This is What I Don't Understand

Threats to the Judiciary

Here's what I don't get:

The federal courts are weighted Republican. Since Reagan, they've been shoehorning 'em in. I don't know the stats, I just know the law-school gossip, okay? Knee deep in Republicans.

So. What, did they manage to pick the wrong people? Is that why some fundamentalist yahoo feels the need to threaten a Supreme Court Justice*? To quote Stalin and say "no man, no problem"? (The full quote is, "Death solves all problems: no man, no problem".)

Yeah, because Stalin is the kind of pro-democracy, freedom-liberty-and-apple-pie kind of thinker all patriotic Americans should look to. Not.

[*] In fact, the Supreme Court Justice who talked to my class just yesterday.

Moderation is Coming!

THe Unitarian Jihad

Personal Update-type Blog Entry

Forthcoming publications:

Online magazine Peridot Books will be publishing my science fiction story "It's the Smell" in May 2005.

The Writers of the Future 2005 anthology, due out in August 2005, will include my science fiction novelette, "My Daughter, the Martian".

The more things change

The more they stay the same. It's stupid, I know, but yeah, I had the same moment of naivete that I'm sure a lot of people who already knew about RAWA did: Oh, now that the Taleban is deposed, we don't have to worry about them.

Not true.

Afghan women need your help, as much as they did before the US invaded.

Revolutionary Association of Women in Afghanistan:

RAWA was founded in 1977, and they've been fighting for women in Afghanistan every day since. I've known about them since 1997 or so, when a RAWA rep contacted us at the 3rd WWWave of Feminism to ask for help. Not being a foundation or trust-funded .org or anything, all we could do was publicize their plight and give money out of our own pockets, which we did.

I can still do that.

You could do that, too.

Help them fight.

Terri Schiavo, Bulimic.

Brutal Woman steps up to the plate. Pun intended. Martyr Yourself for Christian America.

Quoting Paul Campos in a column in the Rocky Mountain News:

As I write these words, Terri Schiavo is being starved to death because she was once a chubby little girl.

You should go read the Campos article in situ. While you do, let your gaze drift to the right of the text, just a little, where the ad for the health club is. Then try and deny the message sent every minute of the day to American women: be thin, be thin, be thin.

Kill yourself, so long as you're thin.

(More at The 3rd WWWave.)

Culture of Life? Party of Life? Prove it.

I agree with Echidne

The U.S. government doesn't usually act as if every life were infinitely valuable. If it did, there would be no mercury in the tuna that is being fed to our children. If it did, there wouldn't be a single bridge that needs maintenance work. If it did, there wouldn't be a single product sold in the country that fails the highest safety requirements. For the mercury in the tuna may kill a child one day, a bridge may collapse with cars on it and a faulty product may murder people one day. Even a traffic junction without lights can cause a deathly accident.

Yeah. You want to tell me the Republicans are a Party of Life? Prove it. Don't shitcan Social Security for the old folks. Don't cut Medicare and Medicaid. Make abortion unnecessary by providing an actual *support network* for pregnant women and those raising children. Up pollution standards and improve our toxic cleanup programs. Get rid of the mercury in our tuna, the lead in our paint, and the asbestos in our old school buildings.

But, they're not *that* party of life, are they?

Pointing out the Blindingly Obvious About 'Women's Issues'

Big Brass Blog

"I’ve seen the argument made by male bloggers that an issue like Social Security is of concern to everyone because it affects everyone’s bottom line, but that "women’s issues" are somehow distinct to women. I would argue that women still making $.80 on the $1 affects the bottom line of every household that’s got a working woman in it".

Simple. Succinct. Beautiful.

Hey, who couldn't use more money? If you are married to a woman who works, wouldn't you want to have more money, via the no-work-required-on-your-part method of having her be paid more? Doesn't that sound nice?

If your mom and dad both work, and are looking ahead to their retirement, and you're looking ahead to their retirement, too, to how you might be offering them some support at some point, wouldn't more money, because Mom gets paid a decent wage, be helpful?

Don't you think?

One Size Does Not Fit All

For the purposes of this discussion, I want you to pretend the author of this article is a woman who is 4 feet, 11 inches tall, and weighs 170 pounds.

It's become fashionable recently to do things like fire smokers from their jobs, or propose "sin taxes".

Workplace Smoking Bans:

Weyco banned smokers from its payroll, began testing employees for nicotine and fired four workers who refused to take the test after the policy was enacted in January.

Today, it's smoking.

Tomorrow? Tomorrow, it's legislation to protect people from The Obesity Epidemic. If you're not within the national weight norms for your gender and height, maybe you'll be fined. Or maybe you'll lose your job. And I'll bet you won't get any assistance in helping you lose weight, because this is the Bush Ownership Society. You're On Your Own. But you'll be nicely penalized.

Now, the actuarial tables say that women who are 4 feet, 11 inches tall, should weigh something around 100 lbs.

So, turn and take a look at me. Of course, you can't, because this is the Internet. I'm overweight. But not by 70 lbs. More like 25-30. I'm not obese, though I might fit that formal height/weight definition. I feel good. I exercise every day and I eat a very healthy diet: no processed foods, little/no caffeine, and little/no alcohol. I don't get shortness of breath going up the stairs to my apartment unless something is dragging my metabolism down, like overfatigue or dehydration or something, and I can feel it when it does.

I have an Olympic gymnast's thighs - thicker! - and Tour de France calves. I can leg-press a small to medium-sized car. I have the shoulders of a man. A specific man, actually, my twin, a man who is about a foot taller than me. I measured, once, on a photo of the two of us.

Let's face it, I'm built like a tiny, somewhat curvy, top-heavy, tank. With big knockers.

I'm 4 feet, 11 inches tall. But I don't weigh 100 pounds.

So, according to the actuarial tables, you shouldn't hire me, or insure me, or take any other kind of risk on me. You should fire me or refuse me or fine me, until I meet the national health norm.

A one-size-fits-all law would say I need to lose about 70 lbs to fit a standardized idea of "healthy". A company adhering to one-size-fits-all federal or state guidelines might say to me, "lose 70 lbs or lose your job".

I don't need to lose 70 lbs. 30, max, to get back to my fighting weight, and I mean "fighting" quite literally.

But I'm screwed, because I don't fit "the standard".

Human beings are really standardized only to the extent that we are more-or-less suited for walking upright, have binocular vision, and are bilaterally symmetric (one of each limb on each side of the body, basically).

As for the rest of it - height, weight, muscle mass, fat, metabolic speed - we all vary significantly. The people who are best qualified to aim directives at each of us for the benefit of our health are those who know us as individuals, not statistical groupings or witnesses testifying before Congressional subcommittees. The people who have weighed, poked, prodded, drained, probed, and inspected us, personally, from stem to stern.

You know, our doctors.

Because MY doctor would say, "70 pounds?! You lose seventy pounds, and I'll put you in the hospital on an IV." For some other woman, 70 pounds might be just what the doctor ordered.

But that's the doctor's orders, working directly with a single patient, together, to achieve their best health and welfare.

Not a legislature's orders. Not an employer's orders. Because one size does not fit all.

Want to hear a funny thing?

All this time, I've been talking about abortion.

When a legislature promulgates a rule saying that women may only have abortions under specific conditions, no matter how hard they try, they will leave out case-by-case situations where they themselves would, if fully apprised of the circumstances, dash tears from their eyes and say, "yes, you should abort". They'll leave those out because you can't imagine every single variation on a theme.

It's One Size Fits All.

But One Size can never Fit All women across the United States. Because we're all different. Each one of us lives in a different economic situation, with different health needs or medical problems, different levels of social and familial support, different stressors, different risks, different advantages. We're all different. Not standard. You cannot foresee every single situation.

So, instead of putting the power to determine who does or does not have an abortion in the hands of the people most removed from the specific circumstances, and therefore least-qualified to decide whether you should have one, why not keep that power in the hands of those in the field? On the ground. In the trenches. The ones with the test results and medical history right in front of them. You know, doctors and their patients.

Calling back Guards?

I read somewhere a couple weeks ago that a bunch of cities/townships in Vermont had moved to bring their Guard units currently in Iraq home. And it occurred to me to ask if this were a binding resolution, would it be enforceable?

(Wait, I found a 'somewhere'. Here. Read this. 57 communities pondered some form of this resolution, and 48 passed it, 3 voted it down, one tied, and the other 4 tabled it for later.)

The resolution, as introduced, calls for the Vermont Legislature to study the effect of National Guard deployments on the state; implores the state's congressional delegation to work to restore a "proper balance" between state and federal control of the Guard; and asks Congress and the administration of President Bush to withdraw U.S. forces from Iraq at a quick but "humanitarian" pace.

So, the bulk of Vermont has just passed a nonbinding resolution that their Guard units should come home. What happens if, say, tomorrow, they pass a binding resolution? I guess the real question is, does a state still have control over its Guard units, when they've been called up for Federal service? Note that I'm assuming the state has some control over its Guard units at all.

Well, OK. Let's address the latter note first. Article 1, Section 8, clauses 15 and 16 of the Constitution talk about providing "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and providing "for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States..."

(Now, to back up an even further step: State and National Guardsmen are not Navy, not Army (the two types of forces explicitly mentioned in the Constitution). They must be something. Therefore, militia.)

If the Congress has to "call forth" the militia, and provide for organizing, arming, and disciplining the part of the militia employed in the service of the US, then when the militia or a part of it has not been called forth, that militia must be in the service of the State, not the United States.

Otherwise, there wouldn't be any calling forth to begin with, because the Guard has to be under some authority, somewhere.

What isn't clear from the Constitution is whether a State can simply demand its Guard back. I doubt, structurally, that it could.

If the Militia has been called forth into federal service (service of the United States rather than service of its own State), they're placed under the command of the Executive branch in the Executive's role as Commander in Chief of the Armed Forces. ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." Const. Art. II, §2, cl. 1.)

The President can't make use of these forces as forces - strategically and tactically - if a State were permitted to reclaim them without the Executive's permission or at least acknowledgement. To do so would diminish the Executive's authority on the battlefield, by permitting another authority to supersede his in the direction of troop movements, which directly contradicts the Constitutional delegation of power to the President as Commander in Chief.

Furthermore, the Congress has the authority to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" -- a list of powers which included the power of calling up and providing for militias in US service. Const. Art. I, §8, cl. 18. The power to call up, to hold, should also include the power to release, should it not?

However, there's another problem. What if the Militia's use is unConstitutional?

Art. I, §8, cl. 15 lists the tasks for which the Militia may be called up: to "execute the Laws of the Union, suppress Insurrections and repel Invasions". Is invading and occupying another country on that list? Is that list exclusive? (Expressio unias est exclusio alterius. Specifying one is to the exclusion of others.) And even if that list is not comprehensive, all three elements are of a domestic nature - internal regulation, policing, and defense from physical invasion by an enemy. All tasks for which you need to be here, in the US, to perform. Deployment on the other side of the world in a war against and occupation of another country certainly sounds like foreign, not domestic affairs.

So, I am not at all certain that even if this list of jobs for the Militia is just a starting point, that non-domestic tasks should be included.

Finally, Muslim clerics start policing Bin Laden

Bin Laden fatwa

This is good news. Do you get why? For the same reason that the US can't impose democracy somewhere.

Change has to come from the people. We - that's the outsider 'we', the international community 'we' - can offer assistance, whether that assistance is money or guns or food or what have you, but that's it. The real work, the real change, the real commitment, has to come from the people who live there. Or, in this case, worship the same.

This fatwa? Spain has a large Muslim community, and this fatwa is supported by Muslim leaders from Morocco, Algeria and Libya. With it these communities are using the normal channels of their religion to discipline Bin Laden, to distinguish him from themselves, and draw the line that says "a good Muslim does not do these things".

This is important. This has the possibility for real impact.

Thanks to Green Knight for the tip.

The answer is "Yes"

May we call them fascists NOW?

On Thursday [a local business] was contacted by someone who claimed to be a "federal agent" and told that they were not allowed to display any signs critical of President Bush or his plans to dismantle Social Security.

Yes. Yes, you may.

I'm going to take this opportunity to also say:

Please don't let publishing this information online be the only "press release" this story gets. Call the local paper in Memphis. When we -- that's the Internet 'we' -- publish online, we forget that not the whole world (or local community) read the same blogs we do, or reads online at all.

Clever Girl, Part II

A bit more reading on Frienditto's legal policy. See my previous post. It's all so fascinating. Bear in mind that when I talk about copyright owner and archivist, I'm doing so on the hypothetical that they're two separate users.

6. Copyright infringement
The Service does not make any claim to copyright for any of the user entries submitted and will immediately remove any content with a proper request from the copyright owner. Users of the Service agree that at the time of submission they have proper permissions from the copyright owner. Frienditto does maintain copyright to all pages that it creates or generates, exclusive of the archived entry content.

Here's their statement that they will recognize an owner's copyright.

8. User Conduct
While using the Service, you agree not to engage in any criminal, threatening, harassing or indecent behavior. Violation of this clause may result in immediate termination of access.

How? How can you terminate access to someone that's completely anonymous, in the case of archiving public posts? In the case of someone who's archiving 'friend-locked' posts, you have their username and could try to blacklist them, but doing so would only be an incomplete termination of access to Frienditto, because they could still archive LiveJournal posts anonymously. Just not 'friend-locked' posts.

9. Violations and Grievances
To report any violations of this agreement or to file a grievance, please contact the administrator at legalthreats@frienditto.com. We will make every effort to get to your report or request in a timely fashion. Plz to be advised that any information sent to this email address other than legal threats will be ignored. Please do not make repeated submissions, as this will generally not expedite the handling of your report or request.

10. Correspondence with Frienditto
Should you choose to present your e-mail address, physical home address, telephone number, full name or other personally identifying information to Frienditto by any means whatsoever, we reserve the right to publish said personal information in whole or in part. Should you chose to contact any member of Frienditto.com by any communication means, Frienditto reserves the right to publish the conversation, in whole or in part, as seen fit to do so. Any and all e-mails may also be published in whole or in part. By communicating with Frienditto.com staff, you consent to said publication and acknowledge you have no expectation of privacy whatsoever under federal or state law for materials discussed and/or submitted. Legally privledged materials and communication, and/or communication concerning an active ongoing law enforcement investigation will be kept confidential as required by law.

God, I love my contracts teacher.

This, friends, is an unconscionable adhesion contract. Here, look: You can't contact Frienditto without consenting to this arrangement, so there's no real consent on your part. That's procedural unconscionability right there! And substantively, if you're reporting an infringement and requesting removal of material, you can't do so without more copyright infringement - the very problem you're contacting them trying to resolve. This policy is being used as a threat against copyright owners to keep them quiet out of fear of further infringement. In addition, there's no consideration being offered the copyright owner here - no benefit, as the infringement the owner is asking to have removed is in bad faith to begin with. Frienditto has already posited it as an obligation (and even if they didn't, it would be one, it against the law to infringe copyright); fulfilling a duty because you ask them to is not the same thing as offering an actual benefit to you.

Clever Girl

You know that bit in "Jurassic Park" where the big-game hunter guy (the one with the bush hat) is stalking the velociraptor only to find he's been stalked by the other velociraptors? He says, "clever girl".

This *is* clever. But not clever in a humans-going-to-get-eaten kind of way.

There's this blogging/journaling/what-have-you system called LiveJournal, much like Blogger in that it's offsite from the user, it's not something you install yourself and run on your own website. It has an interesting function that seems unique to blogging called 'friending'. If you friend someone, you can make posts to your LiveJournal that only *they* can read. So, LiveJournal has public posts and posts that your 'friends' have to log into LiveJournal themselves to see.

There's also this brand-new archiving system someone wrote called Frienditto, that lets you archive any public (non-friend-'locked') post on LiveJournal onto another server. Allegedly, it doesn't retain any information about the person doing the archiving, which seems pretty useless to me for people who want to mirror their own journals for redundancy purposes, because you can't find anything and you can't seem to search Frienditto entries by LiveJournal username or anything.

So, the point of this software, at first glance, seems to be to make it easy for people to make copies of OTHER LiveJournal user's posts to their LiveJournal.

The problem with that is that the author may not have given permission for their work to be copied on Frienditto, in which case the archivist has just infringed copyright.

The even bigger problem is that there's additional functionality that permits 'friends' to enter their LiveJournal username and password into Frienditto - a very stupid thing indeed for a LiveJournal user to do, from a security perspective - and the URL of one of *your* friend-'locked' posts, and archive *it*, making a quasi-private post ('friends'-only) in a semi-closed community (only LiveJournal users can 'friend' other LiveJournal users) completely public on another website.

Aye, *there's* the rub.

Now, then. Follow this:

1. Frienditto's TOS (the contract with their users) indemnifies themselves and places all responsibility (or tries to) on the user. That's the archivist, the person archiving a post onto Friendditto. Not the copyright owner, unless they happen to be one and the same.

Note, there's lots of stuff in contracts law about whether a boilerplate contract like this is enforceable. That's beside the point, as archivists who want to sue FD can't show they've been injured by FD, *because*,

2. The Frienditto software system destroys information about the archivist, from every archived post. Deliberately. Anonymity of the archivist is described as a core function of the software in the FAQ.

3. Their TOS and legal policy are only going to be read (if at all) by someone archiving posts. Not necessarily by the copyright holder. The copyright owner makes no agreements, implicit or explict, with Frienditto.

4. You as copyright holder don't know who to sue for copyright infringement.

This completely destroys accountability - you can't sue the archivist because you don't know who they are, and Frienditto will just say "oh, we're providing a service, it's the users who are violating your copyright". Which won't, in the long run, in my first-year-legal-scholar opinion, wash, for a couple reasons (and probably many more):

a. ISPs have consistently been responsible - or held responsible - for policing their users for copyright infringement, or at least violations of the TOS. Regardless of which of their users put something copyright-infringing up, an ISP will take it down once their attention is drawn to it.
b. If you took FD to court, I think you could argue that their software is, at its core, for the purpose of infringing copyright, and very little other purpose, if any (which is the kind of question they wrangle over in court about Napster and file-sharing and whatnot), and that FD knew or should've have known this use would occur, and did nothing to prevent it.


My bet is the velociraptor's going to go down on this one. Clever. But cute clever, not copyright-owners-are-screwed clever. 'Sides, their legal policy (http://www.frienditto.com/legal.php) says they'll honor a request from a copyright owner to remove material. I think everyone on LiveJournal should pre-emptively request that their material not by archived there.

Another Materialistic Moment

I want The Cocktailian Gazette.

A forum for mixology and barware scholars that's long been overdue, the first annual volume of Mixologist: The Journal of the American Cocktail (ISBN: 0-9760937-0-7)will come hot off the presses on March 21, 2005.

This just sounds cool.

(Thanks to Looka, for the tip.)

If America Is Richer, Why Are Its Families So Much Less Secure?

All this "we're America, the business frontier, where you make or break on your own merit" baloney is just that: baloney. (And I say that as a frontier gel mah ownself.)

If America Is Richer, Why Are Its Families So Much Less Secure?

Los Angeles Times reporter Peter G. Gosselin has spent the last year examining an American paradox: Why so many families report being financially less secure even as the nation has grown more prosperous. The answer lies in a quarter-century-long shift of economic risks from the broad shoulders of business and government to the backs of working families. Safety nets that once protected Americans from economic turbulence — safeguards like unemployment compensation and employer loyalty — have eroded or vanished. Familes are more vulnerable to sudden shifts in the economy than any time since the Great Depression. The result is a daunting "New Deal" for many working Americans — one that compels them to cope, largely on their own, with financial forces far beyond their control.