Thursday, April 7, 2016

Election Law, Disenfranchisement Division

Legal scholarship constantly erects new specialties and sub-specialties. Physicists discover ever tinier sub-atomic particles and they tend to come paired with anti-particles. Law’s concern with particulars opens opportunities for anti-rules, loopholes, and safe avenues for subverting the norms implemented imperfectly by legislation. 

Thus, we see eminent scholars in the field of Election Law– Richard Hasen, Heather Gerkin, Nate Persily, et al, training experts in what can only be described as Disenfranchisement Law.  An outstanding contributor to his chosen field is the Kansan, K__ch. He has developed a model for selective exclusion of riff-raff from the body politic that commands insider admiration for its success in confusing the public and the press.

The K__h Plan begins with the raw material of public opinion. It is ridiculously easy to gather public support for laws requiring every voter to present a valid ID at the polling place on election day.  Quibbles about the bother are refuted by offering a free state-approved ID card to non-drivers. Nearly everyone who is polled on the merits of Voter ID shrugs. The casual citizen assumes all voters carry a Driver’s License or some other readily available photo ID that can be used to satisfy an ID requirement. 

Once enacted, voter ID laws provide powerful leverage for the  K__ch Police to inflate the Hassle Price (HP) paid by the poor, the convicted, and the itinerant. On slow news days, the press runs stories of decorated veterans, faithful grannies, and other sympathetic victims of the red-tape hurdles that must be cleared to satisfy registrars that the person standing before them is qualified to receive an ID in order to vote. The lines, hours, and venues for getting one’s papers in order amount to a pre-franchise franchise that is easily  manipulated to raise the HP for voting to a level well above the expense of a poll tax. Supporters of Voter ID are so confident of the validity of their measures that many of them openly admit that Voter ID’s ostensible rationale– prevention of impersonation fraud, and reinforcement of the sanctity of the ballot– is pretextual. These Republican laws are passed to impose high HP barriers around identifiable populations who vote Democratic.

The Democrats, the Press and some of the Judiciary think that they win when they demonstrate bad faith and self-dealing by legislatures who pass Voter ID laws.  Prove that the law is based on a pretext, that it solves a “problem” that doesn’t exist, and that it violates bedrock constitutional principles, and you have gained the day! Ko__ch however has a more cunning purpose in his campaign for Voter ID.  The beauty of the ID labyrinth is that it generates a cycle of non-compliance and escalating stringency. Misunderstandings of obscure and badly phrased regulations, under-staffing and under-funding of the electoral process, and all the other arts of bureaucratic sabotage provide a rich payoff in opportunities for undetected Selective Enforcement, from the get-go. Together, the elements of HP + SE guarantee low political participation by the poor and minorities. But wait! – there’s more! Voter ID has the bonus value of supplying actual instances of Voting “fraud”, at no extra cost. Thus, the fragile foundation of the scheme is overcome by its self-reinforcing feature. 

Officials who supervise elections, (call them the K__chs) can use post-election idle time to discover and publicize cases of “fraud” which they can use to “prove” a case for further “safeguards” of the “integrity” of the holy ritual of voting. The higher the HP,  the easier it becomes to defend Voter ID barriers against claims of constitutional misfeasance and partisan bad faith. 

Exam question:  A resident of KS registers to vote. On election day, she discovers she has mislaid her purse with all her ID cards inside. Remembering her “nostalgia file” from student days, she retrieves forged ID cards bearing her true name and address, but a false Date of Birth. She is not questioned when she presents her credentials at the polls, and her ballot is duly cast. Months later, she confides her adventure to a friend, who gossips about it to an aspiring young lawyer in the K__ch office. 

May K__ch, should K__ch, must K__ch initiate criminal proceedings for election fraud? May he count this as an(other) instance in support of sterner criminal measures? How should the jury be instructed? If you were a juror, could you in good conscience nullify the Voter ID law? 

Thursday, March 31, 2016

Parsing Toward Catastrophe

The deadlock between the Senate and President Obama over Judge Garland’s status contains the ingredients of a Grand Opera, or at least a splendid melodrama transcending previous Constitutional Law hypotheticals. This potential story won’t play out in real life, because characteristics that fit algorithms that comprise dossiers never identify persons with character. Instead we get role players–– prudent artisans, with proven ‘skill-sets’ practicing ancient crafts. Mitch McConnell (“the canny pol”) is one such, President Obama another, and Judge Garland yet another. Together they neatly represent the Trivia of Divided Powers so dear to our constitutional tradition.

Obama is always three or more moves ahead of his adversaries in the separated powers game. Mitch is always first off the mark, first to escalate, and the most intransigent. Garland is a competent listener who gets along in his contentious job without being contentious himself. Here is how high drama could result from plausible behaviors we might ascribe to more Carlylian figures in their circumstances.

Start with an Original Interpretation of the Script. Our text is Article II of the Constitution, more specifically its words, with the advice and consent…[of the Senate]. How can the Senate render anything properly termed “advice”, or withhold anything our founders or ourselves would deem “consent”, without first considering the person or proposition in question? If the Senate refuses to consider Judge Garland, we conclude that his nomination cannot ripen into an appointment, for lack of an explicit Constitutional Stipulation (or condition precedent): formal and express approval by the Senate. 

Our uncritical logic in this case may be faulty.Legal tradition defines consent as a verbal gesture affirmatively departing from a default state of objection, or non-consent. The analogy is to surgical procedures. Conscious and legally competent agents must be informed (= nomination) and then signify their acceptance of proposed violations of their bodily integrity, else tort liability will ensue. But if a patient is unconscious and in mortal danger, consent may be imputed. We can characterize the Garland stand-off as a case of awareness on the part of the Senate, together with a chosen condition of paralysis (unconscientiousness?) regarding unconsidered merits of the nominee. 

If we read the constitutional design (and the text) to assign responsibility for approval of a Supreme Court nominee to the Senate, then refusal to consider a nominee’s merits signifies unconsciousness (induced by toxic politics).That circumstance justifies ascription of  “consent” to the Senate. However, for such a serious matter, we must take precautions to assure that the intoxication precludes rational discharge of the Senate’s responsibilities. Obama should announce a reasonable deadline of say, 60 days, after which ‘consent’ will be imputed if the Senate remains legislatively mute. 

Act I of our opera opens with The Presidential Announcement. At the same time, vigorous political campaigns, in chorus, pursue the suggestion of Kar and Mazzone, that Senatorial intoxication results from a delusion: a belief on faith that democracy requires perpetual postponement. The People’s next vicar must always nominate, instead of their current curate, Obama. Unconstitutional delegation of a constitutional duty to an indeterminate future political outcome ends with an unresolved discord. The duty to advise and consent is non-delegable, according to the Original Intended Meaning of the scriptural text. Suppose Obama and the Democratic Presidential Nominee concur with this analysis, but Nominee Truze does not.  Act 2 features A Word to the Wise, from the Supreme Court to Mitch.

Through back channels, under cover of deepest deniability and utmost trust, John Roberts lets Mitch know that the Judicial branch agrees (for both practical and doctrinal reasons) that the 4-4 deadlock must end, now. Specifically, the Court threatens to seat Judge Garland on the basis of a Presidential warrant, duly engrossed by the Secretary of State. If challenged, they will find that the Senate consented through inaction. Incumbent Justices, grown weary of their impasse (and as personal friends of Judge Garland) might consider offering such unrecorded back-channel advice. Doing so might even be A Good Idea.  After all, Senatorial inaction put them to a hard choice. Each branch is sworn to understand and comply with the Constitution, so seating Justice Garland might be the soundest legal understanding of his status, were it not for the discomfort (or impropriety) of appearing to be a tribunal deciding its own cause. 

Act 3 centers on an aria sung by Garland, Do I Dare a Seat Impeach, in which he soliloquizes over whether his acceptance by the eight incumbents will trigger an impeachment trial, and whether he wants to go down in history as the Justice with an asterisk* beside his name, following Clarence Thomas. Will he be a swing vote? Will his presence cost the Court more political capital (legitimacy) than it has lost already through decisions like Citizens United and Shelby County v. Holder? How will it affect the Democratic Nominee? Our notional Justice Garland ends up leading a Parade to the Court, his Presidential Commission in hand, flanked by an entourage of senior members of the Senate, and the Vice-President of Untied States, with media coverage galore. 

Wednesday, March 16, 2016

A Parthian Oracle

The Arrow recently found himself in a swoon, overcome by the mephitic fumes that emanated from his television screen as its pixels resolved to form the ghostly, sulfur-haired image of a demonic demagogue. Before he regained his balance, Parthian was inspired to prophesy the next move in the demon's brilliant strategy to become President Obama's successor. The Oracle trumpeted as follows: "Ere his thousandth delegate be won, the Leader will endorse Justice, yea, and reprove them that would Refuse the Garland to the Anointed."

This could be construed in plain English to mean, "the Donald will signify his approval of the Garland appointment as a gesture aimed at the Moderate voter, and a warning to Mitch."

Parthian has now exhaled, returned to sobriety, and forsworn his oracular vision.But the season of madness generates such Goyesco nightmares in many fearful citizens.

Wednesday, March 2, 2016

Apple and Encryption

The council of elder Parthian worry-worts is troubled by the current debate over Apple’s efforts to assure the privacy of iPhone data. Respectable and thoughtful supporters of the FBI and the DOJ, some of them prominent in legal academia, see the issue as a relatively simple case of well-warranted search of a well-secured box containing data pertinent to public safety.  The Fourth Amendment provides adequate protection to Apple and to the security of myriad licensed users of Apple’s hardware and software. Defenders of the government have also imputed commercial motives, deceptive Public Relations manipulation, and massive hypocrisy to Apple’s management. The L.A. Times for example, points to Apple’s disparate treatment of privacy interests in China and the U.S.A.

Parthians wonder how iPhone users can assert their objections to the public policy question that will be resolved (doubtless in favor of the government) whether or not Apple’s resources are deployed on their behalf, given the resolute hostility of the Roberts Court to class actions. They also wonder if the problem is properly framed.

Is the San Bernardino iPhone really a safe, containing data, that has been equipped with a lock so strong that it cannot be opened without destroying its contents? Might it not be conceived (naively, perhaps) by Apple users as a prosthetic extension of their brains, and of minds that no longer depend exclusively upon pink head-flesh for storage of experience, fantasy, secrets, and the mystery of selfhood? If this perception of the hardware and software is generated by the experience of users, shouldn’t the law recognize that fact by adopting a different metaphor– the idea that extracting the digital record of contacts, emails, drafts, and other incidents of the user’s intimate life and public movements is a form of torture (at one remove from the infliction of bodily pain to make a witness sing)? Our legal tradition does not recognize a posthumous privilege against self-incrimination. Dead diarists leave only estates and sometimes, ineffectual imprecations, behind them.  

Yet the law might evolve through time or revolution to recognize that hardware can contain important aspects of our identity– indeed of our very concept of autonomous selfhood. A pocket-held device with 64 gigs of self-revelation can provide stronger doses of immortality than an epitaph or a tombstone. Values that became legally articulated in the form of our Fifth Amendment might extend beyond its current scope, to suggest that the security of individual citizens must be respected in this case by finding barriers stronger than either Fourth or Fifth Amendment doctrine currently provides. 

Thursday, February 11, 2016

Sanders, Trump, inequality and socialism

Another Presidential election year features a titanic clash between resurgent socialism and appeals for dictatorship with promises of the sort that served Mussolini so well. Reductive slogans reproduce endless tales about tax-and-spend, tree-hugging, nanny-state liberals, resisted by embattled frugal, prudent, budget-balancing, carpet-bombing, bible-thumping, gun-toting and flag-waving freedom-lovers. This discourse is tedious, familiar, and largely beside the point. The point, in this cycle, is growing resentment of diminished economic prospects by a rapidly increasing number of citizens who are demographically stratified in a way that divides families, while it crushes legions of credulous would-be rugged individualists who buy into Ayn Rand’s quaint political postures.

A synopsis of recent cultural history may better account for the sources of anger and militancy motivating Sanders and Trump’s supporters than do nebulous references to ‘economic forces’ and worldwide trade. Parthian’s undercover observers report a trend that is both older and deeper than its economic manifestations in the last few decades.

Trump’s imaginary wall can’t restrain a process of Latinization that might usefully be dated to the presidency of Nixon, although older roots certainly exist. Along with his general paranoia, Nixon was warped by a longing for grandiosity, triumphs, parades, and all-Hail to the Chief.  The Mexican element in California culture where Nixon was raised shaped phenomena as outwardly diverse as the Rose Parade, and the street and town names of his Yorba Linda youth. One of Nixon’s first gestures of self-aggrandizement in office, for example, was to propose ridiculous uniforms for his government attendants. He also gave us his Southern Strategy.

Nixon’s Golden State ethos was more effectively deployed by Reagan, but both presidents projected feelings of emancipation from the “Protestant Ethic” of frugality, piety, hard work, and tender religious consciences celebrated by Max Weber and once exemplified by the stingy shopkeeper mentality of Yankees and mid-westerners of the older GOP.  Beneath the rhetoric of lip-service to balanced budgets and the American Dream, the Grand Old Party evolved into the Grandiose, Otiose, Privileged party. The California-casual elitism of an essentially Mediterranean life-style fit nicely with the southern white tradition of Tara, honor, and pseudo-aristocracy. Kentucky colonels were amalgamated in the 1960’s with Mexican Dons, rancheros, and silver-spangled horsemen, to forge a new mentality.

Our turn toward aristocratic pretensions had culturally logical consequences. Lords require serfs. One needn’t look far to find signs of increasing paternalism, clientage and noblesse oblige. From the standpoint of the new ‘socialist’ generation, these phenomena are most salient with children who can’t afford to rent (slackers) and therefore remain at home “in the parents’ basement”. Laws like the ACA extend the age of minority for medical insurance purposes to age 26. Other piecemeal accommodations to foreclosed mobility will be promised, and slowly delivered, even by our stultified legislative process– and regardless of party. The importance of the extended family, for those who have one, is growing. Rich Uncles, or second cousins, or formerly outcast gays without children of their own, are once more welcomed as ever stronger social pressures erode some religious barriers, and reinforce others. We see strong incentives to adopt attitudes that help ease the descent to outright destitution. Tolerance, and membership in a large clan make decline gentler and longer than a Dickensian plunge. Chains of personal dependency are already promoted by the media under the guise of ‘self-sufficiency’ and family values

We can also see increasing dependency by members of the former ‘middle class’ upon legacy rather than merit– for college admissions, hiring, and other economic opportunities.  Clientage doesn’t sort well with ideals of autonomous and rational Republican Virtue as our enlightened founding generation conceived of their project. The remnants and shreds of ‘working hard’ for self and family must now retrace a well-worn path that was opened wide by the Supreme Court and Citizens United. By blessing political dependence (corruption just short of crass bribery) the Court assured an endless supply of dependable, revolving-door, subservient ‘elected’ lackeys. We see abundant evidence in our 2016 campaigns that oligarchical rule has forfeited the respect of the governed, whether their disgust takes the ideological form adopted by Sanders or Trump (or Tea Party) followers. 

Once again, our Mexican neighbors provide a model for our next phase of decline. Along with privatization of prisons, schools, armies, and other governmental functions, the Wisconsin model of union-bashing in the public sector is about to be extended to cover the entire nation.  A culture of pay-as-you-go government is sure to follow, beginning with the substitution of  ‘fees for service’ to fund services in lieu of demonized ‘taxes’.  Once the public adapts to that approach as the default manner of balancing budgets (as they have already done in places like Kansas), expect to see tacit endorsement or wink-and-nod toleration of the tip (for expedited attention, or a bump in the queue) as the obvious way to get one's share of deliberately limited and rationed services and facilities, both public and private. As demographic and economic forces diversify our population, we will import the developing world’s conventions and customs, including the mordida. There will be no further need for Trump’s wall.

PS– When will social theorists and field investigators connect lines graphing degrees of measurable public corruption with lines graphing degrees of economic inequality, provisions of social safety nets, high taxes, and other features of the Scandinavian model preached by Bernie Sanders? The more honest governments are found in societies which are not accidentally the more ‘socialist’ ones.

Monday, February 8, 2016

Prufrock's Little Brother Shops for a CCRC

Gone are the Days of Pizza & Jazz

Gone are my days of pizza and jazz:
Odalisques ignore my piteous call,
dissolute luxuries begin now to pall–
My levées show diminished pizzaz!

My lucubrations encroach on the dawn,
longer siestas now punctuate pages
where curiosity no longer rages–
Do I dare to dip my cocktail prawn?

Dessicated inhibitions yield, and sins
once considered worth the price
of Faustian bargains, and sacrifice
now cost nothing, not worth two pins.

Intimations of immorality suppose
a robust budding in some obscure cell
beyond what PSA assays foretell–
Delusions dispelled by clinical prose!

So farewell friends, fashions, and foes:
Yorick's shoulders shed wintry snows.

Friday, February 5, 2016

Profane Sonnet 7

Arise, arise, ye bright arrays of fMRIs!
Observe nomadic flareups shine & scatter: 
glucose convoys speed toward battle-cries,
front-lines locked in stalemate. No matter
how fast the quartermaster resupplies
sulci exhausted from academic chatter,
doubts throttle every tentative surmise:
June-bugs on careening windshields spatter.

Blow out the candles.  A residue remains:
prosciutto smeared across a sandwich slide
colored map-like by a fine variety of stains,
inedible of course, yet able to be classified–
a gaudy rainbow projected by a prism
smudges stucco with news of cataclysm.

Sunday, January 31, 2016

An Instance of Algorithmic Feudalism Analyzed

Your relator is a retiree with pharma coverage under a State health plan. Lucky me! But the humble gratitude I am expected to feel by virtue of my relative good fortune was rapidly dissipated once I began to use my benefit.  Stimulated by the proposals and examples of legal author (and Professor) Frank Pasquale, and other scholars in his generation, my experience suggests a need for more drastic and urgent attention to the economics of an emerging 21st C. economic regime of cyber-feudalism.

As a third party victim of a contract between CVS and the State, I am obliged to deal with a central CVS mail order pharmacy for ongoing refills of lifetime medications. Unlike the previous successful briber of the Governor (Express Scripts), CVS is chronically unable to refill ever-renewed requirements for slowly escalating dosages. CVS algorithmically knows when another bottle of pills is needed. That triggers a robo FAX to my physician’s back-office asking for a prescription renewal.  The robo-calling machine appears to be time zone-indifferent. Since my physician’s back-office lacks a robot or FAX machine, these nearly costless ‘contacts’ waste electricity and achieve nothing. The next costless step for CVS is a robo phone call to a possibly outdated number listed in their records for my physician’s office. Scrupulous records of this HIPAA-respecting rigmarole are cheaply stored in a CVS cyber-archive somewhere. Thus, virtual loops of red tape are generated algorithmically, at almost no cost to CVS.

The ‘failure’ of the physician to respond then triggers robo-calls to my home, with a script that interrogates the responding party until the robot concludes, following its programmer’s conception of HIPAA protocol, that it has indeed reached the very he who needs another bottle of …. [go find the empty or nearly empty bottle to see what it is ‘talking’ about] Rx #_ _ _ _ _ _ _ _ 0605. 

As a matter of culturally ineradicable intransigence, Parthian does not, and never will, deal with inanimate inquisitors, be they pollsters or entities with whom he has an involuntary business “relationship”.  After a certain number of hang-ups at the home end, the algorithmic robo-caller initiates costless (to CVS) pop-up messages that appear on home devices, interrupting the work or play at hand. The messages say that CVS has tried to help, and failed. There will be no more pills until the patient contacts his physician (whose fault it is, according to CVS) to get the refill authorization from her desk to cyber-CVS, pronto.

A call to the physician’s office, answered during normal clinical hours by a human receptionist, normally completes the cycle; but often enough, more than one call is necessary, because the back-office has moved again into lower-rent quarters, or because overworked clerks are busy.  About 15-20% of the time, an hour or more of patient time is taken up by a personal visit to the back-room prescription clerk du jour (turnover is high in the robo-wrangling business).

Such minute details have macro-economic implications. Let us examine the ledger:

  1. CVS sends an uninformative email. 
  2. Email interrupts work, requires look up of Rx
  3. CVS sends 2-4 robo calls at mealtimes with rigid ID queries
  4. 2-4 dinners interrupted, or robo voice-mail messages to review and eliminate.
  5. CVS begins pop-up barrage.
  6. 3-5 work/play interruptions.
  7. Final CVS robo call “It’s your problem now, sucker!”
  8. 1-5 additional work/play interruptions, in service to CVS.

The cost to CVS of their algorithmic offenses (odd-numbered lines) is in legal parlance, one peppercorn.

The cost to the modal patient (even-numbered lines) averages about six interruptions of ongoing work or leisure activity.  Valuing time spent dealing with CVS at the going rate, the bothers come to 3 ½ hours exclusive of blood-pressure and other endocrine or cardiac effects. At minimum wage rates, this comes to about $50. Add this to the co-pay of $7 to $20, and the true cost to the patient of the “benefit” is at least $60, most of it spent on vexatious waste. All this the labor is involuntary, and for sicker patients, may be impossible.

In an ideal regulatory regime, an ante-algorithmic norm would be respected. The cost would fall upon the “seller” of the pharmacommodity. Wholesale transfer of clerical cost overhead from seller to user (“buyer”) is a major economic force driving down costs to the seller, while convincing most of the victims that ‘efficiency’ is reflected by a lower co-pay and thus less out-of-pocket expense. After all, what is there better to do for people who are no longer active in the work force? And what better for CVS than invisible revenue from uncompensated work by customers drafted to toil on their behalf?

Sunday, January 24, 2016

A prologue in Rhyme to Poetry in Prose

While the Arrow and his pals knocked down beers at a local fern bar, the wives attended a matinée at the ART theater in Cambridge.
From their happy critique, it appears that they saw a series of prose poems presented in blackout fashion, following the seasons in small town Minnesota. Most of the scenes took place around a sauna and fishing shack on a frozen lake: Lake Wobegon almost meets Godot, with Mr Mark Rylance delivering a fine performance inspired by Fred Willard.

Because the audience was understandably predominantly females of a certain age, it was thought desirable to follow the electronic admonitions before the curtain rose with a spoken prologue, as follows:

The celebrated thespian, Mark Rylance
delights in episodes of vylance.
His deadpan, steadfast stage demeanor
limns character that’s edgier, and keener:
Audience! Let him play in reverential sylance!