probably a subdivision, in spite of the wide difference in the form of the jaws between it and the Basque type of Zaraus, the best accredited Iberian standard… These show the inclination to prognathism to be of remote date in Ireland, as well as the peculiar form of low, straight brow that still prevails there, and which is connected with low, square, horizontal orbits.

      John W. Jackson, The Race Question in Ireland:

      Quite certain it is, that inferior and non-Aryan racial elements are clearly perceptible in the population of the sister isle, and this, too, in much greater strength than in Britain.

  15. antimule says:

    Scott, a question: you stated in your anti-Trump post that the Trump victory might result in a huge boost to SJWs. But now i am actually seeing a lot of pushback to leftist identity politics (i am on phone but there are links on haidt’s and pinker’s twitter).

    Do you still stand by that prediction?

    • Anonymous Bosch says:

      But now i am seeing a lot of pushback to leftist identity politics (i am on phone but there are links on haidt’s and pinker’s twitter).

      (A) It’s been not even two weeks. Give it six months after he takes office and actually starts doing stuff.

      (B) I would suggest that those Twitter feeds are not the best filter, as they will naturally highlight introspections that agree with their views.

    • thepenforests says:

      Yeah, I’m (tentatively) encourage by how reflective the left has been since the election. There’s been a lot of doubling down, to be sure, but also a decent number of people who seem open to the idea that the left made some mistakes (and not just a strategic mistakes, but actual moral ones). I think pieces like that Vox article on smug liberalism might have set the stage for this kind of reconsideration.

      It’s a fascinating time in general. A lot of people were shocked by the election result, and are now reaching out for narratives that can make sense of it all. I’ve never really been in a position to watch wholly new narratives be formed in real time, and I find the process…interesting. Like, if you kind of squint at it right, the whole thing almost looks like the ideal of a free marketplace of ideas – people are posting various articles and counter-articles that purport to explain what happened, the articles are being discussed in break rooms and dinner parties (and on facebook) around the world, and various consensuses are being reached. The problem, of course, and the thing that makes the whole dynamic at best only a funhouse mirror version of the marketplace of ideas, is that “corresponds to reality” is only one of the criteria people are using when they’re deciding on which narrative to buy into. The other criteria are things like “makes me look good to my friends” or “makes me seem contrarian” or any number of other status-related considerations.

      But if I take anything positive from this election, it’s that reality correspondence is at least one of the things that people do consider when looking at narratives and explanations. Like, we wouldn’t be having this collective conversation if everyone were satisfied with their previous worldview, and the reason people aren’t satisfied with their previous worldview is that it didn’t predict Trump would win. I find this kind of encouraging. We may not be even close to being rational truth seekers, but truth is one thing we care about, and that might be enough to let our narratives tend towards truth in the long run.

      Anyway, now I’m wondering if there’s a kind of “punctuated equilibrium” thing going on with societal narratives, where for the most part the dominant mainstream consensus opinion is capable of explaining pretty much anything that comes its way, and so no one needs to question it. But occasionally something big happens that it can’t explain, and so a completely new consensus opinion needs to be formed from scratch. If this is the case, what was the last big shock that required a reconsideration of the “standard mainstream consensus”? The housing crisis? 9/11?

      • doubleunplussed says:

        It makes me wonder if there was a lot of dissent within SJ already, and the election result, just as it has emboldened anti-SJ people, gave pro-SJ people a way to coordinate voicing their dissent.

        Relatedly, over on Ozy’s blog, there was recently an “Ideological Turing Test”, where pro and anti SJ people tried to fool the commentariat that they were a member of the opposite camp. The pro-SJ people won – they were better at pretending to be anti-SJ than anti-SJ people were at pretending to be pro-SJ.

        Some in the comments speculated that this was because many pro-SJ people have legitimate dissenting opinions about SJ methods or views, that they were able to genuinely express when pretending to be anti-SJ, which made them more convincing.

        This would be all too convenient for anti-SJ people like myself, so take it with a grain of salt, but I wonder whether it’s true nonetheless. It’s certainly my experience that talking to SJ people in private, they’ll express more reservations than in a public forum on the internet.

        • MugaSofer says:

          It didn’t hurt that pretty much every anti-SJ essay, real or not, was judged genuine.

        • EarthSeaSky says:

          Part of what you’re seeing is the diffusion of identity politics into the fabric of our discourse. In a way, the SJWs have won. I can’t remember who wrote it, but someone over on 538 pointed out that in this election, whites voted as a minority block would be expected to.

          In the 20th century, politics was defined by economics. The cold war provided a platform for discussion and argument among lay people about economic policy.

          Now, we’re all so narcissistic and introspective that the only thing any of us really know that much about is ourselves, and how we feel. This has laid the groundwork for identity politics. It started in SocJus, and it’s only getting worse from here.

          • BBA says:

            We’re back to the Gilded Age. In the late 19th century, if you or your ancestors fought for the Union in the Civil War, you voted Republican. If they fought for the Confederacy or they weren’t in America yet, you voted Democratic. 120 years of ideological sortition and every major demographic except rural Northerners switching party allegiance, and we’re almost where we started with the colors reversed.

          • Moon says:

            Well, we are mostly where fake Right Wing news has put us, including decades of constantly bashing the Clinton family.

          • “including decades of constantly bashing the Clinton family.”

            I’m curious. Have you ever looked into the facts of Hillary’s cattle future speculation, back when Bill was governor?

            She started with a thousand dollars, ended up with a hundred thousand, making bets in a market she had no expertise in. Her broker was also the broker for a high up person in Purdue Chicken, which had extensive operations in the state her husband was governor of.

            The obvious explanation is that when a trade made money the broker assigned it to her, when it lost money to the Purdue person, thus transferring money from him to her as a concealed bribe.

            I would be interested to know if you have an alternative explanation of why she went into that market and how she was so successful.

            I should add that my view is based on the analysis of the evidence in an old article by a speculator, a Soros protoge´.

          • My wife points out that I misremembered one detail–it was Tyson Foods, not Purdue Chicken, that was the presumptive source of the bribe.

          • houseboatonstyxb says:

            @ David Friedman

            The last time we discussed this cattle futures charge against Hillary, Wikipedia had more material against the charge than for it. I’m not going back in that bramble patch of pickable cherries.

            Bayesianish stuff is more fun. On the prosecution hand, Hillary’s profit is statistically rare but definitely non-zero.

            On the defense hand, the credibility of those people acting as charged — is something below Disraeli giving Queen Victoria a cigar, and her smoking it. To safely bribe a Governor, you don’t involve anyone else in the scheme; don’t create even a small conspiracy. Don’t use anything that’s trackable, such as funds in an account. Don’t use a brokerage subject to investigation for other dodgy stuff. Above all, don’t create a news-worthy narrative — like the First Lady getting a rare profit.

            Now look at it from the Clintons’ side. Would you accept a bribe delivered in such a foolish way?

          • Randy M says:

            Now look at it from the Clintons’ side. Would you accept a bribe delivered in such a foolish way?

            Assuming I was looking for bribes, why not? So long as some plausible deniability exists, you can trust half the people to support you because you are on their side and many others to forget about it in time.
            Doesn’t the incident being discussed show that avoiding even the appearance of corruption is a sucker’s game?

          • wysinwygymmv says:

            Doesn’t the incident being discussed show that avoiding even the appearance of corruption is a sucker’s game?

            Only if you assume that it represents an incidence of corruption rather than a series of coincidences, which would be begging the question.

            If it was not an incidence of corruption, then it highlights how important it is to avoid even the appearance of impropriety because even weird coincidences will be spun as corruption by half the electorate.

          • Randy M says:

            But half the electorate believing it is evidence of corruption didn’t prevent (or even hinder, afaik) Hillary Clinton from becoming First Lady, a Senator, and Secretary of State, and at most contributed a very small amount to her recent loss. Versus not having 10,000 or whatever cash to get the political career going.

          • Moon says:

            “even weird coincidences will be spun as corruption by half the electorate.”

            This is only true when the population is immersed in fake news. In that case, weird coincidences will be found whenever needed to spin a conspiracy theory around. Life is full of weird real or engineered coincidences. Imagine having an American citizen presidential candidate whose middle name happened to be the same as Saddam’s last name. Fake news creators used that fact to weave a birther conspiracy about his illegitimacy, and another one about his supposed sympathy with terrorist organizations and hatred of America.

            It was not a coincidence that all of one presidential candidate’s emails were hacked, and none from the other side. But it certainly supplied lots of statements to distort and to weave the tapestries of fake news narratives around.

          • houseboatonstyxb says:

            @ Randy M.
            Versus not having 10,000 or whatever cash to get the political career going.

            You can accept the briber’s cash by some safer delivery method. (And cheaper, too. The broker, his staff, and other conspirators would want a cut; and one of them could still expose the briber later.)

          • houseboatonstyxb says:

            @ David Friedman
            The obvious explanation is that when a trade made money the broker assigned it to her, when it lost money to the Purdue person, thus transferring money from him to her as a concealed bribe.
            I would be interested to know if you have an alternative explanation of why she went into that market and how she was so successful.

            Here is an example of that kind of reasoning. Perhaps it’s akin to ‘the God of the Gaps’.

            Scott posted on the ‘crying wolf’ thread:
            Suppose you’re talking to one of those ancient-Atlantean secrets-of-the-Pyramids people. They give you various pieces of evidence for their latest crazy theory, such as (and all of these are true):

            1. The latitude of the Great Pyramid matches the speed of light in a vacuum to five decimal places.
            2. Famous prophet Edgar Cayce, who predicted a lot of stuff with uncanny accuracy, said he had seen ancient Atlanteans building the Pyramid in a vision.
            3. There are hieroglyphs near the pyramid that look a lot like pictures of helicopters.
            4. In his dialogue Critias, Plato relayed a tradition of secret knowledge describing a 9,000-year-old Atlantean civilization.
            5. The Egyptian pyramids look a lot like the Mesoamerican pyramids, and the Mesoamerican name for the ancient home of civilization is “Aztlan”
            6. There’s an underwater road in the Caribbean, whose discovery Edgar Cayce predicted, and which he said was built by Atlantis
            7. There are underwater pyramids near the island of Yonaguni.
            8. The Sphinx has apparent signs of water erosion, which would mean it has to be more than 10,000 years old.

            She asks you, the reasonable and well-educated supporter of the archaeological consensus, to explain these facts. After looking through the literature, you come up with the following:

            1. This is just a weird coincidence.
            2. Prophecies have so many degrees of freedom that anyone who gets even a little lucky can sound “uncannily accurate”, and this is probably just what happened with Cayce, so who cares what he thinks?
            3. Lots of things look like helicopters, so whatever.
            4. Plato was probably lying, or maybe speaking in metaphors.
            5. There are only so many ways to build big stone things, and “pyramid” is a natural form. The “Atlantis/Atzlan” thing is probably a coincidence.
            6. Those are probably just rocks in the shape of a road, and Edgar Cayce just got lucky.
            7. Those are probably just rocks in the shape of pyramids. But if they do turn out to be real, that area was submerged pretty recently under the consensus understanding of geology, so they might also just be pyramids built by a perfectly normal non-Atlantean civilization.
            8. We still don’t understand everything about erosion, and there could be some reason why an object less than 10,000 years old could have erosion patterns typical of older objects.

            I want you to read those last eight points from the view of an Atlantis believer, and realize that they sound really weaselly. They’re all “Yeah, but that’s probably a coincidence”, and “Look, we don’t know exactly why this thing happened, but it’s probably not Atlantis, so shut up.”

            Your argument above seems to assume that we cannot reject the Atlantis claim (cf that Hillary and her broker must have cheated) without giving some explanation more interesting than coincidence.

          • Moon says:

            Or look at it this way, if Mitt Romney had made the same amount of money trading cattle futures, and it were being brought up during his run for president, would you Right Wingers assume that his trading had been somehow corrupt and fraudulent, even though there was absolutely no evidence that it was?

          • nyccine says:

            Or look at it this way, if Mitt Romney had made the same amount of money trading cattle futures, and it were being brought up during his run for president, would you Right Wingers assume that his trading had been somehow corrupt and fraudulent…

            Yes, as it’s fairly blatant what happened.

            …even though there was absolutely no evidence that it was?

            It wouldn’t hurt, just for once, to try. To put in the effort.

          • Jonathan says:

            Or look at it this way, if Mitt Romney had made the same amount of money trading cattle futures, and it were being brought up during his run for president, would you Right Wingers assume that his trading had been somehow corrupt and fraudulent, even though there was absolutely no evidence that it was?

            Romney is probably not the best example to use for this. He was a reasonably successful businessman prior to entering politics, so him getting involved with a financial instrument (i.e. futures) and being successful at it is neither unexpected nor unusual.

            I would propose you use McCain as the opposite of Hillary. In that case, yes, it would be unusual and a potential point of concern. Of course, I’m not entirely “right-wing.”

          • “Your argument above seems to assume that we cannot reject the Atlantis claim (cf that Hillary and her broker must have cheated) without giving some explanation more interesting than coincidence.”

            The first question is why she went into the cattle futures market in the first place. She had no experience, I don’t think has any evidence before or after of being a compulsive gambler. Next the fact that she went into it with a broker who was violating the rules on trading and shortly thereafter got sanctioned for it. Next the fact that another customer of that broker was a high up person associated with the largest employer in the state her husband was attorney general of, was about to become governor of (elected shortly after she started trading). All of that would be substantial grounds for suspicion.

            Suppose your prior is .1 corrupt, .9 compulsive gambler who somehow hid the fact before and after. She now makes a series of trades whose success is something like a one in a million chance. Add Bayes Theorem and shake.

          • Moon says:

            The problem really has to do with the fake news systems of the Right Wing. If McCain had made the same amount of money trading cattle futures, the Left would never have brought it up. no one would even know about it..Because the Left is far far less into fake news, although I am sure there must be a few such media outlets.

            The fake news formula is: Look at the Dem candidate for president. Assume that they are corrupt, criminal, evil, stupid, weak etc. Look at every single thing they have ever done or said in their life. If you don’t have enough material, get Russia to hack their emails.

            After you look at every single thing they have ever done or said in their life, then spin a tapestry of distortions and lies around each thing they have done or said, that explains why each of those things proves that they are corrupt, criminal, evil, stupid, weak etc.

            Obama, being a reserved and proper introverted individual really must have frustrated them by not trading cattle futures, having a foundation etc. They had to stoop to repeating his middle name over and over, since it was the same as Saddam’s last name. And then noticing that he spent some time as a child outside the U.S. and weaving that into a tale of him not even being born in the U.S. When he released his birth certificate, they had to come up with reasons why that still wasn’t good enough proof that he was born here.

            But, luckily for the Right Wing fake news machines, most politicians are extroverts. And so most Dem politicians have engaged in a lot of activities– every single one of which is supposedly proof that they are corrupt, criminal, evil, stupid, weak etc., according the Right Wing fake news media empires.

          • cassander says:

            @moon

            >The problem really has to do with the fake news systems of the Right Wing. If McCain had made the same amount of money trading cattle futures, the Left would never have brought it up.

            You mean the way they never brought accusations of trump’s shady business dealings?

            >The fake news formula is: Look at the Dem candidate for president. Assume that they are corrupt, criminal, evil, stupid, weak etc.

            And what about assuming republicans are racist, sexist haters? that’s just good journalism?

            >After you look at every single thing they have ever done or said in their life, then spin a tapestry of distortions and lies around each thing they have done or said, that explains why each of those things proves that they are corrupt, criminal, evil, stupid, weak etc.

            YOu mean like draggung up accusations against trump from ddecades ago, or how Romney being a bully in highschool proves he’s unfit for office?

            >Obama, being a reserved and proper introverted individual really must have frustrated them by not trading cattle futures, having a foundation etc.

            Introverts don’t trade cattle futures now? What on earth are you talking about

          • @Moon:

            I gather you don’t actually have an alternative explanation of the evidence in the cattle trading case. Just a statement of faith.

          • houseboatonstyxb says:

            @ David Friedman
            Suppose your prior is .1 corrupt, .9 compulsive gambler who somehow hid the fact before and after. She now makes a series of trades whose success is something like a one in a million chance. Add Bayes Theorem and shake.

            Heh. You have just taken the form of your own argument to absurdity. In both versions, you first set out your preferred conclusion X (corruption). In the first version you challenge someone else to suggest a Y that accounts for the few points of evidence you chose for supporting X (but I think an Atlantis-type deconstruction of those points would sound weaselly and boring). In the second version you provide your own Y, colorful but not realistic (gambling).

            As I said above, the whole idea of Hillary using an investment brokerage to transfer bribes is in itself ridiculous. The situation would be substantial grounds for suspicion — therefore she would not do it; she would choose some safer transfer than a brokerage.*

            * If she were willing to accept bribes at all.

          • Earthly Knight says:

            She started with a thousand dollars, ended up with a hundred thousand, making bets in a market she had no expertise in. Her broker was also the broker for a high up person in Purdue Chicken, which had extensive operations in the state her husband was governor of.

            This is not an accurate summary of what took place.

            1. James Blair, the attorney at Tyson Foods, was an expert in the cattle futures market and made many of the trades on Hillary’s behalf. He was apparently quite successful when trading for himself as well.

            2. She put up $1,000 as collateral, but her broker (in violation of margin rules) allowed her to acquire contracts as large as $1.4 million. I do not know what the odds are of making $100,000 on the cattle futures market when you’re playing around with that much money, but I’m certain they’re somewhat higher than one in a million.

            3. Hillary’s trading continued until July of 1979, when she became pregnant with Chelsea. But Don Tyson, the owner of Tyson Foods, endorsed Bill Clinton’s opponent in the 1980 governor’s race in Arkansas. If the money Hillary ended up with was part of a bribe, Tyson was evidently dissatisfied with whatever he received in exchange.

            So here’s the alternative explanation you asked for: Clinton made some obscene gambles on the cattle futures market and, with the help of an experienced trader, got moderately lucky. There is not even prima facie evidence that a crime occurred here, much less evidence that Clinton knowingly committed one.

          • “So here’s the alternative explanation you asked for: Clinton made some obscene gambles on the cattle futures market and, with the help of an experienced trader, got moderately lucky. ”

            Thanks. Do you have an explanation of why she would have chosen to do so? She was making bets that could have entirely wiped out the family assets. I don’t think she has a record as a gambler.

            I also don’t think converting $1000 to $100,000 counts as only moderately lucky, especially since she was, on average, betting against the direction the market was moving.

            From the Wiki article:

            ” Clinton made her money by betting on the short side at a time when cattle prices doubled.”

            and

            “One analysis performed by Auburn University and published in the Journal of Economics and Finance claimed to find that the odds of a return that large during the period in question were about one in 31 trillion.”

            I haven’t read the article so can’t offer an opinion as to whether it adequately supports the conclusion.

            ” He was apparently quite successful when trading for himself as well.”

            Is there a public record of his transactions during the same period showing that he made money on them? If so, that would indeed be evidence against my thesis. I was presuming that there was not since I have never seen the claim raised.

            ” But Don Tyson, the owner of Tyson Foods, endorsed Bill Clinton’s opponent in the 1980 governor’s race in Arkansas.”

            Do you see anything unusual about a business that wants political support doing favors for both sides? He endorses one side in case he wins, bribes the other side in case that side wins.

            In any case, thanks for offering a response to my argument. For the reasons given above, I do not find it convincing.

          • “You can accept the briber’s cash by some safer delivery method.”

            We are talking about $100,000, long enough ago to make it the equivalent of three or four hundred thousand today. That was more than the total assets of the Clintons. If you got it as a suitcase full of hundred dollar bills, how do you then explain what you do with it thereafter?

            On the other hand, if you got it openly and can claim you got it honestly, you now can buy a better house, a car, whatever things you wanted money for.

          • “she would choose some safer transfer than a brokerage.”

            What do you view as a safer way of transferring $100,000 to a state governor? If Hillary or Bill had accepted consulting fees on that scale don’t you think someone would have noticed? If there is no recorded source of the money how do they explain when they spend it?

            This is a brokerage that got sanctioned for not keep proper records of transactions. Given that the broker was willing to do that, what’s difficult or dangerous about assigning mostly winning trades to one customer, mostly losing trades to the other?

            A series of events consistent with my explanation did not result in destroying her husband’s career. Why would it have done more damage if my explanation is correct?

          • John Schilling says:

            Or look at it this way, if Mitt Romney had made the same amount of money trading cattle futures, and it were being brought up during his run for president, would you Right Wingers assume that his trading had been somehow corrupt and fraudulent, even though there was absolutely no evidence that it was?

            I’m a Libertarian, but you seem to lump us into some they-all-think-alike Right-Wing block, so I guess I get to speak for the Right on this.

            Yes. Hell Yes. Nobody is as good a trader as Hillary Clinton claims to have been, and the usual warning signs for fraud were there. Romney may have been a better businessman than Clinton, but he’s not that good, and I at least would have called him out on it. I doubt I’d have been the only one.

            Seriously, nobody’s that good, and if they were it would be stupid to have gone into politics. If Hillary and/or her advisers could consistently trade even half as well as Hillary allegedly did in 1978-79, starting from Hillary’s nominal $1000, they’d have owned literally every material thing on the planet before Bill Clinton was even nominated for the Presidency.

            But those are counterfactuals. This is the year of Donald J. Trump, for real. A man who ran for the White House largely on the basis of his business acumen. And I wasn’t the only one on the right pointing out that his claimed net worth was grossly overstated, his “business acumen” was mostly in marketing and self-promotion rather than organization and wealth creation, and that he seems to have defrauded a lot of innocent people along the way.

            So, yeah, “The Right” is willing to call out “Right Wing” politicians for being crooked businessmen, or if it comes to that for being crooked politicians only pretending to be businessmen.

          • rlms says:

            From point 2 of Earthly Knight’s comment, it seems that she had a huge amount of leverage. If you have millions of (borrowed) dollars to play with, a few hundred thousand in profit is not that unlikely (and it is misleading to talk about her making $1000 into $100,000.

          • John Schilling says:

            From point 2 of Earthly Knight’s comment, it seems that she had a huge amount of leverage

            But that takes you straight back into fraud territory. It’s illegal to extend that much leverage. It’s also unbelievably stupid, unless it is being done to conceal a gift.

            I propose to loan you a million dollars with which you will play a single round at a no-limits craps table. If you win, you will pay me back the million with interest – I get $1.02 million, you get $0.98 million. If you lose, your craps-playing account is empty so you don’t have to pay me back. That is not a rational transaction for any banker or other creditor; it is a straight-up gift from me to you with an expected value of half a million dollars.

            Which is exactly what Hillary’s critics have been saying for decades. Someone gave Hillary a big chunk of money for no apparent reason, and structured it so the illegality was buried in the regulatory details of commodity-market margin requirements that bore people to death rather than leaving it in the no-giving-briefcases-of-cash-to-politicians realm that excites people with dreams of bringing down the wicked and corrupt.

          • Cerebral Paul Z. says:

            Hillary’s craps-playing account was in fact empty at several times: she failed to make good on a few margin calls, with no consequences.

          • Betty Cook says:

            Let me try to summarize what is known about Hilary Clinton’s cattle futures trading. This is ultimately from the Clintons’ tax records, released after Bill Clinton was president, and records from the Chicago Mercantile Exchange, released after the fuss started. What started the fuss was the New York Times spotting it after spending a couple months going over the Clinton’s financial records. The original events started 1978 or so; it didn’t come out until 1994. My sources are New York Times and Washington Post articles from 1994, Wikepedia, and my memory of a very detailed analysis I read back after the matter came out.

            1. When Bill Clinton was Attorney General and soon would be Governor of Arkansas, Hillary Clinton started trading in cattle futures, a highly volatile market she had no experience with.

            2. Her broker was someone with a past connection to Tyson Foods, the largest employer in the state, and she was being advised by a lawyer who was both a family friend of the Clintons and outside counsel for Tyson. The broker had previously been in hot water with the Exchange for ethics and record keeping problems.

            3. Over the next 10 months she gambled on this exchange in a very large way, buying on margin, to the extent that if she had been moderately unlucky (that is, hit by a swing in the wrong direction of a size that tended to happen about every couple weeks) she would have wiped out her and her husband’s entire net worth.

            4. She had losses as well as gains; when the losses got large, her broker did not make any margin calls. She ended up making close to 100,000 dollars. A fair amount of this was from short sales, a bet that the market will go down.

            5. After 10 months she quit the market, saying later, after the fuss was happening, that once she was pregnant she lost her taste for risk taking.

            6. After the fuss started in ’94, the White House got a former chairman of the Exchange to look at the records. His conclusion was that she had “violated no rules in the course of her transactions”, but on the question of whether profits from other accounts had been allocated to her account, his comment was that the record “doesn’t suggest that there was allocation, and it doesn’t prove that there wasn’t”.

            7. The broker was investigated for violation of margin and record keeping rules during the period of the Clinton trades and ended up with a large fine and a 3-year suspension from trading.

            So I see two possible interpretations. One is that a novice trader, with advice from an experienced one, made fantastic amounts of money in a market where (according to one source I read) about 3/4 of people lose money, won both on bets that the market would go up and bets that it would go down, in the course of which she took a large chance of completely wiping herself and her husband out. I expect that bankrupcy for this sort of thing while he was governor would not have been good for Bill Clinton’s political career.

            The other is that Tyson Foods wanted to bribe the governor of Arkansas, who was not expecially well off at the time, found a crooked broker working in a market that could be depended on for large swings up and down, had him make separate trades betting both ways, and allocated which trade went to the Clinton account and which got paid for by Tyson after seeing which one won and which one lost. They made the trades implausably large because they didn’t want it to take forever–it took most of a year as it was. They used this roundabout way of transferring money so that the Clintons could claim a legitimate source for the money if it ever became public; in fact, assuming the bribery happened, this worked. The matter did not come out at all until about 15 years later and then only because the Clintons released tax records after he had won the election and the Times took the trouble to dig through them.

            You can write this off as “no evidence”, and there was certainly no freezer full of dollars or recording of phone calls trying to auction off a Senate seat. But that was what convinced me back then that, unhappily, the Clintons had in fact accepted large bribes. I could not believe that Hillary Clinton took those kinds of risks with her and her husband’s future–unless she wan’t taking risks. That has also, I am sure, colored a lot of people’s reactions to more recent accusations.

            I have gone to the trouble of writing this up because whether or not you find this as convincing as I did 20 years ago, it may help explain to you why other people are convinced. Note that at that time it had nothing to do with a possible first woman president, but with the Bill and Hillary political team. Note also that this is why it was clear to me, once the recent primaries were over, that we were almost certainly going to end up with a dishonest president.

            Disclaimer: I am married to David Friedman. This should not be taken as saying that we agree in all things.

          • houseboatonstyxb says:

            There’s an error in yoyn post:

            3. Hillary’s trading continued until July of 1979, when she became pregnant with Chelsea.

            Per wiwipedia, she was born Feb 27,1980

          • IrishDude says:

            @Houseboatonstyxb

            Why does that birthday, which could be 8 months after pregnancy, make the info wrong?

          • houseboatonstyxb says:

            @ Betty Cook
            I could not believe that Hillary Clinton took those kinds of risks with her and her husband’s future–unless she wan’t taking risks.

            Heh. That’s like the argument I used in another comment — that the Clintons were too cautious and canny to try such a brokerage charade. Tho the chance of winning that money honestly was very low, still it was non-zero. Whereas a chance of the Clintons agreeing to such a brokerage plan was like Queen Victoria smoking a cigar.

            So, when you eliminate the impossible, whatever remains, however improbable….

            There are other possibilities. For one, Hillary innocent, no one plotting bribery. By some combination of luck, good advice, and her own wonkish study, her bets kept paying off. Hillary wanted to quit while she was ahead, and before her success attracted attention (as it eventually did).

          • houseboatonstyxb says:

            @ IrishDude

            Some people see her trading as just something to do during the pregnancy. An incorrect date on the pregnancy can confuse that discussion.

          • suntzuanime says:

            Are… are you aware that pregnancy often predates birth by several months?

          • “Whereas a chance of the Clintons agreeing to such a brokerage plan was like Queen Victoria smoking a cigar.

            So, when you eliminate the impossible, whatever remains, however improbable….”

            You are aware that the facts of the trading did not become known until many years later, at which point the opinion of the expert quoted in the Wiki page was that there was no way of knowing whether or not the broker had cheated to assign winning trades to Hillary and losing trades to someone else?

            So why do you regard a fraud that only became suspected, and could not be proved, long after as a result of the Clintons making their tax returns public and the NYT going through them carefully, presidents being more newsworthy than governors, as terribly risky?

            “There are other possibilities. For one, Hillary innocent, no one plotting bribery. By some combination of luck, good advice, and her own wonkish study, her bets kept paying off. Hillary wanted to quit while she was ahead, and before her success attracted attention (as it eventually did).”

            That does not explain why she took the gamble in the first place.

          • “An incorrect date on the pregnancy can confuse that discussion.”

            Eight months before birth is about when one would expect her to know she was pregnant. So where is the incorrect date?

          • Betty Cook says:

            @ houseboatonstyx

            You suggest the possibility that Hillary Clinton was innocent, no one plotting bribes, just luck and brains. (paraphrased–I haven’t figured out how to quote if I can’t reply to you directly because of the depth of the thread.) That of course was my first possibility in my long post, that a novice trader with experienced advice was amazingly lucky. I don’t believe it because if that is true, she was incredibly reckless–someone doing a few trades to gamble a bit and pass the time does not bet her family’s entire future on it, repeatedly–as well as almost incredibly lucky. You have not addressed the fact that what she was doing, if innocent, was the kind of behavior you expect from someone with a serious gambling problem rather that an investor. (Or if you did, sorry, I missed it–long thread.)

            You also say that the Clintons accepting such a brokerage plan as cover for a bribe was like Queen Victoria smoking a cigar, and suggest that the Clintons were too cautious to be willing to risk it. Why do you think that using the brokerage plan to cover a bribe was risky? Assuming the bribery actually happened, they did in fact get away with it. Mr. and Mrs. Governor Clinton never got called on it; and when Mr. and Mrs President Clinton did, many years later, there was never any official investigation, much less any prosecution. Just one more scandal paid attention to chiefly by those more interested in financial than sex scandals, which I believe is a minority of the population.

          • AnonEEmous says:

            I’m going to come right out and say that I don’t really understand the argument of “this was so blatant, that it would be stupid for her to do”. Not just on the level of “she got away with it”, but on the level of “Bosnian sniper fire”, “E-mail scandal”, and so forth. Hillary routinely does stupid things that are so blatantly stupid that you wouldn’t think anyone would do them except turns out someone did and her name is Hillary Rodham Clinton. To slip into the language of this blog, what you have yourself there is a prior that badly needs updating.

          • houseboatonstyxb says:

            @ Betty Cook
            You can write this off as “no evidence”, and there was certainly no freezer full of dollars or recording of phone calls trying to auction off a Senate seat.

            Thank you very much for a neat summary at my reading level. But was there no ‘hard’ evidence at all? Does our disagreement boil down to Queen Victoria, ie which way did the Clntons’ caution point (against risking their own money, or against risking bribery)?

            For example, I’d call the Melamed review, ‘hard’ if it had gone against the Clintons. As is, Clinton hired Melamed, so M. might have some bias, so parts of the review may have been kind of squishy.

            I have a couple more simple questions, if I may, but nothing to lead into bramble patch details.

          • One potential piece of hard evidence, as I think I mentioned, would be the financial records of the broker customer who is presumed to be the source of the money. If the theory is right, he should have lost, over the same period, about as much as Hillary won. My guess is that that information is not available–I don’t even know if he is still alive.

            I would take a reliable set of customer financial records clearly inconsistent with the theory as pretty good evidence against. Short of that, it seem to me that the case for is very strong, for reasons I’ve already explained.

            One obvious problem with finding evidence either way is that the putative bribe was only discovered long after it was paid.

          • houseboatonstyxb says:

            @ David Friedman
            One obvious problem with finding evidence either way is that the putative bribe was only discovered long after it was paid.

            Wasn’t the core — “First Lady, a novice trader, makes incredible profit [so she probably cheated somehow]” — in public discussion at the time (~1979)?

          • “Wasn’t the core — “First Lady, a novice trader, makes incredible profit [so she probably cheated somehow]” — in public discussion at the time (~1979)?”

            In 1979 she wasn’t the First Lady, unless you mean of Arkansas. Bill Clinton didn’t become president until 1993. The fuss started in 1994, after the Clintons released their tax records and the NYT went over them.

          • houseboatonstyxb says:

            @ David Friedman
            > > “Wasn’t the core — “First Lady, a novice trader, makes incredible profit [so she probably cheated somehow]” — in public discussion at the time (~1979)?”

            > In 1979 she wasn’t the First Lady, unless you mean of Arkansas. Bill Clinton didn’t become president until 1993. The fuss started in 1994, after the Clintons released their tax records and the NYT went over them.

            First Lady of Arkansas, of course. In 1979-1980 merely standing in the motte of “Hillary, a novice trader, makes incredible profit” would have attracted unwanted local curiosity. Bailey Cigar or no cigar, Queen Victoria wouldn’t smoke even a petite ladylike cigarette in public (unless to make some rhetorical point, and even so, not while hiding real cheating).

          • As First Lady of Arkansas her and her husband’s taxes were not public information. That only happened when he ran for president. The fact that she had made that money did not become public until then.

      • dwietzsche says:

        It’s still definitely a marketplace. It’s just “corresponds to reality” is a boutique quality of a political description. Only a certain kind of epistemological hipster cares about it.

    • James Miller says:

      If Trump comes anywhere close to being as bad as the left fears, his Presidency will help SJWs. But if Trump has a successful Presidency his election will doom SJWs to irrelevance in most of society (although sadly not the part I work in.)

      • Matt M says:

        What if Trump fulfills my expectations and is a boring standard President (in which case he will not be “successful,” will break most of his campaign promises, economy and foreign affairs will probably get worse, etc.) but still falls short of all of the ridiculous hyperbole the left has insisted he will bring about?

    • Jiro says:

      I pointed out before the election that that sounded like motivated reasoning. Scott described a scenario where Trump’s election helped SJWs. He didn’t give a reason as to why that scenario was more likely than other scenarios where the opposite thing happened (and didn’t even seem to consider them).

      • liskantope says:

        I suppose Scott would have had to put forth an argument (maybe by citing examples from history?) that a major victory for one side in a cultural divide tends to increase polarization. I feel from personal experience that this is absolutely the case, but it might be difficult to objectively argue it.

    • liskantope says:

      I felt similarly to Scott before the election, and in the initial aftermath, my worst fears seemed to be confirmed. A week and a half later, and my from my vantage point (hundreds of left-wing friends on Facebook and opinion columns from left-wing sources) things are beginning to look a lot more encouraging. Many seem to be asking themselves, “How do we fight for our values now in the most productive and least obnoxious or alienating way possible?” Anyway, my impression of the left’s reaction so far is pretty much the same as thepenforest’s impression.

      • Reasoner says:

        Hypothesis: Many SJ people are fundamentally fear driven. They’re afraid of being called a racist, sexist, etc. Now that they’re afraid of Trump they’re changing their tune.

        • hlynkacg says:

          Fuck rationalist dogma. Fear is the original mind killer.

          • Saint Fiasco says:

            Supposedly politics is a mind killer because in The Ancient Environment™ people were afraid that if the person they supported for leadership lost then they could be ostracized or killed. Voting in secret wasn’t a thing back then.

      • cassander says:

        what planet do you live on? the anti-trump people are literally rioting

        • Whatever Happened To Anonymous says:

          There seems to be a honest struggle among Democrats right now regarding this subject (probably some American democrat will know better). I like to contrast this article by Vox, with this one in Slate*

          *Yes, Vox and Slate have a lot of writers, but Lopez and Bouie are both prolific and established within each site.

          • cassander says:

            My facebook feed is almost entirely filled with people claiming trump is a literal nazi who stole the election. I have seen a few honest attempts to grapple with reality, but they are in a decided minority, most definitely sidelined in favor of crying demonstrably false wolves. I’m seeing this behavior even among people I know to be intelligent, relatively well informed. Many are even conservative or libertarian leaning. Maybe my facebook feed is uniquely bad, for whatever reason, but it is decidedly not inspiring confidence in the left’s ability to deal rationally or to respond in any way besides screaming racist ever more hysterically.

          • suntzuanime says:

            My facebook feed is mostly filled with people talking about sports or thanksgiving or whatever. There’s some talk about rigged voting machines and neo-nazis on CNN, but mostly life goes on. Maybe my facebook feed is uniquely good?

            Facebook is not really the place for honest attempts to grapple with reality anyway.

          • Whatever Happened To Anonymous says:

            You’ll just have to hope it’s not the people on your facebook feed that set the eventual Democrat agenda.

          • cassander says:

            @suntzuanime

            My facebook feed used to look like that. I want it back. I used to unfollow people with a habit of posting political stuff I find obnoxious, if I did that now, I’d be unfollowing everyone I know. ANd while I agree that facebook is a bad method for finding truth, it’s probably a good method for finding out the zeitgeist.

            @Whatever Happened To Anonymous

            the democratic agenda ultimately gets set by what appeals to the sort of people in my facebook feed.

          • ” but it is decidedly not inspiring confidence in the left’s ability to deal rationally or to respond in any way besides screaming racist ever more hysterically.”

            Not limited to the left. I’ve been having facebook arguments on a libertarian group with people who insist that Bannon is a self-identified figure of the alt-right and that if I disagree I must be a trump supporter even if I say I’m not. Others (I’m not sure which were on a libertarian group) that Trump is an anti-semite, that gay and trans people are at terrible risk, and much else.

          • cassander says:

            @david friedman

            I’ve seen posts from my gay friends talking like their lives are literally in danger, or that they’ll be rounded up and put into camps. This is Trump, a new yorker who spent most of his life as a democrat, and who more pro gay rights than the democratic party was in 2011. Trump Derangement Syndrome is already at least as bad as Bush Derangement Syndrome ever was.

    • shakeddown says:

      I’m less sure of it than I was, but I think we should wait until April to decide – Trump’s been pretty quiet since the election, and so far we’ve mostly just had responses to the fact of losing (which may have a moderating effect) and not to any of his actual statements or policies (which may be polarizing).

    • stillnotking says:

      I was in Scott’s camp during the campaign, but I have updated my beliefs based on the general reaction to Trump’s election. The SJWs seem to be in full rout, and their reaction has been frankly kind of pathetic (cry-ins, pleas to Trump not to be mean to them, indulging in fantasies about gaming the electoral college), while the anti-SJW types are emboldened and energized. The identitarian left are gobsmacked that their shaming tactics really didn’t work this time. Their enemies seemed equally surprised at first, but recovered faster.

      Opposition to PC culture was more widespread than I thought it was, apparently.

    • dave35 says:

      I found this little parable interesting: http://blog.ayjay.org/uncategorized/so-its-like-this/

      For years now you’ve been hanging out with your friends at a nice little bar, a place you’re all comfortable with. It’s not perfect; it can get a little raucous sometimes — not everyone there is perfectly behaved, to say the least —; but you sort of know when to drop by, and where the quieter corners are. (There’s a big flashy noisy club around the corner, owned by the same people who own this bar, but you never go there. Not any more. It used to be okay, though.)

      But some bad shit has gone down recently, shit that has affected all your friends (though some more than others, and people whom you don’t know most of all) and things have changed. Lately, whenever you’ve dropped by, a good many of your friends are having Primal Scream therapy sessions in the bar. You understand why they’re doing this, and you don’t blame them; and from the sympathetic looks on the faces of some quieter folks around, you discover that they don’t blame the Screamers either. In fact, from time to time almost everyone lets out a scream or two.

      This goes on for a while. And eventually you realize that it’s not going to stop anytime soon. Not only are there a good many people who simply need to scream, there’s also an emerging sense within the group that to stop screaming would be, implicitly, to say that everything is more-or-less okay.

      When someone suggests that the management gently ask the screamers to go elsewhere, you just laugh. It’s not that kind of management. They’re hands-off to a fault, and in fact some of the shit that has gone down has gone down in the bar. So while it may have been a nice social place for you, it hasn’t been so great for everyone else. Which, when you think about it, doesn’t help your attitude towards the place.

      Lately when you’ve been walking by at your usual time, you’ve paused … and then kept walking. You haven’t been there in a while. Somehow going home and reading a book or watching a movie seems better for your spirit. Your friends may be wondering where you are, and you feel bad about that, and you really miss them, but … it really belongs to the Primal Scream group now. Which is fine, you guess — they need somewhere to meet. But you probably won’t be back.

      One effect of the election is that … well, not “moderate” exactly, but *peaceful* voices on all sides are just getting sick of all this and going back to looking at cat memes. At least that’s what I’ve been doing. I’m not sure whether that will have the net effect of radicalizing the remaining discourse as only the angry voices remain on the field or just making the whole thing less relevant. Or both.

    • Scott Alexander says:

      I agree that the early signs have been encouraging. I’m not changing my prediction yet, because the long-haul is a very different animal than the question of whether to express doubt in the week after Trump’s election.

      Also, I want to take this opportunity to clarify/predict something in writing. Some people have thought they’re challenging my predictions in “Crying Wolf” by predicting that there will be more open racism in the US / more coverage of open racism in the US in Trump’s term. I agree with this prediction. I think it will be an artifact of everybody obsessing over it and giving CNN interviews to white supremacists and stuff, but I do think it will be true and I don’t want it to be counted against my predictive accuracy when it happens.

  16. Controls Freak says:

    As a follow-up to my lengthy comment on SIGINT, I’m going to do something similar for more domestic tech law. There have been several big topics in the news the last couple years, and again I find myself having a perspective that seems to go against a large portion of the public. This comment will be a bit different than the last one. In particular, the subject of SIGINT is necessarily a bit more vague, as secrecy is a necessary component. General concepts like evaluating oversight and structure of government are really important. Domestically, we tend to have a lot more detail and clarity. Unfortunately, I think there has been a lot of misunderstanding and misinformation out there in terms of both law and fact.

    With that in mind, this comment is intended to be a fact-intensive overview of several major topics in domestic tech law. I will respond to some criticisms which I feel are widespread, though as wintermute92 pointed out in the last thread, some of that may be somewhat biased toward the most vocal/radical critics. I don’t intend to show that law enforcement is perfect or that any particular statute is perfect. In my zeal to correct what I think are popular mistaken positions, I may not focus on more moderate positions that I think are more tricky and genuinely debateable. Finally, at the risk of triggering The John Sidles RoboBan again, I will try to source most of my claims in advance, so fair warning in case reading copious amounts of legalese causes acute narcolepsy. I won’t try to source all the articles that have led me to believe that a particular criticism is widespread. There will be some amount of personal judgment here, but if you think I’m setting up a strawman at any point, please ask, and I’ll provide another bundle of links.

    I’ll begin with an active topic that has immediate relevance:

    I. The Rule 41 Update

    Software like TOR is popular these days. It provides a new element of online privacy and anonymity, and this has a lot of benefits. That being said, from the perspective of a LEO investigating computer crime, it can cause an impenetrable dead end. If you cannot locate a computer, you can’t investigate who it belongs to. Also popular (but with fewer societal benefits) is software which infects millions of computers (or IoT devices), allowing the user who controls this software to utilize those millions of devices for a variety of nefarious purposes.

    Rule 41 of the Federal Rules of Criminal Procedure governs the ability of magistrate judges to issue search warrants. With the two major problems mentioned above in mind, the Judicial Conference has submitted an update to that rule, it was approved by the Supreme Court on 4/30/16, and if Congress doesn’t step in to stop it, it will go into effect on 12/1/16. So this is a popular topic right now.

    1. The Rule 41 Update is about jurisdiction, not justification.

    From the I Wish I Had To Construct A Strawman For This Department, a lot of people seem to think that the Rule 41 update will allow police to get a warrant to search your computer just because you use TOR. This is a completely false representation that doesn’t survive even a cursory engagement with the rule. Just flip back and forth between the rule and the update. Notice which sections are being updated: jurisdiction and receipt issuance. There is absolutely no change to the probable cause requirement of the Fourth Amendment (no mere federal rule could possibly do such a thing anyway), and there is absolutely no reason to believe that any judge would accept a claim that using TOR provides sufficient probable cause to justify issuing a search warrant. Besides, even if we hypothesize such a maniac judge, that hypothesis works just as well in a pre-Rule-41-Update world as it does a post-Rule-41-Update world.

    Finally, this particular failure of reasoning would have us accept the idea that this rule is obviously unconstitutional. I have a pretty strong revulsion to claims like this. My revulsion is slightly reduced if Congress is the one making the new law all by itself, but as I mentioned above, the Supreme Court has already given this rule the OK. That doesn’t mean that some uses of the new rule might end up being unconstitutional, but it should be enough to make you think that perhaps it’s not obviously and completely unconstitutional without some real analysis. Ok. Let’s move on. Sorry I even had to bring this up. (I’m not even going to bother with the totally genuine headlines which proclaimed the rule, “Allowed the FBI to hack anyone,” even though by this point, you should be able to tell that “anyone” means “anyone for whom they have probable cause and a search warrant”. Sigh.)

    2. District judges can already issue these warrants.

    A specter that hangs over the remaining substantive complaints is that a lot of people don’t understand the structure of the federal judiciary. District judges are appointed by the President and confirmed by the Senate. They appoint magistrate judges to help them out with routine matters, because the judiciary is already overworked. (Sidenote: This is why you’ll sometimes see SCOTUS cases where the “parade of horribles” includes a massive increase in cases brought to the federal courts. They know the workload is high, and they’re actually concerned that the courts could be overwhelmed.) These magistrate judges only have authority through the district judge they work for.

    Now, there is a legitimate concern that we don’t want magistrates to be able to wield all of the authority of a district judge, so there are some explicit constraints on what they can do. That’s actually what Rule 41 is. It’s not a grant of authority to the judiciary, writ large; it’s not a constraint on the judiciary, writ large. It’s simply specifying a particular aspect of a district judge’s authority (issuance of warrants) that can be performed by magistrates. It’s very important to realize that Rule 41 is not a constraint on the district judge, himself! For all of the remaining complaints (you’ll see headlines, “Rule Change Would Allow FBI To Do _____”), remember that it’s almost certain that the FBI can already do the thing in question, and district judges can already issue the warrant authorizing it (unless it’s something extremely stupid and otherwise unconstitutional like I mentioned in part (1)).

    There’s still a plausible complaint here. One could argue that there is something fundamental in the qualifications/capabilities of judges or the structure of checks in our system which mean we should be particularly concerned with extending this portion of the district judge’s authority to his magistrates, but I find it rare to even see attempts to make that argument (and good ones are almost nonexistent).

    3. Judge-shopping.

    This concern at least acknowledges that the update is jurisdictional, claiming that a relaxed jurisdictional rule would allow the FBI to find the most pro-FBI judge in the country and funnel all requests through him. This claim also fails in two ways. The first, as always, is, “District judges can already authorize that.” The second is that the updated rule still has a jurisdictional limitation! Not only does this wider jurisdiction only apply to specific cases (anonymizing software and botnets), but it still requires that the magistrate be located in the jurisdiction in which activities related to the crime were committed (rather than the unknown jurisdiction in which the computer is located). Some outlets really hack this up and say the exact opposite – that they can go to judges where the crime wasn’t committed, but this is in contradiction with the text of the update.

    • Controls Freak says:

      4. “The FBI could hack millions of devices belonging to innocent people!”

      First, as always, “District judges can already authorize that.” But let’s talk a bit about how these warrants work. The case people are concerned about is botnets. Innocent people’s devices have been hacked and taken over by people who use it to commit some crime. In order to take down the botnet, they have to pursue these machines (generally, they focus on Command and Control machines, which may also belong to innocents). One thing to remember is that these machines have already been hacked! They’re already at the mercy of criminals. However suspicious you are of law enforcement, you may sometime step back and think, “There is no oversight and no constraint on what these criminals do with my machine, and they’re almost certainly acting out of malice.” From the standpoint of a risk analysis, it’s really difficult to get worked up about a small probability of law enforcement misuse.

      Anyway, the ability to search things belonging to innocents is definitely not unprecedented. One hypo I use is to suppose Person X runs a car into a building belonging to Person Y. Afterwards, X flees the scene and cannot be found. There is almost certainly probable cause that a crime was committed here, and police can get a warrant to search the scene of the accident… even if, for some reason, Person Y doesn’t want them to! There are more hypotheticals out there than I have time to think up, and this just hardly ranks as an issue for people who have much knowledge of how search warrants work in general.

      The scale of botnets also seems troubling. You’re searching a lot of computers! People with a glancing knowledge of the law can even use the correct wording, “How can you satisfy the particularity requirement (i.e., how can you make sure that you’re only searching a specific set of things)?” However, for good reason, particularity doesn’t depend on the number of items in the set. Judges don’t issue itemized warrants, saying, “You can take three hard drives with serial numbers….” Even if they did, in a digital world, there could be millions of files on those three hard drives! Instead, the particularity requirement is functional, with respect to content.

      Before fleshing this out in the digital world, I want to note that this is the same as how it’s been for physical items for a very long time. Suppose investigators gathered probable cause that an individual was trafficking and distributing drugs. It’s at a scale such that there are likely to be written records. They acquire a warrant to search the individual’s records for evidence of trafficking/distributing drugs. They enter his home, and find a room with a file cabinet. They open it and start flipping through. That document that says, “12/27/1987 Cocaine” right at the top? They can take that and spend their sweet time analyzing it. What looks like a standard picture of an old woman with children? They can’t take it or analyze it. That document that is clearly a tax return for 1987? Put it back. They’re not authorized to investigate tax fraud – they’re authorized to take things related to drugs. If they proceed to press charges for tax evasion, go into court, and say, “We found these documents while executing the search warrant on drugs. When we put them all together, we realized he committed tax evasion,” the judge is going to suppress the evidence (i.e., throw it out).

      Now, suppose that when you walked into that room, there were thirty file cabinets instead of one. You look at your partner. He looks at you. You only have a couple hours left on your shift. Didn’t expect that one. Well, you could call up thirty other cops and try to plow through it in the same manner… or you can call up one cop with a big truck and take the whole lot of ’em back to the station. You have to be careful about chain of custody and other things, but it allows you to go through the same procedure at a reasonable pace.

      Not much changes when we move to the digital world. The biggest difference is that instead of having to move thirty file cabinets, you can just take the thirty hard drives. Then, you’ll use techniques like metadata analysis or keyword searches in order to figure out which files the warrant allows you to individually analyze. A high profile example of this just happened! While investigating Anthony Wiener’s alleged sex-related crimes (analyzing a computer for which they had a warrant to search), they stumbled upon metadata that indicated a bunch of emails related to Hillary Clinton’s server. They couldn’t just jump in and check ’em out. They had to go back to a judge and ask for a different warrant, specifically for that content, even though they already physically possessed it all.

      One final variation of this claim is that particularity can’t be satisfied unless they know the specific location to be searched. Note that this claim would also kill traditional wiretaps. After all, we don’t know a priori where an incoming call is coming from. Instead, we only have a physical location which the telco is routing the call through (so that it can be intercepted). In this vein, the FBI’s Operation Pacifier warrant specified that the server would be run from Maryland. So, even though they don’t know ahead of time where someone is trying to “call” from, they can still access it. US v. Leary says:

      A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized. Even a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit. However, the fourth amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.

      They specify the particular things to be seized with as much specificity as was possible – everyone stipulates that it is not possible for them to ascertain the physical location of these computers a priori. Instead, the Pacifier warrant very particularly describes the things to be seized: specific identifying information for computers which access Websites 1-23 from the Freedom Hosting server which is being run by the FBI. US v. Meek has perhaps the most on-point quote for this:

      The prohibition of general searches is not to be confused with a demand for precise ex ante knowledge of the location and content of evidence related to the suspected violation. The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.

      All of this isn’t to say that there aren’t interesting bits out there. I usually make a lot of fun of Senator Wyden (because he panders soooo hard on tech issues), but he was part of a recent letter to DOJ, asking some detailed questions about the mechanics of probable cause and the role of hacking as an investigatory tool. I don’t want to sell this short, because there are some really good questions here (and I could spill far too much digital ink on them). Again, my goal right now is to get people in the same state on these issues.

      5. Searching computers outside the US

      There is a concern that if judges are able to issue warrants for computers whose location cannot be determined, they might search computers located outside of any jurisdiction of the US. This is absolutely true, and it is a potential problem. However, I’ll try to walk concerns back a little bit. The biggest issue is that such an action could cause foreign relations problems. This is sensible – turn it around and imagine that some law enforcement in another country got a warrant from their government to remotely search your computer. You’d likely not be happy, and you may even petition your government to snarl at them.

      The main reason why I’m not extremely concerned is because, at least to date, the types of warrants being issued have features which make it less of a concern. For anonymizing software, warrants usually target a small amount of information. In particular, they target IP addresses, MAC addresses, and other information almost entirely for the purpose of locating the computer in question. If they continue to stop at this point, the concern is alleviated somewhat. An important component of good foreign relations is openness and sensitivity to the concerns of the foreign nation. Once they’ve determined that a particular computer is located in a foreign country, they can go to that country and say, “Hey, on [EVIDENCE], we used software to determine that [COMPUTER] is located in your country. We’d like to pursue this case. What do you think?”

      So, while the most ardent of privacy/anonymity supporters will still be upset, it will be much more difficult to successfully petition the government to snarl at them. If the country does this all the time and our government thinks they’re really doing more than they admit or going after dissidents, they might lock eyes, but in many other cases (like child porn), the government will be more than happy to help with the investigation. There might be a discussion over which government gets to press charges first, but since they started off on the right foot, this discussion will probably be amiable.

      Add to this the case of botnets. Botnets are usually gigantic and have zero respect for national borders. Historically, it has taken large-scale collaboration by law enforcement agencies in many countries to go after these people. International law enforcement collaboration is not a new thing, and we have set up international agencies specifically for the purpose of fostering these collaborations and avoiding foreign relations problems.

      These are not bulletproof solutions, but the fact is that there are no bulletproof solutions to prevent all foreign relations friction. My final reason for not being terribly concerned is that I have heard no one involved in foreign relations complain about the Rule 41 update. Nothing from the White House, nothing from State, nothing from anyone whose life would be made awful by international incidents.

      • Jiro says:

        The case people are concerned about is botnets.

        No, the case that people have publically said at this moment they are concerned about is botnets. There’s a long history of laws being passed and actions being done to “stop terrorism” or “stop pedophiles” or some other innocuous reason that then get used in the broadest manner possible. It’s not as if “it’s just for botnets” is a promise we can hold anyone to.

        • Controls Freak says:

          In general, this is a possible concern. However, they haven’t said, “It’s just for botnets.” They’ve said:

          in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

          EDIT: Also, at that point, I was saying, “The case that people are worried about,” as in, “The case that people who are against this update are worried about.” Because, in the case of botnets, if the FBI goes after computers that are part of the botnet, they belong to innocent people (and there could be millions of them).

      • Montfort says:

        While investigating Anthony Wiener’s alleged sex-related crimes (analyzing a computer for which they had a warrant to search), they stumbled upon metadata that indicated a bunch of emails related to Hillary Clinton’s server. They couldn’t just jump in and check ’em out. They had to go back to a judge and ask for a different warrant, specifically for that content, even though they already physically possessed it all.

        Here’s a point I’m confused about. Presumably the warrant was for the alleged sex-related crimes and wouldn’t have covered those emails. Could they have gotten the metadata without a warrant? When they applied for the new warrant, did they justify it by saying “well, doing this unrelated search we found something else interesting,” or did they have to come up with an inauthentic rationale for it?

        • Controls Freak says:

          We don’t have access to either warrant, so we have to speculate. There is some variation on the methods officers use for searching, but in general, metadata is not protected by a warrant requirement. One example is a search along the lines of what you would do just poking around a computer looking for your boyfriend’s porn. Open some folders; look for key words that might tip you off. Looking at the names of files doesn’t require an additional warrant. If you see “Credit Card – September.pdf”, you skip over it; if you see “Known Pornstar.mov”, you can be reasonably certain it’s relevant to your search (obviously, this is not an actual search that law enforcement could engage in, because regular porn isn’t a crime).

          You could be using automated software that processes the data and gives you summary statistics. A list of the most common email recipients likely counts as metadata and wouldn’t be subject to a requirement for a new warrant. If you see “Alex Rodriguez” and “Anthony Bosch” in the list, you can maybe go get another warrant.

          The technical term is “plain-view exemption”. Basically, so long as you’re doing things that are reasonably within the bounds of the legitimate warrant authority you have, you’re allowed to use the information you see. You can’t make different actions (ones that aren’t supportable by the warrant you have)… such as opening Mr. Rodriguez’s email. You have to go get another warrant for that. Your idea of, “Well, doing this unrelated search, we found something else interesting,” is about right.

          It’s the same idea that governs situations where if you enter a house during the regular course of handling a domestic dispute, you don’t have to just ignore the bag of cocaine sitting on the coffee table. Seeing it almost certainly gives you probable cause to call a judge and get a warrant to search the rest of the house for additional drugs.

          Really mechanical rules in this domain aren’t super clear to me, either. I linked the two cases that seem really important. US v. Casey is cited by pretty much everyone, because it’s an important milestone of evidence being suppressed due to LE not getting a new warrant for different content. I also linked US v. Campos, which cited a law review article which summarized this process. I’d have to do more case review to answer this question with any more detail.

    • Controls Freak says:

      II. Cybersecurity Information Sharing Act (CISA)

      This was enacted as part of the 2016 Omnibus Appropriations Act (text here) and has just been run through the mud. The fact that it was inserted into the Omnibus relatively late doesn’t mean that it was created then or that lawmakers were unable to figure out what it contained. Pretty much the entire text was already well-circulated, there were only a few issues to hammer out, and it’s quite easy to have a staffer read that portion of the law and report back, “These are the few meaningful differences from the previous draft you’ve seen.” Anyway.

      1. This was about voluntary sharing, not “government surveillance”.

      Let’s get this out of the way: There is not a single power given to any government agency to demand any surveillance or any data anywhere in this law. It’s about things that companies want to share… things that make them say, “Oh wow. The government really ought to know this.”

      2. They’re only allowed to share specific information for cybersecurity purposes.

      The bill specifically targets information that is useful for countering cybersecurity threats. It does not let Google say, “We scanned everyone’s email, and determined that these people are likely selling drugs.” This is defined in Section 102(4-7).

      3. They must scrub the data of personal information.

      The company is required to do this in Section 104(d)(2), and a federal entity which wants to share it with other portions of the government is required to do the same in Section 103(b)(1)(E). Some people make hay of the “actual knowledge” requirement, imagining that companies can just claim zero knowledge, but Section 105(a)(4) specifies that DHS is to provide guidelines for scrubbing data of personal information. Companies can be safely assumed to have knowledge of this.

      4. Even if something gets through that could conceivably be used to go after a person for selling drugs or whatever, the law specifically prohibits it being used for that purpose.

      This is Section 105(d)(5). It outlines the specific things that the government can do with the information after it’s gone through this process. “Prosecuting a drug dealer” is not in that list.

      This section turned out to be shorter than I expected. The bill isn’t that long, and it didn’t take long to just walk through it. It’s a shame that such a cursory read of the text runs contrary to so much of what the tech outlets said about it.

      III. Encryption

      I like encryption. I use encryption on a daily basis. I’ve written my own encryption algorithms. Nevertheless, I think the things the government has tried to do on encryption are in the category of Not Insane.

      III(a) FBI v. Apple

      Everyone knows the basic facts. A dead terrorist (no question he was a terrorist) left an encrypted iPhone behind (being dead, he has no privacy interest). The owner of the phone (the county) consented to searching the phone. There is no question that the FBI can search this phone. However, since it’s encrypted, they can’t get in (See Section II(c)(3) for a response to, “But they could have forced an iCloud backup”). The FBI wants Apple to help them get in.

      1. Everyone equivocates on the words “create” and “backdoor”.

      Suppose the NSA was proposing a new encryption standard. Someone pointed out a possible method by which NSA could exploit having a special number to get into that encryption (ring any bells?). The NSA said, “Don’t worry about it. That’s not a ‘backdoor’. We’d have to spend a month ‘creating’ code to exploit it, and that’s never been done before, so it’s not a ‘backdoor’.” You wouldn’t buy that, would you? Wouldn’t you say, “The backdoor already exists!”?

      If you replace “NSA” with “Apple” in the above paragraph, this is a precise description of the situation Apple was in. They had a special number (their digital signature for signing firmware updates) and said they would need about a month to write, test, and implement code that gets into the encryption on the iPhone in question. To the extent that this route into the phone can be called a “backdoor”, the backdoor literally already exists. It has already been “created”, it just hasn’t been exploited.

      2. There is absolutely no way that complying with a retrospective court order could result in a prospective backdoor in any new device

      This probably belongs in the I Wish I Had To Construct A Strawman For This Department, but the court order was very specific about three particular things that Apple was to do. None of them was, “Intentionally put a new backdoor in your new devices.” From basic legal principles, it’s absolutely incomprehensible to imagine that they could possibly do such a thing in order to execute a search warrant on a device that already exists. There is just no way that this could possibly affect other devices. I really shouldn’t have to say anything more.

      • Fossegrimen says:

        What I never understood about the whole Apple stance is why they didn’t say something on the lines of:

        Look, the FBI has forced us to hack old phones, but we have a fix in the new phones that is so safe that even we are not able to do it. You should all throw away your old phones and buy new ones.

        • Controls Freak says:

          Well, they did make the latter claim (“Throw away your old phones and buy new ones, so that we can’t hack them.”), but the earlier claim was still in contention. This is part of why I didn’t buy their claim, “If we are forced to comply, it will hurt our sales.” (They used this to support the legal claim that complying would be overly burdensome.) I could come up with an equally plausible hypothetical where their sales increase (exactly on these lines), and there’s very little reason for us to make legal determinations based on either prognostication of the future.

          • Doctor Mist says:

            This is part of why I didn’t buy their claim, “If we are forced to comply, it will hurt our sales.”

            Gee, that seems pretty obvious. Say I’m thinking about buying a phone, and I’m worried about whether the government can see what’s on it. If Apple says, “We believe this phone is unhackable, but if we’re wrong we will do our best to protect you”, that’s worth a fair bit more to me than “We believe this phone is unhackable, but if we’re wrong we’ll roll over on you in a heartbeat.”

            I mean, it wouldn’t matter much to me because I am pure as the driven snow. But at the margin you gotta believe there are people who would care, even if it’s just to the extent that the latter leaves a bad taste in their mouths.

            There are probably other people who would feel similarly sour about the fact that Apple didn’t do their best to help fight terrorism. How many of each? I don’t know, but I’ll bet somebody at Apple thought pretty hard about it.

          • Controls Freak says:

            That’s possible. If there is one fact I cannot dispute, it’s that I’m probably no better than anyone else at guessing market movements. I was personally seeing a lot of goodwill toward Apple coming out of the whole episode. Friends on facebook who had never shown any interest in tech issues were saying, “I’m not usually a fan of Apple, but….” It was my personal impression that they were going to gain a lot, regardless of how it turned out.

            I think Apple’s marketing division definitely worked overtime on their public statements – they definitely beat the FBI in the PR war. But yea, I probably have no better an estimate of the difference between, “We put up a public fight and lost,” versus the various other options. The option that happened might be worse than losing the case – now the FBI can get into the phone, and Apple can’t do anything about it (and maybe don’t even know enough about the vulnerability to patch it).

            There are just so many possible scenarios, the only thing I’m sure of is that I don’t want the legal analysis depending upon such prognostications.

        • AnonEEmous says:

          actually, telling you to get entirely new, more expensive apple merchandise is right up apple’s alley

          next they’ll be telling us that wired headphones were hacked by the FBI and we need wireless headphones for precisely that reason

      • Brad says:

        I like encryption. I use encryption on a daily basis. I’ve written my own encryption algorithms.

        By written, do you mean implemented or designed?

        • Controls Freak says:

          Thanks for pointing out an imprecision in my language. I have a pretty high barrier for what I would consider “designing” an algorithm; I would probably require making a theoretical contribution to the literature. I haven’t done that. I have implemented multiple algorithms of various quality. I’m familiar with much of the math and wouldn’t be totally lost trying to engage with most theory papers, but I haven’t made any contributions (my area is dynamics and control theory; I have contributed theory there).

          Honestly, that bit came from a long history of trying to head off claims that, “Everyone who disagrees with me on encryption law must be ignorant of how encryption works.” I will strongly stand by a claim that I have a solid understanding of how major encryption algorithms work. I don’t want to imply more.

          • Iain says:

            Oh good. Ironically, “I’ve written my own encryption algorithms” is (in the absence of your caveats) one of the best ways of identifying people who don’t know crypto as well as they claim.

            Rolling your own crypto for dummies:
            Step 1: Do not roll your own crypto if it will be used anywhere even close to production.
            Step 2: If you are at all unsure whether Step 1 applies to you, then it applies to you.

          • Brad says:

            I have a similar understanding of the word designing, so if you had picked that it would have meant I’d have to decide if you were a genuine expert or a crank.

            That said, a hardened, optimized, for production use implementation is no small feat either. If you have contributed code to one or more of those, that’s bona fides enough. I myself have only done toy implementations for learning purposes and in production code pull in a library.

            My main point was something like Iain’s. After getting involved in a discussion here a few month’s back where someone trotted out the “a little knowledge is a dangerous thing” talking points about one time pads, I’ve learned to be cautious.

      • John Schilling says:

        III(a) FBI v. Apple

        Everyone knows the basic facts. A dead terrorist (no question he was a terrorist) left an encrypted iPhone behind (being dead, he has no privacy interest). The owner of the phone (the county) consented to searching the phone. There is no question that the FBI can search this phone. However, since it’s encrypted, they can’t get in (See Section II(c)(3) for a response to, “But they could have forced an iCloud backup”). The FBI wants Apple to help them get in.

        I’m going to push back on this one because, well, they actually did get in. Without Apple’s help.

        It was obvious to me at the time that if they had possession of the device and didn’t mind breaking the device, they could almost certainly get in. And it was just as clear to the various security professionals I followed publicly or talked to privately at the time. There would have been some risk of losing the data, but a small one – especially compared to the possibility of losing the value of the data when e.g. Farook’s imagined ISIS handler sees on TV that his texts and emails are going to be cracked next week and rabbits.

        So I never really bought the “Only Apple can help us stop these Nefarious Terrorists” story. There were three stories that made sense.

        A – The FBI is simply incompetent and their labs can’t do what small private outfits can. This, sadly, is the optimistic scenario, and it’s not justification for demanding that anyone else do the FBI’s work for them.

        B – The FBI is arrogant; they went to Apple because it was easier and once Apple said no, “we must find and thwart the terrorists” gave way to “Apple must RESPECT OUR AUTHORITAH!!!”. I’ve seen that one before, and it doesn’t end well.

        C – The FBI never cared about finding Syed Farook’s imaginary ISIS handler or any other such thing; they wanted a precedent to use in future cases and tried to use this as a black-and-white good-vs-Ultimate-Scary-Evil test case to set that precedent.

        And sure enough, they didn’t stop at just one.

        Everyone equivocates on the words “create” and “backdoor”…There is absolutely no way that complying with a retrospective court order could result in a prospective backdoor in any new device

        So let’s drop the contentious word, “backdoor”, and look at what the FBI wants. They had the means (once they found someone to explain it to them) to extract the contents of any iPhone in their possession, probably in no more than a day or two once they get the hang of it, but probably at the expense of obviously damaging or destroying the phone. That’s sufficient for most any legitimate search.

        They demand instead, a way to invisibly extract the contents of any iPhone in their possession through the data port, probably in a few minutes when they get the hang of it. And once they’ve annoyed the FBI with ninety or nine hundred court orders saying “…now crack this iPhone too”, and one last one saying “…oops, this iPhone has classified nuclear weapons designs on it, we can’t let you have it, you have to give us your tool”, they’ll have that capability in-house and deployed as widely as they see fit. If they want every FBI office to have a bunch of USB sticks that automatically hoover the contents of any iPhone they are plugged into, that’s just a repackaging of the code they demanded of Apple.

        That’s sufficient for most any legitimate search, but it’s vitally necessary for the other sort. So, yeah, I’m kind of hoping this was just FBI incompetence, but that doesn’t give me a warm fuzzy either way.

        • Controls Freak says:

          I can’t rule out the possibility that they had a method to get in, but I’m not high on it for the following reasons. The first is just my personal interaction with friends who argue in federal courts on behalf of federal entities. The fear of being seen as misrepresenting facts is real. They have to go to these guys on a regular basis in order to do their jobs; they do not want a judge thinking that they’re lying.

          The second is that if they were to take such a brazenly false position in court, it would have to be approved at high levels in FBI/DOJ. I know that this is not completely unprecedented, and while Comey is not well-favored at the moment, I just don’t get the sense that he’s likely to roll like that.

          So, I think the most likely scenarios are either that FBI tech labs are incompetent or that the popular ideas for getting into the phone either just don’t work or present enough risk of destroying the data that they were highly disfavored. I’m really not sure how to allocate probabilities among these three options.

          one last one saying “…oops, this iPhone has classified nuclear weapons designs on it, we can’t let you have it, you have to give us your tool”, they’ll have that capability in-house and deployed as widely as they see fit

          I don’t think this is as plausible. I think a very important portion of their undue burden analysis was the fact that the FBI never acquired the tool. I genuinely think the case can go the other way if this changes. It’s a really really big deal, and it’s just as important of an issue when we talk about more general encryption law. The government knows how to work with corporations to get security clearances for employees that provide sensitive technical services. I have no doubt they could do that here, as well.

          EDIT: I should mention that if the FBI lied, it’s not ridiculous for Apple to call them out on it. Apple definitely doesn’t want to file a public brief saying, “Lolz just reflash NAND and you can get in,” but if Apple has a bona fide reason to say, “This is a trade secret and it would be damaging if it got out, but the FBI clearly knows it can get into the phone using method X,” they can probably get that statement sealed.

          • Douglas Knight says:

            The method everyone suggested works. According to this Comey publicly and specifically addressed this technique, that he claimed both that it didn’t work and that it was not the method that they finally used.

          • John Schilling says:

            I don’t think this is as plausible. I think a very important portion of their undue burden analysis was the fact that the FBI never acquired the tool. I genuinely think the case can go the other way if this changes. It’s a really really big deal, and it’s just as important of an issue when we talk about more general encryption law. The government knows how to work with corporations to get security clearances for employees that provide sensitive technical services. I have no doubt they could do that here, as well.

            I have no doubt that they could do that. I also have no doubt that they could arrange not to do that. It takes the better part of a year to get someone a TS/SCI by the book, if the FBI cooperates. Oops, we think this iPhone was used to send a complete technical readout on our most advanced battle station to some Bothan spies, and we need to crack it today. By the book, no shortcuts, that’s how we got into this mess.

            The FBI can control whether the hack can be used at Apple or has to be used in an FBI lab. The FBI can control whether it “needs” to be used just the one time, or nine times or ninety or nine hundred. And once it’s in an FBI lab, the FBI can control where it goes from there.

            Once there exists a quick, undetectable software tool for cracking iPhones, there exists a path from Apple’s in-house labs to every FBI field office in the country or beyond, with each step in isolation posing no undue burden and with each step in isolation being Vital to National Security if the FBI says the right things in court (or just doesn’t tell anyone).

            So either we don’t let the FBI build (er, make someone else build) such a tool in the first place, or we trust that they will be honest with us about what they need it for and what they are doing with it. Since they haven’t shown a need for such a tool and since they have said a bunch of stuff that’s not true in their pursuit of such a tool, I am quite pleased with the outcome where Apple tells them to go stuff themselves and the FBI probably has to settle for a more cumbersome technique that requires visibly and irreversibly tampering with the phones they crack.

          • Controls Freak says:

            @DK

            Ugh. TechDirt. I get annoyed by their constant lying and hyperbole almost as much as the fact that their sources are always a rabbit hole of other TechDirt links, and it’s impossible to get to an actual source. (I want to quibble with their characterization, but I’ll just leave it.)

            Anyway, like I said, there’s really no way to know yet if their tech department was just incapable of coming up with all the steps necessary, if there is some problem in going from proof of concept to production (the linked paper mentions memory wear and forensics concerns), or if they just lied.

            We have to think about Apple’s posture here, too. If we’re assuming the FBI lied, then we also have to assume that Apple lied. Apple has had no problem assisting with getting into devices before, and while they still have a functional claim that they can’t get into phones with A7 processors, they also claimed that they couldn’t get into this one. I would prefer to think that everyone was telling the truth and that there’s some issue with going to production-scale, but it’s possible that everyone was just being a bunch of lying liars. I’m not sure which way that’s supposed to taint any of the legal questions that were presented in that particular case, the questions that we’re going to encounter in future cases, or the questions concerning potential encryption laws.

            The final thing to note is that it’s really really strange to see people saying, “It’s going to cause the apocalypse if the FBI is given a way into that phone; could you imagine if other people steal that method from them?!” and then following it up with, “Hey everyone! Here’s a method that anyone can use to get into the phone! This totally validates my position!”

            @John

            Burden analysis focuses on the party being compelled to comply, not the government’s interest. The only thing I see coming out of additional elements driving toward foreign intelligence purposes is that it is more likely that NSA could bring their legal authorities to bear. And honestly, I would be quite surprised if a company like Apple doesn’t already have a sufficient number of cleared employees.

          • John Schilling says:

            Burden analysis focuses on the party being compelled to comply, not the government’s interest.

            Right. And once Apple has built the FBI’s desired tool, which is just software, there is zero burden to their being compelled to deliver a copy to the FBI when the FBI finds an excuse to say “It’s really important and we promise not to misuse it”. What’s the legal argument, under the undue-burden standard, for denying the request?

            The FBI has lost my trust on this matter. If the tool exists, I presume that they will claim it for themselves and they will misuse it. I’d much rather it be the courts rather than the Apple board of directors that stops them, but I’ll take what I can get.

          • Controls Freak says:

            once Apple has built the FBI’s desired tool, which is just software, there is zero burden to their being compelled to deliver a copy to the FBI

            I disagree completely. The loss of trade secrets, the increased potential for vulnerability, and damage due to possible extralegal abuse are vastly more compelling in that hypothetical than in the few-months-programming-project case that was the original case.

            If the tool exists, I presume that they will claim it for themselves and they will misuse it. I’d much rather it be the courts rather than the Apple board of directors that stops them

            I expect that the courts would. Especially considering that I really would bet Apple already has cleared personnel. I just can’t imagine the argument going through.

            Note that if we assume this argument could go through, then we probably assume that they could just demand Apple’s source code/digital signature under a similar scenario. “We have a super secret nuclear bad guys The Cyber situation, and we need to create a particular tool. You can’t even know what it does. Gimme gimme.”

            Like I said before, adding these factors might bring in NSA authorities (whether overt or covert; honestly, it’s not insane to think there might be legitimate authority for NSA to target acquiring Apple’s source… I’d have to think about various constraints), but I just don’t see how they can come into play for a writ to execute a search warrant.

    • Controls Freak says:

      3. Apple failed miserably in claiming that complying with the order would be dangerous toward anyone else.

      With the above in mind, Apple tried to do something that I honestly find rather incomprehensible. They tried claiming that performing a few-weeks-long programming project was the difference between peace/safety and the apocalypse. The FBI rightly called them out on this.

      contrary to Apple’s stated fears, there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession. Nothing in the Order requires Apple to provide that code to the government or to explain to the government how it works. And Apple has shown it is amply capable of protecting code that could compromise its security. For example, Apple currently protects (1) the source code to iOS and other core Apple software and (2) Apple’s electronic signature, which as described above allows software to be run on Apple hardware. (Hanna Decl. Ex. DD at 62-64 (code and signature are “the most confidential trade secrets [Apple] has”).) Those — which the government has not requested — are the keys to the kingdom. If Apple can guard them, it can guard this.

      As stated in (1), all the necessary elements for exploiting the backdoor were in Apple’s source code and electronic signature. They literally already have those things. They already protect them. The difference between criminals stealing those and criminals stealing the finished code used to comply with the warrant is that the criminals would have to engaged in a little programming project in order to use it. In fact, it would be much worse if the source code/signature were stolen, because they could create all kinds of other code that does much worse things. I just can’t see how Apple could possibly reply to this. That’s probably why they didn’t. Instead, in their reply brief, they said:

      The government’s assertion that “there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession”, simply shows the government misunderstands the technology and the nature of the cyber-threat landscape. As Apple engineer Erik Neuenschwander states:

      I believe that Apple’s iOS platform is the most-attacked software platform in existence. Each time Apple closes one vulnerability, attackers work to find another. This is a constant and never-ending battle. Mr. Perino’s description of third-party efforts to circumvent Apple’s security demonstrates this point. And the protections that the government now asks Apple to compromise are the most security-critical software component of the iPhone—any vulnerability or back door, whether introduced intentionally or unintentionally, can represent a risk to all users of Apple devices simultaneously.

      The government is also mistaken in claiming that the crippled iOS it wants Apple to build can only be used on one iPhone:

      Mr. Perino’s characterization of Apple’s process . . . is inaccurate. Apple does not create hundreds of millions of operating systems each tailored to an individual device. Each time Apple releases a new operating system, that operating system is the same for every device of a given model. The operating system then gets a personalized signature specific to each device. This personalization occurs as part of the installation process after the iOS is created. Once GovtOS is created, personalizing it to a new device becomes a simple process. If Apple were forced to create GovtOS for installation on the device at issue in this case, it would likely take only minutes for Apple, or a malicious actor with sufficient access, to perform the necessary engineering work to install it on another device of the same model. . . . [T]he initial creation of GovtOS itself creates serious ongoing burdens and risks. This includes the risk that if the ability to install GovtOS got into the wrong hands, it would open a significant new avenue of attack, undermining the security protections that Apple has spent years developing to protect its customers.

      Cybersecurity experts agree. [Experts: The FBI’s iPhone-Unlocking Plan for Apple Is Risky, Chi. Trib. (Feb. 22, 2016)] (“[I]t may simply be impossible to keep the program from falling into the wrong hands.”); (quoting former NSA expert Will Ackerly: “[u]sing the software even once could give authorities or outsiders new clues to how Apple’s security features work, potentially exposing vulnerabilities that could be exploited in the future”); [Rep. Conyers, Encryption Hr’g] (“The technical experts have warned us that it is impossible to intentionally introduce flaws into secure products—often called backdoors—that only law enforcement can exploit to the exclusion of terrorists and cyber criminals.”); [Experts’ amicus brief] at 10 (the government’s proposed safeguards “are not meaningful barriers to misuse and abuse of the forensic capabilities this Court is ordering Apple to create”); (“A signed firmware update that is not truly limited to a single device, even one created for legitimate forensic purposes, becomes like a ‘skeleton key’ for the entire class of devices.”). Moreover, the more often this tool is used, the greater the risk it will be stolen or otherwise disclosed. [Prof. Landau, Written Testimony Encryption Hr’g] (“routinization will make it too easy for a sophisticated enemy”). No All Writs Act authority permits courts to require an innocent private company to create and maintain code whose “public danger is apparent” and whose disclosure would be “catastrophic” to the security and privacy interests of hundreds of millions of users.

      Did you notice what they didn’t do?! They didn’t address the challenge at all! They started off by pointing out that their product has tons of vulnerabilities because of the other features they include (we’ll come back to this in a bit). Then, they tried confusing the source code with the combination of source code and key. Obviously, if an attacker gains the source code and key, they’re done. That has nothing to do with whether a few-weeks-long programming project on the source code makes any difference. Finally, in their only remotely plausible attempt, they made a pass at routinization. However, this doesn’t make sense, because they already routinely use the source code and the digital signature! They’ve simply failed to even acknowledge the core of the FBI’s challenge, and it’s really a shame that so many people fell for their misdirection.

      4. “Compelled speech” is not a get-out-of-jail-free card.

      One circuit court has said that pseudocode for the purposes of expressing mathematical concepts in academic literature was an expressive action worthy of first amendment protection. There has never been a general “code is speech” ruling, and I seriously doubt that we’re going to get one. Even so, government can compel all kinds of speech! The FBI cited CALEA as an example, but an incredibly basic and uncontentious version of compelled speech for the purpose of ensuring an informed judiciary is compelled testimony. There was an example of this recently in the Freddie Gray cases. Officers were compelled to testify in the trials of their fellow officers, even if they didn’t want to. They retained Fifth Amendment protections… but there would be no need for Fifth Amendment protection if there was no ability to compel any speech whatsoever.

      5. I don’t want the NSA involved in domestic law enforcement for the FBI.

      Lawfare has a great series of posts on this, and I have very little to add. I’ll swing back around to the idea that I don’t want the FBI to have to take an NSA-like stance toward Americans, either.

    • Controls Freak says:

      III(a) Burr-Feinstein

      I consider Burr-Feinstein to be the only remotely serious federal proposal for encryption law (possible adjustments can be found here). I’ll start with common misconceptions as to what BF would have actually done, then move to a more general view of the possibilities of encryption law.

      1. Section 2 does not matter.

      This is basic statute-reading, but I think it’s led lots of people astray. Section 2 is the “Sense of Congress”. These sections are not legally enforceable, so you can be immediately confident that anyone who is trying to ground a legally-binding requirement in this section doesn’t know what they’re talking about.

      2. Section 3(a) is what I call the “FBI v. Apple Fix”.

      In FBI v. Apple, there was a legitimate question about whether companies have to comply with court orders for technical assistance in executing search warrants. Remember, these are retrospective orders for individual warrants on existing devices. Courts cannot order you to do impossible things. If you are the creator of PGP, you are a “covered entity” (in the original bill; the update exempts them entirely). If FBI could come up with a concrete method by which you can get into a piece of encrypted data (like they had in FBI v. Apple), then they could compel you to do it. If you don’t have such a method, they can’t compel you to do anything! That’s extremely simple, and I don’t know why it seems to break so many people’s brains. This is absolutely unquestionably true if we consider the “reasonable efforts” phrasing that the adjustment adopted (probably in response to so many people not understanding this).

      There is nothing in Section 3(a) that could require any prospective backdoor in any device. There just is no such requirement in this section. You can’t find it, because it’s not there. If we try to imagine that it’s there by squinting really hard, we’re going to run into a problem as soon as we move to…

      3. Section 3(c) is an attempt to target Apple’s model.

      This section picks out a special group – providers of electronic communication service (ECS) or remote computing service (RCS) to the public. The qualifier “to the public” is important. If you are Google, you provide electronic communication service (Gmail) to the public – any person can sign up for an account. If you run a company-specific Exchange server, you are not providing ECS to the public. This group is a strict subset of “covered entities”. There are tons of “covered entities” that are not captured by Section 3(c).

      Section 3(c) requires this group to be capable of complying. This is the only prospective requirement in the bill, and it does not hit all “covered entities”. As I alluded to in the last section, if we imagine that Section 3(a) has a hidden prospective requirement for all “covered entities” to be capable of complying, then there is absolutely no reason for Section 3(c) to exist! Providers of ECS/RCS to the public are a subset of “covered entities”! If they’re required to be capable of complying by a hidden provision in 3(a), what is 3(c) even doing?! One of the canons of statutory construction is that we disfavor interpretations which make a portion of the text meaningless. At this point, there should be no question that this bill simply wouldn’t do what a lot of people thought it would do. Both the actual text of 3(a) and applying the rules of statutory construction to 3(c) agree.

      Now, they’re not just targeting providers of ECS/RCS. They’re actually targeting the Apple model. Apple individually approves every single app that can go on an iPhone. The bill locks onto them as a distributor of the licenses for these apps. It requires Apple to make sure that these apps are capable of complying.

      4. Burr-Feinstein really targets dumb users of popular products which allow easy encryption.

      Right now, anyone who buys an iPhone can have easy, on-by-default, encrypted data-at-rest. They can immediately download one of the many popular encrypted messaging apps and have easy, on-by-default, encrypted data-in-motion. This bill really just targets these guys. It’s not meant to stop smart users. Like I mentioned above, even if this bill were adopted as law, there would be nothing stopping me from just using PGP for all of my communications.

      On this note, I think the stakes of encryption law are less than you think. It will preserve legal access to these systems for a while, but it is almost certain that easy-to-use encryption will come around which can’t be hit by a law like this. If those dumb users adopt this alternative, a decade from now, rather than saying, “Whelp, we passed an encryption law, so the apocalypse came,” we’ll say, “Heh. Remember that time when we slightly extended the lifetime of law enforcement access to some communications of dumb criminals?”

      III(c). Risk analysis, legal access, and lawful hacking

      1. There is no such thing a perfect security. The question is always whether your security is good enough and how this trades off with functionality.

      You’re opening a new bank, constructing a new building and everything. Being a bank, you think, “We should probably build a vault.” You go to your local security expert who argues about encryption online and commission him to design you a vault. He goes away and works for a while, eventually coming back to display the fruits of his labor. You have a look. “Uh, sir? I haven’t built many vaults, so I have a stupid question. Where’s the door?” “ARE YOU CRAZY!? YOU CAN’T BUILD A DOOR! IF YOU BUILD A DOOR, THEN SOME PEOPLE MIGHT FIND A WAY TO EXPLOIT THAT DOOR!” “I see. Uh, sir, one more question. What if we want to, ya know, go into the vault… perhaps to place valuables inside or to retrieve what we had previously placed there?” “IF YOU CAN GET IT, ANYONE CAN GET IN!”

      2. The latent risk environment matters.

      Scenario A: The government wants to build a backdoor on your house. The design is a doggy-door, but large enough for a human. This is obviously completely insecure and utterly unacceptable.

      Scenario B: The government wants to build a backdoor on your house. The design is a bank vault door; the only code to open it is kept in the nuclear football; the door is also protected 24/7 by two armed guards. Sure, there’s a theoretical security vulnerability: someone could just steal the nuclear football, incapacitate the guards, and proceed to enter your house. From a practical standpoint, any would-be nefarious actors are going to throw a brick through your front window, instead.

      The former scenario introduces much greater risk than the latent risk environment, while the latter introduces much less. Note that this consideration is orthogonal to whether you trust the President to have access to the code in the nuclear football. (See here for an example that makes it look more like the nuclear football than a doggy door.)

      Taken together, these two principles undercut a lot of complaints. In Apple’s brief in FBI v. Apple, they claimed that their latent risk environment is high. This actually makes their position worse. Why would anyone go to all the effort to steal Apple’s well-defended possessions when they could just exploit all the other hundreds of vulnerabilities out there? Taken to the extreme, some people will fall back on, “If you include this feature that the government wants, it will increase the surface area of the code, increasing vulnerability.” This is the most theoretical of theoretical risks. I agree that it’s a theoretical concern, but there’s absolutely no reason we couldn’t say, “If you include this feature that the customers want, it will increase the surface area of the code, increasing vulnerability.” This is why they have a high latent risk environment to start with! They keep adding features and creating them!

    • Controls Freak says:

      3 . Since encryption doesn’t provide perfect security, the legal question is important.

      There’s a popular argument that we can just ignore the legal question and let the technical questions rule. In particular, the thought is that encryption produces a perfect digital lockbox, so if we just don’t do anything in the legal realm, law enforcement will be shut out and the matter will be closed (coincidentally, in the direction they wanted in the first place). However, I don’t think this goes exactly that way.

      The mathematics of encryption are sound – if you attempt to access the encryption method through the standard authentication method (plus a set of other assumptions), then it will take centuries to get in. However, a lot is buried in that ‘if’. Many attacks on encryption are focused on implementation issues that are not as perfect as mathematics. Neither criminals nor law enforcement are going to just quit their jobs, and both will be incentivized (can I use ‘incented’? I kinda like it) to come up with attacks on popular implementations of encryption. In fact, that was the result of FBI v. Apple – law enforcement went and found another way in (presumably one that attacks the implementation rather than the encryption, itself).

      If we ignore the legal question, we invariably create an arms race between defensive-minded product developers and criminals/LE. Worse, we’re choosing to put law enforcement in the same bind the NSA is stuck in – how do you balance between offense/defense? There are different reasons why we’re likely stuck leaving NSA in this bind (see the SIGINT post), but we have some choice for law enforcement. We don’t have unlimited choice, because of Section III(b)(4). The FBI will never be entirely released from the bind. They will always be incented to find attacks on implementations which don’t have built-in legal access. They’ll be incented to hoard them, because if they get out, criminals can exploit them or developers can shut them out. This is not a recipe for secure systems, happy law enforcement, happy companies, or happy consumers.

      4. The price of legal access is more secure systems.

      This will likely be my most contentious claim, as it is counter-intuitive to everything the pro-privacy crowd wants to believe. To them, the government is the bad people, and any access they have is unacceptable. This is their terminal goal. However, as I pointed out above, the result of this terminal goal is that police become aligned with criminals in trying to defeat encryption systems and hoarding those vulnerabilities. Instead, if we embrace legal access, their incentives (for major systems) are flipped. Now, they’ll have two different rules of action.

      Suppose the FBI discovers a vulnerability in System X. If they have legal access to System X, they have no incentive to hide/hoard it. Instead, they’re incented to go to the developer and have it fixed. If they don’t have legal access, they’re incented to hide/hoard/exploit it, just like criminals are. The concerns of government abuse of these exploits (outside of the legal process) will persist. We will, for the rest of time, have these clashes for systems with no legal access. Customers will have no choice in which model to prefer.

      If we implement legal access, consumers will then have a choice. They can choose to use a mass system, where legal access is governed by a known legal process, with an additional check of a large company ensuring the validity of the warrant… or they can choose to trust a fringe system, where law enforcement is trying to get in just as hard as criminals (and all the risks of law enforcement abuse are preserved). Frankly speaking, with the exception of a small anti-government wing of the pro-privacy crowd and careful criminals, I would predict that the vast majority of consumers are going to choose the mass system with legal access – and this choice will happen to result in them choosing the more secure system.

      Regardless of whether you actually believe this line of argument that legal access results in more secure systems, this leads to the biggest reason why I’m not terribly concerned about a potential encryption law.

      5. Even with a hypothetical encryption law, you’ll have choices of who to trust with your security.

      There is no serious proposal to implement a broad ban on encryption products. None of the bills proposed will outlaw PGP. If you trust the legal regime, Apple’s legal department checking their work, and Apple’s technical department, you’ll just use Apple’s product. If you prefer to trust the writers of PGP, you’ll use their product. If you trust your own tradecraft above all, you’ll write your own encryption. You’ll still have the ability to choose.

      If you only take one thing away from this preponderance of words, it’s that there is no need to be apocalyptic. The stakes just really aren’t as high as many people have been led to believe.

      IV. Parting shot

      I was planning on writing an entire section on National Security Letters and Lavabit, but this is already way too long. I’ll just briefly note that most people have NSLs entirely wrong. There are specific statutes which authorize NSLs to get specific information – and they’re expressly limited to no more information than you could get with a grand jury subpoena (not a warrant). In particular, they can only get non-content information.

      In that light, I’ll quickly note that the common claim, “The FBI demanded LavaBit’s encryption key through just an NSL,” is obviously false on its face. This story has gotten mangled beyond belief. If you have an hour or so, read through the now-public primary documents on the events in question, because they paint a vastly different picture than most people imagine. If anyone really wants me to elaborate further, feel free to ask. I’m tired of typing right now.

    • tgb says:

      Thanks for the detailed post. It was a great read!

      • Controls Freak says:

        I’m just glad somebody read it all. After pasting it into chunks that fit the max comment length and seeing how many comments it required, I was really worried that no one would get through the whole thing.

        • Anonymousse says:

          I fell off the wagon as I was trying to read it in small moments of free time and was struggling to pick up my place again…any chance you have it posted in a single page format?

          • Controls Freak says:

            Unfortunately, I don’t. I intended this to be part, “Let’s see if there are any new and interesting counterarguments from the SSC community,” and part, “I’d like to collect a bunch of my various reddit comments into one relatively coherent argument (and have the whole chunk in one place so I can remember it).” I don’t have a personal online forum.

          • sflicht says:

            @Freak, which subreddits have good discussions about these sorts of issues, open to viewpoints from both your perspective as well as EFF types? A lot of government-skeptical forums (e.g. /r/Anarcho_Capitalism/) would not, I think, be particularly receptive to your arguments, even your good ones. And one of my frustrations with what I think of as the “Lawfare scene” is that they don’t provide forums for casual feedback / discussion. I think Lawfare used to have facebook comments enabled, but not anymore. Occasionally their writers will engage feedback on Twitter, but that medium has many flaws.

          • Controls Freak says:

            The only subs I really participate in for these issues are r/technology and r/law. r/tech is really bad, but I think they’re getting better. There are three users who used to always post the TechDirt Lie of the Day article, and I’ve called these articles out consistently enough that I think those particular individuals have been dissuaded a bit. They still get the weekly Vice FOIA Comes Up Empty article. Nevertheless, anyone who takes a position there that is in any way not in line with EFF is just fishing for downvotes (and I do). It does help me refine my arguments, though. r/law is much more level-headed, but they don’t have nearly the same rate of posts, because they’re less taken in by the outrage-mongering. There are smart perspectives on many sides there.

            Strangely enough, I’ve had some good experiences in AMA. Of course, the rate is low there, but when they have people focused on these issues, I find that the community generally responds to sharp questions (especially when they seem difficult for the position the individual is taking).

            Another venue where I sometimes comment (less so since their switch to WaPo… a long time ago, now) is Volokh. These issues usually only show up when Orin Kerr says extremely smart things about them.

            This relative lack of good venues for continued discussion is part of why I really wanted to bring this to SSC. The commentariat here is very smart, so in addition to just getting feedback to my personal claims, I was hoping to get a sense of whether people were interested in future discussions. I’m not going to bring up every piece of news that I want to talk about, but perhaps even signalling to others that this domain is open will spark comments.

    • keranih says:

      1/5 Stars – product was advertised as boring and sleep inducing, but when I opened it at 2 am, it was anything but. Turned out to be pretty good, but not what the writer said it would be. Would not read at 2 am in the hopes of quickly falling asleep again.

  17. keranih says:

    So, for reasons that don’t bear going into at the mo, I am reading a lot of Judge Dredd these days.

    First a geeky thing/things – the Shankar/Urban movie seems to cleave very close to the main theme of the comics, I really enjoyed that movie, and am very disappointed that it didn’t do well. (Even not knowing the source material at the time, I liked the Shankar version much better than the Syl Stallone version.)

    I am really enjoying the comics, and am impressed by the length of the run and the willingness of the writers to fight with difficult questions.

    Related – I know fangirls gotta fangirl, but I wish more of the fanfic out there was about Dredd, or Judges, and less about Dredd/Anderson pairing (or, god help us, pairing Dredd and Jim Kirk.) (Yes, I know why Kirk/Dredd. Just, no.) Which is on the same spectrum as pretending GRRM is my bitch to write ASoFaI novels to deadline, so I know it’s wrong, but I’ll just be over here in my corner sulking.

    And secondly, a not-so-geeky thing…

    In the “omg this is THE best Dredd story collection EVA” three-story collection America, a main character has been arrested during a “peaceful” protest that turned violent because of false-flag operations by government agents who had infiltrated the protest group and started actions which justified reaction by the Judges (aka the cops.)

    Bad behavior by protesters here in the real world has been a fairly common theme, and and the Ferguson image of people lighting Moltav cocktails was fairly disturbing. I am by inclination not eager to give much credence to claims that “oh, I was just peacefully protesting and some lying undercover cops started throwing rocks, I would never do that sort of thing”. So I am asking those who would by nature have more sympathy to these claims –

    – how often is it “cops” or “corp-rat infiltrators” who start the mess, vs more radical protesters and/or random thugs looking for a chance to settle other disagreements and…

    – is there any way to actually measure these rates?

    – anyone know enough about protests in places that aren’t the USA to talk about rate variation across nations/cultures?

    • dwietzsche says:

      I have a friend who was heavily involved in Occupy here in Denver when it was happening (who I consider reliable, although obviously you have no reason to trust my judgment on the matter), and he told me a story about a guy who showed up to one of the protests and appeared for all intents and purposes to be deliberately attempting to incite it. The incitement attempt failed and the guy left. My friend was suspicious and followed him down the street a few blocks, to see him get picked up in a police car. The issue of fake protesters trying to alter protest dynamics was a matter of sufficient concern that Occupy people had a whole folklore about it, a set of rules for trying to prevent cooption by such people. I do not know how much of that emerged from legitimate experience, and how much from pure paranoia.

      I don’t know how common all this is, but we have run into a political problem where people are taking politics to some weird places. We know there have been fabrications involving claims of violence post-Trump on the left. I’d bet at least half of the Nazi swastikas are fake. I’m not a Trump supporter, by the way, but noticing and being genuinely disturbed by the hysteria on the left is one of the reasons I ended up here in the first place.

      We have a general political problem where the only people playing it straight these days look like suckers. And by playing it straight, I just mean, saying openly what they want and how they want it. That’s basically how democratic politics is supposed to work. But what happens if you’re a former Republican who became a Democrat because you weren’t exactly into white nationalism, and you’re arguing with a Bernie supporter about who the next nominee should be? Do you say you think the Democratic Party should be a fiscally conservative moderate party and that you don’t agree that their desire for a substantial increase in the welfare state would be good for the country? Or do you try to convince this other person that you really care about economic issues, but that Hillary (who you recognize as an ideological fellow traveller whether it’s true or not) is simply more likely to get those sorts of things done than Bernie?

      Anyone can misrepresent their views in the pursuit of some rhetorical goal, but I feel like this just wasn’t that much of an issue eight years ago. People just said what they wanted and the chips fell where they fell. Now everyone’s gotten way more fucking politically sophisticated. It’s not doing us any good.

      • Fossegrimen says:

        I agree with your basic thesis, but I honestly think that the situation you think existed eight years ago actually died with Kennedy, if not before.

        • dwietzsche says:

          It’s possible. I base my observations on a specific set of interactions I’ve personally had over the course of the time I’ve been politically engaged. I’ve been laser focused on what people are saying in political forums only for the last couple of years, mainly trying to fully comprehend the yawning chasm between how discourse works in textbook theories of liberal democracy, and how they actually work in the real world. Definitely not enough experience there to make sweeping historical declarations one way or the other.

          Still, the hyperpartisanship is new in recent history, as are the mechanisms for communicating. I don’t know how useful comparisons to the past are here. It’s often a comfort to find commonalities since it implies that this situation is normal. But one sometimes seeks that sense of continuity not out of a concern for whatever the truth might be, but just to reassure one’s self that nothing important has really changed.

      • Squirrel of Doom says:

        > I’d bet at least half of the Nazi swastikas are fake

        Yeah, I suspect those come from a cultural misunderstanding. “The Left”, or at least angry people with poor judgment on that side, think that the right are really secret Nazis and draw swastikas to to make that clear.

        Meanwhile, hardly anyone on the right actually have any Nazi sympathies, which leaves only leftist false flaggers and shitty trolls to draw actual swastikas.

        [Epistemic status: shaky]

        • dwietzsche says:

          There really is a cesspool on the right that believes such things as “There is a global conspiracy to destroy white culture intent on ruining countries like Russia and Iceland because the are ‘still white.'” I assume the population of people who subscribe to such views is much much smaller than, say, the population of people who were sure the next president would be Ron Paul four years ago. I also think they mainly exist in this form because an economic indictment of global elites is not available to people on the right-it’s just marxism, which we all know is bad. So if you’re a fringer who prefers Breitbart to NPR, and have some beef with globalization, the racial narrative is all that is available.

          • Wander says:

            It would help if there weren’t plenty of people in extremely left-wing spaces (I see it mostly on tumblr, but that’s just because I don’t go to any other sites frequented by the far left) who actually do support the destruction of white culture, revel in ethnic replacement, and talk about how good things will be once white people are simply gone. You see a lot of responses to people being upset their culture is being pushed out of relevance that go to the tune of “I’m glad this is happening to you”.

          • dwietzsche says:

            I subscribe to the view that the alt-right largely exists as a countercultural response to the identity politics left, so I don’t disagree with you here.

          • Glen Raphael says:

            @dwietzsche:

            There really is a cesspool on the right that believes such things as “There is a global conspiracy to destroy white culture intent on ruining countries like Russia and Iceland because the are ‘still white.’”

            Okay, but do even THOSE people think a swastika (a) accurately reflects their current views, (b) is likely to draw others to their views?

    • nimim.k.m. says:

      Well, the history books do tell us that the police and security services in general do try infiltrating groups who like to go protesting against government. That is to be expected.

      Recently there was a scandal in Britain when the undercover (male) agent in a very long infiltration operation would get (female) animal rights activist pregnant and then disappear. (He also planted a bomb to get acknowledged by the animal rights group.) This happened in the 1980s. Link to NYTimes. New Yorker. In short, there’s evidence that they do not play nice if they can get away with it.

      Incitement to violence? It’s difficult to tell. I doubt that goes to officially sanctioned history books, even if it happens. Most of the news articles I can find are quite similar, different variations of “MP demands inquiry to undercover cop activities after the latest protests”.

    • pdbarnlsey says:

      Like you, I feel like most accusations of this nature are super convenient for the group making them. Almost every time someone does something horrific in the name of an ideology, some portion of the ideology’s supporters suggest that it was a false-flag operation.

      So that’s my instinctual response. With that said, you would expect this sort of thing to be really hard to catch and even harder to prove, beyond the kind of anecdotal stories dwietzsche tells, below. Here’s one relatively-proven case of non-protest false flag operation conducted by the intelligence services in Australia:

      https://en.wikipedia.org/wiki/Sydney_Hilton_Hotel_bombing

  18. Nevin says:

    I signed up for the social sciences replication prediction market Scott linked to two open threads ago. The Replication Project is trying to replicate 21 studies published in Science and Nature. You can see the studies here. I thought folks here might be interested in my predictions. (I am a philosopher, not a social scientist, but all you needed to sign up was a university E-mail address.)

    I bet that the following hypotheses would not replicate. I have put in [brackets] the current probability of replication according to the prediction market, which has been open for almost two weeks:

    (5) “Job candidates are evaluated as better overall if their cv is evaluated on a heavy clipboard rather than a light clipboard.” [0.27]
    (9) “Priming analytic thinking via images of “The Thinker” increases religious disbelief compared to viewing control images of a visually similar artwork.” [0.25]
    (15) “Hand washing will significantly reduce the need to justify one’s choice by increasing the perceived difference between alternatives. Specifically, the mean difference between the rankings of the chosen and rejected albums before and after making the choice will be greater for the soap examining condition compared to the soap hand washing condition.” [0.30]
    (16) “Repeatedly imagining eating a food subsequently reduces the actual consumption of that food (a comparison of the 30-repetition treatment and the control treatment in experiment 1).” [0.53]
    (19) “Low-wealth subjects, that are given fewer chances to win in repeated “Wheel of Fortune” type word puzzle games, perform worse in a subsequent attention task (Dots-Mixed task) than do high-wealth individuals (a comparison of the mean performance on the Dots-Mixed task between the “poor treatment” and the “rich treatment”).” [0.35] (Note: “low-wealth” should really be in scare quotes here. The hypothesis is just that subjects who are given fewer chances to win will perform worse in the subsequent task.)

    Although in each case my personal probability of replication is lower than the market’s, I basically agree with the order of plausibility, although I would put the clipboard study at the bottom.

    I bet that the following hypotheses would replicate:

    (10) “The likelihood of choosing a charity is higher when potential donors know that the overhead is already paid for, than when the donors pay for overhead themselves (a comparison of the fraction choosing to donate to “charity: water” between the “50% overhead, covered treatment” and the “50% overhead treatment”).” [0.82]
    (13) “Reading literary fiction improves affective Theory of Mind (a comparison of the mean Reading the Mind in the Eyes Test (RMET) score between the literary fiction treatment and the nonfiction treatment in experiment 1).” [0.37]

    I’m not very confident that (13) will replicate, but the market value seemed too low to me.

    There are several other studies that I think will probably replicate, but my own probability for them was not much different than the market’s (usually around .7 or .8), so I didn’t bet on them. The safest bets seemed to be the implausible priming experiments.

    • Deiseach says:

      “Priming analytic thinking via images of “The Thinker” increases religious disbelief compared to viewing control images of a visually similar artwork.”

      What?

      Any link to the original because I genuinely cannot believe somebody decided this was worthwhile. I think you’re probably safe to bet it won’t replicate.

      • Nevin says:

        The original is here. The study is in line with the general (implausible) paradigm that subtle changes to one’s environment can produce large changes in belief and behavior, as well as with the anti-religious bias of the social sciences. I think this study is very probably nonsense.

        I’m even more confident that the clipboard study (job candidates are evaluated as better overall if their cv is evaluated on a heavy clipboard rather than a light clipboard), which follows the same general priming paradigm, is nonsense. The p-value for that result is .049, which strongly suggests publication bias/p-hacking.

    • Nevin says:

      I’ve been interested to see how volatile the market is for some of these studies. The clipboard and Thinker studies, for instance, have ranged from a low of .13/.14 to a high of .69. Although the consensus is definitely against them, there does seem to be some real controversy over the plausibility of these kinds of studies (with the high points looking like they’re mostly attributable to a few True Believers going all in).

  19. Daniel Frank says:

    Does anyone have any data on SSCs growth rate?

    Curious to see what the slope of growth has been like, and how much certain articles (and which) have had the biggest impact on readership.

    • Scott Alexander says:

      Hits/day grew very quickly until January 2015, then essentially stopped and has been stable for the past two years.

      • Evan Þ says:

        How recent data are you taking into consideration there? (I’m especially wondering whether Ann Coulter tweeting your recent article had any significant impact.)

        • Douglas Knight says:

          He’s talking about steady traffic, not viral spikes. The Crying wolf piece is probably 10x as big as his most popular previous piece, but that did not, apparently, contribute to ongoing traffic, so this probably won’t, either. Ann Coulter only has a million followers, so she probably isn’t visible in the traffic logs.

  20. Paul Brinkley says:

    Someone on my FB list shared a link to On The Media’s checklist for spotting fake news. I ended up writing a whole screed on it, and touched on many points about fake news, in a way I thought would be interesting to SSC commenters. I think it also leaves out a lot of important details that SSC commenters would like to explore, and I could learn a fair bit. So I’m reproducing my post below, hopefully with Scott’s and Scott’s comment filter’s approval.

    So here’s a clever idea I had: what happens if I apply On the Media’s Fake News checklist, *to* that checklist?

    The list is halfway down this page:
    http://www.wnyc.org/story/breaking-news-consumers-handbook-pdf/

    1. “Big red flags for fake news: ALL CAPS, or obviously photoshopped pics.” Headline is in all caps, but does not look photoshopped. 1/2 red flags.

    2. “A glut of pop-ups and banner ads? Good sign the story is pure clickbait.” No pop-ups or banner ads.

    3. “Check the domain! Fake sites often add ‘.co’ to trusted brands to steal their luster.” The only site here is onthemedia.org; no stolen luster.

    4. “If you land on an unknown site, check its ‘about’ page. Then, Google it with the word ‘fake’ and see what comes up.” …this is where it gets tricky, because you’ll always get hits, and they won’t specifically say “yes” or “no”; you have to read, and judge for yourself. But even that’s not all; to have a comparable baseline, you have to compare what you see with the searches for sites you know are fake, and sites you know are not. Why is this important? Because it may turn out that a search for “$nonFakeSite fake” may yield comparable results for “$fakeSite fake”. OTM is implying you’ll get noticeably different results. Checking for yourself is relatively inexpensive, though.

    If I search “‘on the media’ fake”, I see a front page with articles that don’t specifically address whether OTM is fake. So I guess that’s a good sign.

    What if I search a known fake? “onion fake” gives me… ads for fake onions. (Not even kidding.) But then I get one to Wikipedia and I can read in the Google intro that The Onion is fake, so okay.

    What if I search on a known non-fake? “cspan fake” (we agree C-SPAN is non-fake as it gets, right?) gives me hits, none of them appearing to tackle the thorny issue of whether C-SPAN has been pulling our leg all this time, so okay.

    5. “If a story offers links, follow them. (Garbage leads to worse garbage.) No links, quotes, or references? Another telltale sign.” … there are no links on this graphic, other than the mention of OTM’s home site. Is citing yourself a telltale sign? HMMMM. …sorry, that was in all caps. Hmmmm…

    Seriously though, this point reveals one weakness, IMO: it’s not really a telltale sign if the information offered is true or at least plausible on its face. It’s less correct to treat a graphic like this as an article about some world event, as it is to treat it more like a how-to article or recipe, and how-tos and recipes are typically link-free.

    6. “Verify an unlikely story by finding a reputable outlet reporting the same thing.” …okay, I’ll say it: this could really hurt you if your prior beliefs about what’s reputable is already broken. I tried to apply this by searching for other articles on how to spot fake news, and while I saw one on FactCheck that I thought was pretty good, I also got a hit on a Quora article that also served up an ad for tips on spotting truth in news from… Dan Rather. (In case you don’t know, Rather made history for running a piece on CBS News about President’s G.W. Bush’s time in the Texas Air National Guard, based on typed memos that were later found to be fake, and earning the label “Rathergate” for the whole thing.) If I think Quora is above board (spoiler: it is at the meta-level, but at the object level, it’s as garbage-in garbage-out as any crowdsourced site, like Reddit or Slashdot), and it agrees with OTM, then I’m falling prey to confirmation bias.

    The FactCheck article didn’t 100% back up all of OTM’s tips, but it repeated some of them, such as reading past the headline. There’s a load of background that comes into play here, which I’ll summarize and say that OTM’s list appears to check out.

    7. “Check the date. Social media often resurrects outdated stories.” This list is as immune to that as most how-tos. Any recipe that made green bean casserole in 1950 will probably still produce green bean casserole today. …Well, except that this list does rely on certain technological devices in common use today. There was no such thing as clickbait in 1950, and it might go away by 2050 for all we know. But that isn’t what this tip is warning about, and this list doesn’t trip the warning, so okay.

    8. “Read past headlines. Often they bear no resemblance to what lies beneath.” This list doesn’t really have a headline other than “BREAKING NEWS CONSUMER’S HANDBOOK”, and this list is obviously intended to be a section of the whole thing, so I’d say it is what it says it is.

    9. “Photos may be misidentified and dated. Use a reverse image search engine like TinEye to see where an image *really* comes from.” I plugged this graphic into Google’s reverse image search, and it came from LiveLeak. Uh oh. (Just kidding. It came from WNYC, OTM’s host.)

    10. “Gut check. If a story makes you angry, it’s probably designed that way.” …This has a similar weakness to #6. What if my anger metric is itself busted? What if I’m bipolar? What if I’m unnaturally well-humoured? Still, these are all heuristics, after all, and FWIW, this list isn’t angering me. On the contrary, I’m actually enjoying it. …Which might mean I’m falling prey to the opposite problem, where we share things that aren’t really that true, but play to our prior beliefs of how the world ought to work. This list doesn’t mention that, and I think it should. So now I’m a little annoyed by that, which means it’s no longer playing to my prior beliefs, while not completely angering me… so this is probably okay.

    (Me? Overthink things? Nooooo.)

    11. “Finally, if you’re not sure it’s true, don’t share it!” …Which brings us to the final score. One point for everything this list does right, not counting this point:

    1/2 + 1 + 1 + 1 + 1 + 1 + 1 + 1 + 1 + 1 = 9.5 out of 10. The only thing OTM messed up was putting its headline in all caps. (Way to go, guys.) So by OTM’s standards, this is probably really good, and postworthy.

    One final note, though, is whether this is postworthy by *anyone’s* standards. If OTM did poorly by its own list, this would be an indication for us to not follow it; but just because it’s consistent doesn’t mean we should use it. There exist consistent systems of axioms and inference rules which are nevertheless not very useful in the real world. Is this list one of those? Or is it objectively useful?

    My answer is that I can’t say for sure. I can say, however, that one way to refute it would be to point out fake articles that follow all of the above points, and non-fake articles that break enough of them that OTM would judge them fake. (OTM doesn’t say how many rules you have to break, so this is a judgement call, and maybe they expect a scalar rather than a binary scale.)

    Also, this isn’t the only source for spotting fake news. As mentioned above, FactCheck has an article. So does HowStuffWorks. I would recommend these, but that’s an argument from authority, so I’ll go out of my way to NOT opine that they’re good, but rather that I think you would want to read them and compare them to OTM’s. Another source I use is a whole book, by Neil Postman, who goes into detail about the economic drives behind news. It focuses on TV news, but many of its points carry into online news as well.

    https://www.goodreads.com/book/show/96446.How_to_Watch_TV_News

  21. onyomi says:

    I largely agree with the “wolf” post: by crying wolf in the presence of a sheep (Mitt Romney), the left lost credibility in the presence of a fox (Trump–I don’t think he’s personally racist or homophobic, though he may be somewhat sexist in a way most 70-year old male billionaires probably are, and he may be somewhat vulnerable to hijacking by racist or, more likely, xenophobic elements), and will seemingly have no ammo left should a real wolf (someone like David Duke) ever be in a position to assume real power.

    That said, I’d like to steelman, if not exactly defend, for a moment, why I can at least understand why people overreact this way, even if I don’t think it’s a good idea:

    It seems like politics, like the stock market, functions prospectively. If you hear news that seems likely to hurt a company’s earnings potential next year, you sell the stock NOW. And so does everyone else. Very rapidly, the news is “baked in.”

    Similarly, in politics, where gradualism and duplicity are endemic strategies, everyone is always looking at the top of a mountain or the bottom of a slippery slope. This explains things on both sides: will Obama transform the nation into a globalist, socialist, secular society in the space of 4 or 8 years? No. But we might guess, based on his statements and those of people he hangs out with, that that’s kind of the direction he wants to push things in. So people freak out and call Obama a global, secular, socialist right NOW. Because that’s what they believe he REALLY wants–he’s just biding his time.

    With Trump, I don’t think (hardly) anyone believes that, within four years, we’ll be rounding up gays for reeducation camp and deporting everyone who’s not a white Christian.* But the question is, will 4 or 8 years of a Trump presidency make such a future more or less likely? What do Trump and his supporters REALLY want? Is David Duke’s chance of being president sometime in the future increased or diminished by a Trump presidency? I don’t really think he has a chance, regardless, but it’s not inconceivable to me that Trump presidency universe has a slightly higher probability of becoming Duke presidency universe than Hillary presidency universe.

    And so people freak out NOW. You don’t wait until a white nationalist is president, or even until one is running, to freak out about white nationalism; you freak out as soon as you can conceivably see a future path to the nightmare scenario. Hence the warnings that we not “normalize” Trump–i. e. allow the Overton Window to move in his direction. As for why people can’t freak out in a more reasonable, accurate manner, calling a sheep a sheep and a fox a fox… well, that’s not really what freaking out is all about, and there is ample precedent for a “nose under the camel’s tent” approach to policy.

    People can generally tolerate moving in the right direction slowly, but they start to freak out if they perceive things to be moving in the wrong direction, however slowly. Cthulu has mostly been swimming left, with a few rests and exceptions (the labor movement), for the past hundred years. Hence the intensifying, slow-mo freak out of conservative America. The election of Trump feels not only like a rest for Cthulu, but maybe even a hard turn in the opposite direction. For people who’ve dedicated their lives to yelling for Cthulu to swim faster, this is understandably unnerving.

    Of course, everyone could “stand down” simultaneously and only react to the merits of the policy or candidate in front of them, rather than to the sinister, secret long-term goals they suspect they represent, or in which direction they think they might take us. In a way, I think Scott’s post is just an argument about the damaging effects of hyperbole in general. But the game theoretical difficulties with that are obvious…

    *Though I think this is largely correct, as anecdotally corroborated by Scott’s report, and my own experience of, people actually claiming to contemplate suicide in response to the Trump election. Based on the treatment of Romney, I think there’s a sense in which “frighten them to death that the opponent is a monster” has just become the standard Dem strategy, which they would have used against opponents other than Trump as well. And yes, I think this is irresponsible, both because you lose all credibility for when a real monster shows up, and because you are manipulating people emotionally for political ends (not that the right doesn’t manipulate people with fear about other things, such as terrorism).

    • Fossegrimen says:

      I don’t vote in the US, and haven’t followed the whole debacle enough to have an informed opinion, but if I were to judge which president makes a future David Duke presidency most likely, I’d have to go for Hillary.

      She appears to fan the flames of BLM, and after 4 more years of encouraging them, the backlash would be spectacular. Conditional of course on her continuing her past behaviour after becoming president.

      • Moon says:

        Wait a year or 2, and see what you think then.

      • onyomi says:

        It is conceivable, but I largely don’t subscribe to a “backlash” theory of history (not a few libertarians, for example, actively desire the more awful president, on the theory it will hasten peoples’ realization that government doesn’t work… I disagree). Which is why I didn’t agree with Scott’s argument that a Trump presidency would be bad for opponents of SJW. Where Cthulu swims, he pulls the Overton Window with him.

    • Moon says:

      People who thought Romney really was a wolf, rather than a sheep, had their right to cry out. W was pretty much a wolf. I wouldn’t accuse anyone of crying wolf who didn’t want W to be president, after his disastrous Iraq War based on lies about WMD. If some people were expecting the same sort of MIC support and war mongering from Romney, that would be an understandable reason to cry Wolf.

      • onyomi says:

        As I believe Scott did, I am using “wolf” in this context to refer specifically to a candidate who is dangerous because of bigotry (“binders full of women”) not a candidate who is just dangerous for some reason (after all, Scott did argue that Trump was a dangerous choice, but not for reasons of bigotry).

      • ThirteenthLetter says:

        Of course they had the right to cry wolf about Romney. But, given the election results two weeks ago, maybe it wasn’t wise.

    • Wrong Species says:

      I understand that attitude when it comes to race. But the whole thing about Trump leading to condemnation of homosexuality is ridiculous. For one thing, there’s the fact that not only has Trump never said anything negative about homosexuality itself, he has spoken in favor of many things that evangelicals hate including gay marriage, trans people choosing their own bathroom and funding Planned Parenthood. If anything, Trump has shown that conservatives don’t really care about religion anymore.

      • ThirteenthLetter says:

        Yeah, that part is kind of like a lower-level layer of wolf-crying. You can make arguments that Trump is racist or sexist; I don’t feel qualified to pass judgement on them, but I can comprehend them. But anti-gay? Nope. Not even a little, tiny, bit. Trump is by far the most gay-friendly candidate the GOP has ever nominated for President, and arguably more gay-friendly than anyone the Democratic Party has ever nominated before 2016 — don’t forget that Obama claimed to be against gay marriage in 2012. Even if you tested him against 2016 Hillary Clinton on the matter, it’d at least require some research to call it one way or the other.

        • Evan Þ says:

          I completely agree with you about Trump personally, and about the policy his administration is likely to engage in. However, the Left’s fears aren’t completely unfounded here: Vice-President-Elect Pence signed into law the Indiana Religious Freedom Act before reversing course under huge backlash (to face, in turn, accusations of cowardice from the Red Tribe.)

          • HeelBearCub says:

            Marriage equality and most other gay rights are the result of SCOTUS decisions. You still can’t get gay rights in most state houses.

            Trump has committed to putting conservative justices on the Supreme Court. The likely future vacancies would put most of those decisions at risk.

          • Jaskologist says:

            The fact that the Left is horrified by Religious Freedom Acts, which were a bipartisan Clinton-era policy, shows many things, but not that their fears are founded.

          • keranih says:

            @ HBC –

            The likely future vacancies would put most of those decisions at risk.

            I think you’re over reading this. If it were liberal justices that were putting a previously balanced court out of balance, then yes, previous controversial conservative decisions would be in danger of being overthrown.

            But the thing about conservative judicial thought is that is it conservative and very reluctant to over throw precedence.

            Even if Trump gets three justices in the court, we can’t make it like the previous (imo bad and harmful) decisions were never made, hey presto. They are part of the fabric of the law.

            So, I think a little less alarm over this is due.

          • Wrong Species says:

            @keranih

            That seems pretty naive. Scalia was one of the most conservative Supreme Court justices and he wanted to strike down Roe vs Wade, which has a longer precedent than a year old ruling. I wasnt thinking about his judicial appointments. Trump may not be hostile to homosexuality but his Supreme Court justices may be so it makes sense for the left to be concerned.

          • HeelBearCub says:

            @kerinah:
            The current SCOTUS has members who have voted against precedent many times. I see no reason to think that any of the 4 votes on the court against marriage equality would flip in favor of marriage equality if a 4th and 5th justice were added who do not believe marriage equality is a constitutional guarantee.

            Maybe John Roberts. Maybe. But I am doubtful. He has authored some weird partisan “split the baby” rulings that really don’t respect precedent. Voting that the President doesn’t have the authority to set enforcement priorities on immigration (when that authority was specifically granted him and there is long precedent) was also really weird.

            I see no reason to expect the conservatives on the court to be bound by a very recently ruled precedent that they voted against.

          • The Nybbler says:

            @HBC
            I think respecting stare decisis in a gay marriage case would likely take the form of denying cert or (in the unlikely case of an appeals court going against Obergefell) a per curiam decision to reverse; it wouldn’t require any judges to publicly change their opinion.

            @Wrong Species

            Older rulings aren’t necessarily stronger; there are several exceptions to stare decisis which make newer rulings stronger. So Roe v. Wade is theoretically more vulnerable than Obergefell. I think in practice, because Roe v. Wade set a somewhat blurry line (of when and how much abortion is protected) on a continuum, it is more likely that line will be moved earlier or more restrictions will be allowed, rather than a complete overturning of the decision.

          • HeelBearCub says:

            @TheNybbler:

            (in the unlikely case of an appeals court going against Obergefell) a per curiam decision to reverse

            Just make sure your case goes through the right appellate circuit and I don’t think it’s all that unlikely (although I confess I don’t know what the appellate courts look like right now).

            Can SCOTUS rule per curiam reversing an appellate decision without hearing the case? How often does that happen?

          • Jordan D. says:

            Honestly, I think people are putting way too much emphasis on stare decisis. That doctrine is a fig leaf which is usually used in a kind of consequentialist way- “I don’t personally agree that a state entity shouldn’t have independent standing in this case, but that’s the way it’s always been and it’d probably do more harm than good to change course now.” I’ve met only a handful of judges who would be unwilling to upset precedent on issues which really, really mattered to them.

            So I agree in theory with the premise that Roe is on shakier ground than Obergefell, but not by a lot. I could see Kennedy being convinced to maybe adopt more restrictive standards under Roe, and that’s about my entire reasoning. If any of the Justices who voted for gay marriage dies tomorrow, I think the only question is whether Roberts is convinced that pre-existing marriages must remain valid and how many of those states won’t have the political will to re-inact bans.

            Now, that calculus changes if Trump can find a Justice who’s all about Obergefell but hates Roe, but I really can’t imagine who that would be. Tactically, he’s quite right to look at it that way; whereas overturning or limiting Roe would be a huge win for the Republican party, I think overturning Obergefell would do very little to excite his base and a whole lot of incite the Democratic base.

            Edit- In reply to HBC:

            If you were going to run a challenge to Obergefell through any of the Circuit Courts, you’d probably go 6th Circuit, but even then what you’d almost certainly get for the time being is a decision against you to appeal further.

            And the Supreme Court very seldom rules per curiam against a Circuit Court, but that’s what would probably happen to a ruling which was so obviously contrary to settled law.

          • The Nybbler says:

            @HeelBearCub

            Can SCOTUS rule per curiam reversing an appellate decision without hearing the case? How often does that happen?

            Yes. The most common is a “GVR” order in response to a petition for a writ of certiorari — grant cert, vacate the appellate decision, and remand for further proceedings. These are common but probably would not be applicable in a case where an appellate court defied existing precedent; they’re often used where the Supreme Court made new precedent while the case was in process.

            An appeals court defying precedent would probably result in a summary reversal. This is exactly as described: they reverse the decision based on a petition for a writ of certiorari without hearing further arguments. These appear to be less common; the Washington Post in 2014 described them as happening “a handful of times each year”. But I’d expect an appeals court out-and-out defying recent precedent to be fairly rare as well

          • HeelBearCub says:

            how many of those states won’t have the political will to re-inact bans.

            I’m pretty sure it wouldn’t require this. The laws on the books have not changed for the most part.

          • Brad says:

            Conservative justices are conservative is oversimplifying. Thomas is currently the most conservative in the sense of right wing Justice on the Court and he is a radical in terms of stare decisis. Over the years he has written many solo concurrences and dissents suggesting that he would overturn bedrock decisions. The oldest one that comes to mind, though probably the oldest, is his suggestion in McDonald that the Slaughter-House Cases from 1873 be overruled.

            If someone comes along at points to a a paragraph somewhere where he suggested the Court take another look at McCulloch v. Maryland I wouldn’t be all that surprised.

          • HeelBearCub says:

            An appeals court defying precedent would probably result in a summary reversal.

            I would expect this to be the case where the composition of the court was unchanged.

            If the composition of the court changes by two justices appointed by Trump using his stated method? Again, I see only the possibility that Roberts stands on a precedent he did not agree with. But that is a thin reed.

          • ThirteenthLetter says:

            Overturning Obergefell is seriously unlikely.

            With regards to the GOP establishment, their main attitude towards the gay marriage issue (not “marriage equality,” where did that awful, propagandistic phrasing come from, anyway?) was that they just wished it would go away, since every time it came up they got smacked around by the media and the left. One good thing for them about the SC decision, the issue went away. You are not going to find a lot of Republicans in elected office who want it back. And the SC listens to politics — if it didn’t, John Roberts wouldn’t have swooped in with his flagrantly ridiculous reasoning to save Obamacare. The decision is gonna stand.

          • Matt M says:

            Agreed.

            I’m struggling to think of any prominent Republicans who have campaigned on the issue of overturning same sex marriage. There aren’t even that many who are willing to fight the transgender bathroom issue and that one hasn’t been litigated at the SC-level yet…

          • HeelBearCub says:

            The entirety of the Republican coalition in NC managed to convene a special session and pass a haggis of a bill in 12 hours which the governor signed without blinking or thinking when faced with a single municipality that codified trans bathroom rights.

            Are there any Republican legislatures voting in favor of trans rights? Any of them?

            I think you guys are wishing the Republican politicians would take certain positions, rather than reporting the positions they actually take.

            I pretty much guarantee that Alito and Thomas would be perfectly happy to relitigate Obergerfell. Name two more justices to the court that are as conservative and it does not matter how moderate the average Republican is. Roberts will be the median vote and it will all fall to him. Because the most conservative organizations are eager to relitigate this with the right court.

          • ThirteenthLetter says:

            Are there any Republican legislatures voting in favor of trans rights? Any of them?

            Were we talking about trans rights just now?

            Oh, we weren’t? Well then.

          • HeelBearCub says:

            @Thirteenth Letter:
            You perhaps should read Matt M’s comment before you get huffy.

          • ThirteenthLetter says:

            Aw, but getting huffy is the most fun part! But you’re right, I missed that. Apologies.

            That being said, the whole bathroom bill thing is not a meaningful data point that the GOP would voluntarily relitigate gay marriage. It’s simply a different issue with different incentives and motivations, even if you can put it in the same large category of “culture war stuff” or whatever.

          • HeelBearCub says:

            @ThirteenthLetter:
            It doesn’t matter how eager the average Republican is.

            Let me repeat that, it doesn’t matter how eager the average Republican is.

            In 2004, the average Democrat had no desire to put gay marriage to the fore as an issue, but, to those for whom it was the most important issue, that did not matter. San Francisco started issuing marriage licenses and put the issue front and center, and forced courts to consider the issue.

            Anti-gay marriage advocates will ensure the same kind of legal battle occurs as soon as they feel they have a court that will side with them.

          • ThirteenthLetter says:

            In 2004, the average Democrat had no desire to put gay marriage to the fore as an issue, but, to those for whom it was the most important issue, that did not matter. San Francisco started issuing marriage licenses and put the issue front and center, and forced courts to consider the issue.

            In order for that to happen, you don’t just need a couple of noisy activists with a brief window of opportunity, you need a party leadership who is willing to go along, even with the expectation of a decades-long battle. In the GOP right now, the people with the power are the establishment Republicans, who’d rather die than touch the issue again, and the Trump populists, who don’t care about it.

          • HeelBearCub says:

            @ThirteentLetter:
            All this is required is one state that is substantially more conservative on this issue. Kansas, maybe.

            Actually you don’t even need that. All you need is one official to assert that the direction being given them, by the state executive, is unlawful by the laws on the state books which have not been altered. That one officials case can be walked all the way to the Supreme Court.

          • ThirteenthLetter says:

            That one officials case can be walked all the way to the Supreme Court.

            Only if the government takes the appropriate sides at every one of the appropriate times, and every single level of the executive and the courts above it cooperate obediently, and the party apparatus doesn’t lean mightily on everyone involved to shut up and drop it, and the legislature doesn’t insta-cave and pass a gay marriage bill real quick anyway to give everyone an excuse to let it go. (Which it will — you really can’t underestimate how eager GOP legislatures are to cave to media pressure.) I suppose it could happen, but lots of things could happen, and you’re going to have to ask yourself whether it’s worth worrying about them.

            But, you know, this is an argument for total political warfare no matter what. What if the Democrats nominate a SC justice who doesn’t believe the Second Amendment confers an individual right? Then all we need is one crazy local official somewhere in Berkeley, and that’s it for the Second Amendment, right? So obviously we must fight every second tooth and nail and destroy the Other to save ourselves.

          • HeelBearCub says:

            @ThirteenthLetter:
            All the government has to do is not change the law on the books. Many states passed explicit laws defining marriage as between a man and a woman in the past 15 years.

            Most Republican legislatures will not act to change those laws. You think they will, but I think you are greatly misreading the makeup of Republican elected officials.

            You need one official attempting to enforce that law. The next Kim Davis. It would help to have a sympathetic AG, but if you have the right helpful outside org, you don’t need that.

            Almost any action against that official can be turned into a case.

          • ThirteenthLetter says:

            I guess we’ll just have to see, then! But I suspect you’re gonna be sorely disappointed. Never underestimate the ability of GOP-appointed judges to avoid an issue.

          • John Schilling says:

            Never underestimate the ability of GOP-appointed judges to avoid an issue.

            Indeed. Roe v. Wade is forty-three years old this year. The supreme court has had a conservative majority for essentially all of those years. I count four, maybe five occasions when one of the justices was replaced by another of noticeably more conservative leaning, which might be taken as a sign that This! Is! Your! Chance! to finally repeal RvW. And in all of that time, all of those shifts of power, and all of the cases that have come before the Court since, I can’t seem to find a single example of the Supreme Court even granting cert to a case that asked them to reverse Roe v. Wade’s core protection of a woman’s right to a first- or second-trimester abortion essentially on demand. Every case they have deigned to hear, asked for a weasel-worded response of the form, “Yes, of course you can have abortions but…”, you might have to pay for them yourselves or you might have to tell your parents, etc.

            I do not expect anything more, or less, for gay marriage. Well, probably a bit less in that it really isn’t as big an issue for conservatives as is abortion and more of them would prefer people just stop talking about it. Trump will appoint and GOP senators cheerfully confirm, the sort of justices they think will mostly just protect the realm from the unholy scourge of compulsory wedding-cake baking.

          • Brad says:

            Planned Parenthood v Casey in 1992 was supposed to be the case that overturned Roe v Wade. O’Connor, Kennedy, and Souter got cold feet and wrote a plurality opinion that upheld the central holding. There were four votes to strike down R v W — Rehnquist, joined by White, Scalia, Thomas

            There’s some fascinating reporting on this based on the papers of Justice Blackmun.

            Today it is highly there are 2 votes to overturn R v W. (Alito & Thomas). If Trump picks off his list that’ll be 3. Roberts is a maybe. To be certain of overturning it Trump would have to have two more appointments (assuming those appointments didn’t replace Alito, Thomas, or Scalia’s replacement).

            Given the ages of the people involved that’s reasonably likely in four years and even more so in eight.

          • John Schilling says:

            Planned Parenthood v Casey in 1992 was supposed to be the case that overturned Roe v Wade.

            And yet, if the plaintiffs had won everything they explicitly asked for, first and second-trimester abortions would still have been legal, and protected from state interference, burdened by no more than paperwork less onerous than e.g. a post-Heller gun purchase.

            Granted, Casey would have allowed the court to give the plaintiffs more than they wanted, to the extent of overturning Roe v. Wade if that’s what the Court wanted. But if that was the case, the bottom line is that even a Court with eight Republican appointees (six from the litmus test era) didn’t bite.

            Bottom line, the Supreme Court only grants cert (and maybe only is ever submitted) cases that are carefully presented to let them weasel out with “Abortions for all, now with extra paperwork!” or the like.

    • dndnrsn says:

      Trump has widened the Overton Window, or at least let some people outside of it know that there are more of them than they thought.

      His nomination and his winning the election have shown that somebody who has been called a racist, white supremacist, etc (and, regardless of what he actually is, these charges are more credible than they were for the past two presidents) can be nominated and elected. He is currently bringing in people like Bannon and Flynn who are, at best, extremely distasteful: Bannon, if not a racist, white nationalist, misogynist, whatever, himself, is glad to make money with those people as his audience; Flynn’s views about Islam involve identifying all Muslims with the most aggressive forms of Islam.

      It is not a huge surprise that, leaving aside the question of what Trump or whoever actually believes or their actual intentions, this has emboldened people who definitely are those things. There actually are people who shout “you’re gonna get deported” at people they think “look foreign”, mess with women wearing hijabs, etc. There actually are some neo-Nazis, even.

      • stillnotking says:

        White nationalism and white supremacy are just the scurf atop a deeper social shift. The real key here, as you said, is that a presidential candidate who was relentlessly called those things just won a national election. That isn’t a consequence of the Overton Window being moved; I remain confident that sixty million Americans wouldn’t vote for a man they genuinely believed to be a white supremacist. (If they would, then the window was opened by the nose cone of an incoming 737, and we’re all pretty screwed.) It seems more likely that they discounted the accusation, despite Trump’s own rhetoric being the sort to give it some prima facie credibility. So either we’ve become inured to such charges through too much repetition — this is basically the NYT’s “cry wolf” theory Scott linked — or something has changed about how we evaluate them. Perhaps “racism” is no longer wholly synonymous with “evil” in the American mind, so we’ve regained some of the 1970s perspective that people can be kind of racist but still basically okay (the “Archie Bunker” theory, or perhaps the “South Park” theory in modern parlance).

        A third possibility is that Trump himself is such a… unique personality that people didn’t really know what to think, and projected whatever they wished upon an essentially blank canvas. I get this impression when I read comments from some of his more fervent admirers, but I don’t get the sense that the voters in general felt that way.

        • The Nybbler says:

          That isn’t a consequence of the Overton Window being moved

          I think it has. It’s now within that window to be openly against admitting refugees. To suggest harsh treatment for illegal immigrants (it was never…quite… outside the window to be against illegal immigration). To openly denigrate Islam. To support American nationalism. To be crude. To suggest that protests should be shut down by force. To suggest that elections aren’t perfectly honest. To be one step removed from white nationalists. The window has not so much moved as widened; it’s not so big that it encompasses actual white supremacists, but it’s a heck of a lot wider than it was before the campaign season.

          • stillnotking says:

            The sticking point for me is the “one step removed from white nationalists”. Insofar as “white nationalism” is meant literally, i.e. advocacy of America becoming an entirely white nation or of white Americans forming their own nation, I’m not convinced the window is any closer to that than it was. The idea that there’s a linear progression from “no illegal immigrants” -> “no refugees from ‘dangerous’ countries” -> … -> “white nationalism” just doesn’t seem quite right, or at least, it seems like a liberal frame that Trump sympathizers would reject. I noticed during the campaign that the pro-Trump folks were very enthusiastic in their support for legal immigration, which is not a thing they have in common with white nationalists. Granted, a lot of that was probably virtue signaling or deliberate distancing, but the mere fact that they see virtue as being in that direction tells us something.

            I suspect it’s more about a resurgence of “law and order” conservatism, combined with some undeniable prejudice against Muslims. Also, they’re of the opinion that immigrants need to assimilate into American culture and values, but again, that “melting pot” idea, while seeming retrograde and no doubt racist to many liberals today, is the diametric opposite of white nationalism.

          • Sandy says:

            it was never…quite… outside the window to be against illegal immigration

            I’m curious: at any point of time in her 2016 campaign, did Hillary ever say illegal immigration was bad?

          • suntzuanime says:

            Illegal immigration should be safe, legal, and rare.

          • hlynkacg says:

            Unless you’re advocating open borders that statement doesn’t make much sense.

          • suntzuanime says:

            Sorry, maybe the joke was too obscure. “Safe, legal, and rare” was Clinton’s position on abortion, seen by some as a cowardly attempt to have her cake and eat it too. (see e.g. https://www.theguardian.com/commentisfree/2014/jul/09/hillary-clinton-abortion-legal-but-rare cw: pro-abortion advocacy)

          • houseboatonstyxb says:

            @ suntzuanime
            “Safe, legal, and rare” was Clinton’s position on abortion, seen by some as a cowardly attempt to have her cake and eat it too.

            Back in that day, the point was ‘Abortion should be safe and legal — but rarely needed.’ Contraception, sex education, and such should be improved so much that unwanted pregnancy was a very rare occurrence.

          • Moon says:

            Everything Clinton ever said or did was portrayed by fake news creators as cowardly, stupid, or crooked– usually all three.

            That’s the job description of the Right Wing fake news creator: Assume that Clinton is crooked, cowardly and stupid. Now comb through every hacked email and also every other statement she ever made and also everything she ever did– and find something that could be construed as evidence for her crookedness, cowardice and/or stupidity– if you distorted it enough or twisted the meaning of it enough. Then weave a thick tapestry of lies around it. Deliver to the public.

          • suntzuanime says:

            Noted right-wing propagandist Jessica Valenti, lol.

          • Moon says:

            Of course, there are plenty of people on the Left who bash Hillary mercilessly and unfairly also, although most of it is from the Right. She’s been bashed for decades– the worst character assassination campaign against any American politician in a long time.

            We are immersed in Right Wing Dem-bashing propaganda, and some of it has affected people on the Left too, who then practiced unjustified Hillary bashing on their own. Just because an occasional Left of Center picks up the Hillary bashing habit doesn’t make it fair. And it does not make their lies true.

          • Moon:

            Have you ever responded to my questions about Hillary’s cattle future trading? Either “Yes, she funneled a bribe to her husband, but that’s a pretty minor form of corruption” or “no, here is a plausible explanation of how and why she turned a thousand dollars into a hundred thousand speculating in a market which she had no special knowledge of.”

            With no answer, it’s hard to take seriously your insistence that charges against Hillary are all right wing propaganda.

          • Paul Brinkley says:

            Moon hasn’t even responded to even more innocuous questions, such as how she defines right-wing, center right, and left wing, or what rules she uses to distinguish between a serious news site and an unserious one. I’ve found it disheartening, since it makes it incredibly difficult to challenge my prediction that she simply equates “left-wing” with “serious”, “right-wing” with “unserious”, “disagrees with her” with “dogpiling”, and in general that there’s any sort of information one can glean from this view of the world. It’s too easy to predict.

          • hlynkacg says:

            You’re not helping paul

          • cassander says:

            @hlynkacg

            I think that’s debatable. Moon’s new name has not brought about any appreciable change in her willingness to actually address criticisms of her with anything besides insult. She simply declares questioning her positions dogpiling, rude, or ridiculous, then moves on to repeating the same lines in slightly different phrases. She does this as much to paul, or me, as the impeccably polite David Friedman. She’s hopeless.

    • Reasoner says:

      Great post onyomi. I think you’ve got your finger on something extremely important.

      Recently the press has been covering Richard Spencer, the alt-right leader. The coverage frustrates me. Everyone denounces him for his desire to turn America into a white ethnostate. What I’m trying to figure out is whether he wants to use violence to do this or not. That seems important for determining exactly how awful he is. But the press doesn’t seem to care–to them, his desire for a white ethnostate is sufficient to make him as evil as it gets.

      But as you say with your “nose under the camel’s tent” comments, current statements are not necessarily indicative of future actions. There’s no way for someone like Spencer to credibly precommit to avoid the use of violence. However, I’m still disappointed that the press seems to think that ethnonationalism for white people and mass slaughter are morally equivalent. They don’t draw the same equivalence for ethnonationalists of other races. I worry that casting the two as equivalent may create a self-fulfilling prophecy.

      • Earthly Knight says:

        “Sure, he sieg heils, supports ethnic cleansing, and talks about how the lugenpresse is controlled by soulless golems. But how bad is he, really?”

        • dndnrsn says:

          It’s striking how quickly they went from insisting they weren’t Nazis to openly doing Nazi shit the moment they got a whiff of the ghost of possible electoral success.

          • hlynkacg says:

            “They” being who exactly?

          • dndnrsn says:

            The attendants at the NPI conference, for one thing. Haven’t they traditionally been part of the crowd that presents themselves as respectable and not full of hate?

          • hlynkacg says:

            Have they? Honestly I thought their “suit and tie fascist” shtick was well established but then I can’t say that I ever really paid them much attention either.

            That said, TIL that Spencer used to be the editor of Taki’s Mag which explains his apparent prominence.

          • dndnrsn says:

            My impression, in any case, is that they had – my impression has always been that the NPI, etc, are basically about halfway between the “tweedy white nationalists” like Jared Taylor and the Steve Sailer types, and actual Nazis, but when they start throwing up Nazi salutes in response to the guy on stage yelling “hail victory!” I update towards “no, these guys are Nazis”.

          • hlynkacg says:

            Fair enough.

          • Whatever Happened To Anonymous says:

            It’s striking how quickly they went from insisting they weren’t Nazis to openly doing Nazi shit the moment they got a whiff of the ghost of possible electoral success.

            It never seemed to me like they tried very hard to deny being Nazis, but to be fair, I haven’t been following them that long.