Balkin and the idiot Tushnet.

There is considerable agreement between Tushnet's arguments and the arguments I make in my own book on the cycles of constitutional time, which is out next month. That is not surprising. First, both Tushnet and I are working with the ideas of Yale political scientist Steven Skowronek about the cycle of political regimes in the United States. Tushnet has long been interested in regime theories-- his Harvard Foreword in 1999 offered a variation on these themes.

Second, both Tushnet and I think that the Reagan regime that has dominated American politics since the 1980s is on its last legs, and that the country is about to embark on something new. What that new thing is, however, is yet to be determined. That is why the book alternates between describing the constitutional commitments of an extended, Trumpist regime, and the possibility of a new progressive regime.

Third, both Tushnet and I also argue that how people feel about judicial review depends on where they are in the rise and fall of regimes.

NFS means No Fucking Shit.
Take me back to 2003:
Judicial Review, and the overlapping term, "pendulum"

The idiot Tushnet
And Balkin now has a tag. He should have been one of the first.
He's really turned into a putz; negotiating with the right from the passenger's seat, from originalism, to "information fiduciaries." Corporations are people. Monopoly is a fact. Assume a Gilded Age.

Information Fiduciaries and the First Amendment

Abstract 

Collection, analysis, and use of personal data increasingly affect everything we do in the information age, from our personal privacy to our opportunities for jobs, housing, travel, and health care. As algorithms for making decisions based on this data become more powerful, so too will the people and organizations who collect and use the data. Reformers will press for government regulation in the name of protecting personal privacy and preventing abuse and discrimination. In response, businesses that collect, analyze, use, distribute, and sell personal data will likely raise First Amendment defenses. It will only be natural for them to try to prevent what they regard as meddlesome and invasive government regulation by invoking the First Amendment - one of the most central of our constitutional liberties.

The First Amendment in the Second Gilded Age

Free Speech is a Triangle.  No, it's not.

David Pozen. A Skeptical View. The post comes with politesse puffery and a cute cartoon, but at least it lays out the obvious.

Balkin’s theory has been enormously influential. Scholars, advocates, and journalists have hailed it as a solution that can “make Facebook and Google behave” without crushing the tech industry. Mark Zuckerberg has sounded supportive notes. Lawmakers from both parties have expressed increasing interest; the Data Care Act would inscribe Balkin’s scholarship in the U.S. Code. The conventional wisdom, as Frank Pasquale expressed it in a recent essay, [updated link] is that the information-fiduciary proposal is not just a much-needed breakthrough but “hard to challenge.”

This Balkinization contributor dissents. Uneasy about the fiduciary turn that Balkin has inspired, Lina Khan and I have written an essay arguing that the information-fiduciary proposal is flawed—likely beyond repair—on conceptual, legal, and normative grounds. A first draft of our essay is available here.

Zuckerberg is supportive, as if that's a good sign.

Pasquale's essay is titled "Toward a Fourth Law of Robotics: Preserving Attribution, Responsibility, and Explainability in an Algorithmic Society"
Algorithms for management and profit. Technocracy is not democracy. And if democracy itself is a myth, then I don't want the ruling class made of of acolytes of Weber and Bentham, optimists and fantasists.

Dig the Asimov reference. Geeks.
Pasquale has a tag now too.

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Earlier, in April, on Facebook, Google, monopoly and free speech.

From Leiter of course. Nothing new.

Holberg prize faces criticism [archive.org]

The internationally recognised Norwegian scientist Jon Elster pronounced his criticism of this year‘s Holberg Prize winner Shmuel N. Eisenstadt in a lecture at the Norwegian Academy of Science and Letters last week. Elster is a member of the Collège de France in Paris, where he replaced the late Pierre Bourdieu. He is also a professor of social sciences at Columbia University in New York. In his lecture Elster argued that Norwegian researchers value politeness and their own prestige more that [sic] academic quality. Elster points to the 2004 and 2006 winners as a result of this.

The Norwegian 'scientist' Jon Elster is a political theorist, who wrote his dissertation on Marx. "Analytical" Marxism was left-wing Chicago School economics, and Leiter is on very good terms with Richard Posner.
It just doesn't stop. The Holberg Prize also covers theology. [The German definition of 'science']

Elster was once a hero to Henry Farrell, who wrote

...my mental model of Tyler [Cowen] often sit[s] on my shoulder while I blog, making polite and well reasoned libertarian criticisms of my arguments..."

"Science" even a few [5?] years ago could mean Social Darwinism.

For the idiot Bourdieu start here

Elster

"I nominated Thomas Schelling for the Holberg Prize. He did not win, but that is fine because he was awarded the Nobel Prize the year after. It is worse that the first winner, in 2004, was Julia Kristeva, a nototious [sic] French charlatan,"

I don't have to defend Kristeva to laugh.

On prestige, contra Elster, see Jason Stanley, again (I should give his family their own his own tag).

"In short, a university should seek to promote work that will give that university prestige..."

prestige |presˈtēZH, -ˈtēj| noun
widespread respect and admiration felt for someone or something on the basis of a perception of their achievements or quality: he experienced a tremendous increase in prestige following his victory.
• [ as modifier ] denoting something that arouses such respect or admiration: prestige wines.
ORIGIN mid 17th cent. (in the sense ‘illusion, conjuring trick’): from French, literally ‘illusion, glamour,’ from late Latin praestigium ‘illusion,’ from Latin praestigiae (plural) ‘conjuring tricks.’ The transference of meaning occurred by way of the sense ‘dazzling influence, glamour,’ at first depreciatory.

Stanley: "[prestige] in the future and not in the present."

So that's the out.  But who can predict the future?

Cabanne: "You defended di Chirico against the anathema of Breton and his friends, maintaining that, in the end, it is posterity who will decide. That preoccupation with posterity is a bit strange for you."
Duchamp: "No, it isn't. Posterity is a form of the spectator."
Cabanne: "The 'posthumous' spectator if one can say that."
Duchamp: "Certainly. It's the posthumous spectator, because the contemporary spectator is worthless, in my opinion. He is a minimum value..."

I'd agree that that rule applies less to geology.

I've made the following reference before but it's always stuck with me. This discussion of Daniel Dennett's Philosophical Lexicon is concerned largely with the relevance of the references and humor, and whether or not they're dated.  How would this discussion fit for a book of in-jokes about modern chemistry or physics?



Even Farrell understands, now, [Gambetta and Hertog] that we associate forms and values, but I won't begin to ask him about technology and Modernist utopia. Engineers have a history. [Pasquale, better. I'd forgotten it was him] Mathematicians tend towards Platonism, and Platonism makes for lousy politics. Even if Elster were a scientist in the way he believes, and in the way many economists still fantasize, that would only guarantee the reactionary nature of his political philosophy.

Elster was a member of the September Group which of course included G.A. Cohen. He does have his own tag.

[update: I'd forgotten that this was Pasquale.]
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People who focus on ideas prefer non-contradiction, but preference is preference. They elide conflict, they don't resolve it.

Frank Pasquale at Balkinization links to Danielle Citron at Concurring Opinions. [archive.org] The title of her post: "Only in Texas: the Grave Error of Using Literature Rather than Scientific Methodology to Assess Mental Retardation in a Capital Sentence Case"

My comments on her post, with a link to Jason Stanley.

The Mad Scientist is the central mythical demon of the 20th century.
Speech claiming to be science has justified more destruction than speech claiming only to be art.

An amusing parallel. For me the timing was perfect.

Perhaps philosophy has fallen into disfavor among humanists because philosophy has not been true to its roots. According to one sort of myth of this sort, traditional philosophers were commentators on culture. In the 1920s, philosophy was then ruined by the Logical Positivists, who created a new, dry, vision of philosophy. In their quest to declare the traditional questions of metaphysics meaningless, they divorced philosophy from the broader connections with culture and politics that give it life. The Positivists lost favor on the continent, and obtained posts in the barren intellectual wastelands of Chicago and New Haven, bringing their dry, logical methodology with them from Vienna. 

This story is false in every detail. Logical Positivists prized the deliverances of mathematics and science (as did Aristotle, Descartes, Leibniz, and Kant). But nothing follows about a lack of political and cultural presence. Core members of the Vienna Circle, such as Carnap, Feigl, and Neurath, all lectured at the Dessau Bauhaus. As Peter Galison has emphasized (“Aufbau/Bauhaus: Logical Positivism and Architectural Modernism,” Critical Inquiry, Vol. 16, No. 4), what united the Logical Positivists and the members of Bauhaus was a desire to create an alternative vision of social relations than the one promulgated by Volkisch thought – the intellectual representative of National Socialism.

The universalism of modern architecture was an illusion and its plans ended in failure.

I’m not defending an obscene decision any more than I would defend eugenics, but please, stop pretending like the author of the quote above, that philosophy and law do not concern values more than science.

For you and the idiot who posted at Balkinization, a piece on the humanities in society, here.

I've quoted the last link before.

Pasquale [some links removed]

Given Steinbeck's broader messages about social justice, I think he'd find this appropriation of his work deeply troubling. It reminds me of Balkin/Levinson's observations on law & humanities in this article:

Holmes was a notably well-read man, but we have little doubt that he would have scoffed at any idea that reading literature or engaging in the humanities would have the edificatory effect that Learned Hand seemed to advocate. He probably would have insisted that acquaintance with Homer and Shakespeare would not have changed what ambitious young lawyers in the Office of Legal Counsel wrote to please those in power. Even a torturer can love a sonnet. . . .

There are probably more than a few cultured persons among the Texas officials blocking the Medicaid expansion, or overheating its prisoners. The best that can be said for them is that they, like de Maistre's executioner, are integral to "bond[s] of human association" that rely on collective enthusiasms to impose harm on others.

I haven't read the Balkin and Levinson article. I will in the next day or so; it should be better than the piece by Jason Stanley. Reading all of them over the years it's clear Balkin and Levinson have something in common with Stanley's father. It's still a question how much they realize it.

The reference to de Maistre links to Corey Robin who quotes him. I adapt the quote, changing two words, in a comment on Robin's post.

"And yet all grandeur, all power, all subordination rests on the law: it is the horror and the bond of human association. Remove this incomprehensible agent from the world, and at that very moment order gives way to chaos, thrones topple, and society disappears."

All too true. The terror of the law is that it is impersonal. If it were to become subjective it would fall apart. Is the law objective? No. But I'm not here to explain to you the aporias of life, just that they exist.

"The ACLU is a conservative organization."
Spencer Coxe was director the the Philadelphia ACLU from 1952 to 1979. The ACLU defended the Nazis in Skokie out of a conservative's sense of pessimism. Liberals are optimists; the rule of law is conservative.

6 months ago your page looked like this. The search brought up my comments and nothing else. I see now you wrote something, about anti-semitism. That's progress I guess, but it doesn't make me an optimist, or a liberal.

From my comments again on the post at Concurring Opinions. The court's decision is obscene, but that's not the issue

How’d he score?”
“65″
“What the’ cut off?”
“64″
“Ok then. Gas chamber it is.”

And now we all can sleep at night.
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People now like to mistake ideas for values, or they think somehow values are merely the result. So what are the values that say that it’s fine to kill someone who tests two points above whatever line of measurement? Pasquale links to Corey Robin. Is your scientist any more human that de Maistre’s executioner? Is he any more passive before whatever authority gives him permission to kill?

Constitutional debate is debate over a the interpretation of a common text. It’s not that much different than a debate over the meaning of the Bible or any other work of fiction. That’s not science. The debate is how we come to an agreement over what we value as a group. Agreement is not truth.

...Ask people what they value and most start babbling incoherently.
Ph.D.'s do about as bad a job as anyone.
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I understand why a conservative layman would come to the decision as the judges have. I don’t agree with it as I also do not agree with the death penalty.
The bureaucratic language of the documents -cold, without affect- was depressing. If the author found him one notch higher he would have used the same language to sign off on his death.

The diagnosis and addendum [the second also below], and Marvin Wilson's letter asking for pen pals.

"I am Marvin Lee Wilson, I was born Jan. 5,1958 and just turned 46 years of age. I stand 5’11” tall and I weigh 198 pounds. I am of a creamy brown complexion with mitching[sic] brown eyes and I usually wear a nice smile whether I’m jolly or sad.

I enjoy reading, working out, trying to learn how to draw, playing chess and I love writing letters but they are not able to exchange as many letters as I need to keep me comfortably occupied, so I’m pretty lonely these days. I’ve been on death row ten years come May 4, 04, and I’ve been incarcerated 11 years and 2 months in all. I am from Beaumont, Texas, I am the second child of six, three boys and three girls and I thought someday I’d be a pro football player but I ended up dropping out of high school in my 11th year to work construction in order to help my sickly mother take care of the household, yes, daddy ran out on us for the outside woman and hers.

I then got involved in my very first relationship and it produced a son into my life. The weather was hindering my working and I begun to desperately look for an inside job or a job the rain couldn’t hinder so I could take care of my child and so I could get situated to marry his mother and become a good husband and father unlike my daddy. But it seemed most impossible for me to land a job in which I humbly looked for one whole year before I decided I have to do something and started working the streets..."

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Arguing with law professors comment removed
[all the comments are now stripped. I don't think I was arguing with Pasquale]

"Italian rules allowing candy makers including Nestle SA to label their products as “pure chocolate” breach European Union law, the region’s highest court said.

Permitting chocolate made from pure cocoa butter to be called “cioccolato puro,” or “pure chocolate,” clashes with EU-wide measures which allow chocolate laced with vegetable fats to be marketed as chocolate, the tribunal in Luxembourg said."

German roofers were under pressure from the EU a few years ago because in Germany you were not allowed to start your own company without 7 or 8 years of experience, and other countries were far less strict. But German roofers were considered the best in Europe. At the same time small batch cheese makers in Switzerland are under pressure now from industrial cheese manufacturers in Germany, who buy up all the milk.

Brad DeLong has come out in favor of cardboard tomatoes for the masses.

you have to either live in the countryside or live in the city and be really rich to say that rubber tomatoes suck. For those humans who live in the city and are not really rich, rubber tomatoes provide a welcome and tasty and affordable simulacrum of the tomato-eating experience.

The foundation of democracy is in citizens having and understanding conflicting interests: self-interest/fraternity, greed/pride, the obligations of a soldier/the obligations of a citizen [in a democracy those are opposed]. I know men who've sold for many millions, over decades,  to multimillionaires and billionaires, but who aren't more than millionaires themselves. For themselves, enough's enough. They're proud of what they sell. I was raised to know there's greed in the world. I was raised to think that greed is vulgar and a waste of time. Realism is realism concerning others; Yes? Were you raised to hold yourself to a higher standard? Maybe not. Neoliberalism says there is no higher standard, that non-contradictory law/contract is all there needs to be. [see: democracy, above]

And since you're linking to a discussion on your own page: Rawls was an idiot. The essence of law in a democracy is the practice of adversarialism: public argument. There is no "truth" beyond process. Philosophy is not foundational it's parasitic. But philosophy is foundational to neoliberalism.

I hope that answers your questions. Maybe now we can talk about democracy in Egypt and US support for kings, dictators and Israel. Zionism is racism (and liberal Zionism is an oxymoron).
Simple logic.

The Scientist

Instrumentalism and the national surveillance state. Frank Pasquale at Balkinization

Second, on a cultural level, there is a gradual melding of surveillance programs with a) what Daniel Callahan calls the "research imperative" and b) the rhetoric of war. Nobel Laureate Joshua Lederberg expressed the research imperative in its purest form when he said, "The blood of those who will die if biomedical research is not pursued will be upon the hands of those who don't do it." Privacy advocates will need to find equally pithy and dramatic encapsulations of their values if the research imperative is not to run roughshod over extant privacy rights.

[update: I've used this quote a few times since and had forgotten that I didn't insert the whole thing here.]
The full passage from Callahan.

Though unfamiliar to most scientists and the general public, the term expresses a cultural problem that caught my eye. It occurs in an article written by the late Protestant moral theologian Paul Ramsey in 1976 as part of a debate with a Jesuit theologian, Richard McCormick. McCormick argued that it ought to be morally acceptable to use children for nontherapeutic research, that is, for research with no direct benefit to the children themselves and in the absence of any informed consent. Referring to claims about the “necessity” of such research, Ramsey accused McCormick of falling prey to the “research imperative”, the view that the importance of research could overcome moral values.

That was the last time I heard of the phrase for many years, but it informs important arguments about research that have surfaces with increasing force of late. It captures, for instance, the essence of what Joshua Lederberg, a Nobel laureate for his work on genetics and president emeritus of Rockefeller University once remarked to me: “The blood of those who will die if biomedical research is not pursued will be upon the hands of those who don’t do it."

Anyone not employed directly or indirectly in maintaining or extending human life is a murderer. That includes astrophysicists, zookeepers, literature professors and architects not sworn to the service of utility. No more gardeners. No more violin lessons.

It’s War Communism in the war on disease. It’s Stalinism for the betterment of the race, and isn't that what Stalinism always was? Is that pithy enough for you, asshole? Productivism is anti-democratic and anti-social. It doesn’t matter what the product is. War as a model for general human organization has a name, it's called Fascism.

From the past

Science is the study of facts and philosophy the study of values. Conflating the two in favor of facts, values become assumed. Values assumed all questions are seen as those of expertise. Expertise as the goal terms of measurement are assumed. Curiosity is defined by the frame, values by the frame moral worth by the frame.

Democracy is undermined as a value and then as a goal.