Friday Review: The Half-Made World

We often talk of making the world over in our own image, but at the end of the day, the world is what it is.  Any transformation is mostly metaphorical and, on a cosmic scale, brief.  But what if the world itself was still in the process of being made?  And what if human expansion is what finally tamed it?  That's the background for The Half-Made World, an entertaining mix of steampunk, alternate history (sort of), and "weird" tales.

The eastern portion of The Half-Made World looks a bit like Europe or the eastern United States in the Victorian age.  Out west, over the mountains, is a country in the process of being settled, sort of equivalent to the American west of the same time period.But further west, beyond that, things get wild.  Part and parcel of that is a native population that is more in tune with the unmade world than the more "civilized" parts of it.

Our journey into this world comes with the aid of Liv, a practitioner of the budding field of psychology who, leaves her life in the east to work at a hospital on the edge of the settled west; Creedmore, the agent of one powerful faction who kidnaps her and one of her charges; and Lowry, commander of another power faction trying to track all down.

The factions are a pair of ruthless forces that are more ideology than physical things.  The Gun favors chaos and destruction, wrought through its agents who are controlled (to a greater or lesser extent) by demons that live in their firearms.  The Line, on the other hand, preaches mechanical progress (it's main instrument are engines, which appear to be sentient trains) and converts everything in its past to a world that sounds slightly like a predecessor to Terry Gilliam's Brazil (that the Line's commander is named Lowry is surely not a coincidence).

The Half-Made World has two things really going for it.  The first is the world in builds (so to speak), particularly the way it turns an age old order/chaos conflict into the running battle of the Line and the Gun.  There isn't much time spent on why each faction does what it does or where they come from - I kind of like the ambiguity.  Instead, the book focuses on how out west everyone's lives are controlled by their relationship to one of those two factions (ally, foe, or wary neutral).

I also wonder if the way the Line and the Gun are meant to be a metaphor for American anti-terrorism activities in the 21st century.  The Gun are the ultimate terrorists, causing damage and death for the heck of it.  The deeds are committed by scattered agents that number, perhaps, in the dozens, as opposed to a kind of formal militarized force.  The Line, on the other hand, is precisely that kind of militarized force, deploying a formidable array of clever weaponry that obliterates basically everything in its path.

Early on, as the Line is in pursuit of Creedmore before he arrives at the hospital, he winds up in a small town, Kloan.  When his identity is revealed a firefight ensues that leaves most of the town's prominent citizens dead and much of the town on fire.  In spite of all that, Creedmore escapes.  What's left behind is a town now under control of the line, one that was truly destroyed so it could be saved.  If that echo of our anti-terrorism policies abroad wasn't intended commentary, it's a hell of a coincidence.

The other thing The Half-Made World really has going for it is Creedmore.  He's the only of the three main characters who really stands out in your mind.T he Line commander is just a cog in a wheel, easily replaceable, which doesn't make for great characterization.  And Liv, while fully realized in her own right, just doesn't have a lot to do.  Creedmore, on the other hand, has a fascinating past - he fell into a life of crime only after trying just about every do-gooder organization in this world (abolitionists, advocates for the native "hill folk," religious groups, etc.).  But he's a good criminal, which is what attracted him to the Gun in the end.  But now, a long way down a life extended by the Gun's magic, Creedmore is having second thoughts about his master, with whom he has nearly constant running discussions.  I appreciate that the book presents all this as an ongoing matter and dodges the easy cliche of a "bad" man who turns "good."  Creedmore is much more interesting than that.

Unfortunately, there's an awful lot of chasing that doesn't add up to a whole lot.  The unmade part of the world isn't as interesting as the Line/Gun lands.  This shift about and are generally "weird," but not all that dangerous.  As someone else pointed out elsewhere, there's still air to breathe and food to eat.  Still, the chase comes to an end, so that means something, right?  Not really.  The great secret that all parties have been chasing is never explained, although it's hinted at.  More importantly, the main characters don't seem to have arrived at any sort of end point in their stories. The book ends like it's the first of a series, but although there is a second book set in this world it isn't a direct sequel.  So the lack of a hard ending is a big disappointment.

Not big enough to avoid recommending the book, however.  The world is inventive and it's worth spending time with Creedmore as the action spills out over the west.  That it might have been better doesn't stop it from being very very good.

The Details
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The Half-Made World
By Felix Gilman
Published 2010

Away Goals Are Not the Solution

When I first started really following soccer, back in college, that meant European soccer and, at the time, that mostly meant the UEFA Champions League.  The Champions League is sort of a European super league, involving top teams from all over Europe (although it is no longer, as the name implies, comprised soley of champions).  After a certain phase, the teams are drawn into the typical 16-team knockout bracket until we have a champion of Europe.

Unlike, say, the NFL playoffs, those knockout rounds are each two-legged: the teams play twice, once each at their home stadium, with the winner being determined by total goals scored.  It is, in essence, one 180-minute game with a week-long (or more) halftime.  So what if, after all that, things are tied up?  In order to avoid going to the dreaded PK shootout, UEFA will award the win to the team that scored the most goals away from home.

That is the "away goals rule," as used in Europe and elsewhere.  I'm not a big fan - I think it overestimates the difficulty of scoring on the road and, therefore, makes teams more cautious.  That being said, I recognize that for a competition where the teams aren't seeded according to some regular season results it at least makes some sense.  But where there is some ranking of teams heading into the knockout rounds, it really doesn't.

Since its inception, Major League Soccer has struggled to figure out a playoff structure that worked well, that captured the excitement of championships in other US sports while rewarding success in the regular season.  It initially went with the baseball/basketball/hockey setup of a best-of-X (3, in this case) series, but that necessitates winners and losers in each game, which can lead to some issues in soccer.

More recently, the league switched to a two-legged series similar to what the Champions League does, with the higher seed hosting the second game and, if necessary, the extra time and PKs in case of a tie.  Although it's produced some fantastic contests (such as the epic 2003 Earthquakes-Galaxy series or the 2012 DC United-New York Red Bulls series), it doesn't work all that well.  It doesn't provide the higher seed with much of an advantage, making the regular season nigh-on meaningless.  And, in the end, you can still have ties and PKs.

So now, with the new season just underway, MLS has announced that it will now tweak the system further by bringing in the away goals rule for the playoff series.  While this will no doubt cut down on the dreaded PKs, it doesn't really solve the problem of the league's long regular season being next to meaningless.  If anything, the away goals rule also means potentially fewer periods of extra time in the second leg, which is the only advantage a higher seed gets in the first place.

If MLS is serious about solving the playoff dilemma, it needs to look not to European football, but to good ole' fashioned American gridiron football.  The NFL has the best postseason of any American professional sport.  The playoffs last about a month, are super easy to follow (win or go home), and - as is particularly important here - rewards regular season achievement by allowing the higher seeds to host games.  Scrape into the NFL playoffs and you're on the road the whole way.  Cruise through the regular season and you get to stay home.  Not that upsets can't happen and do, but they feel more earned if the lower seed goes on the road and gets it done.

It would be easy for MLS to import that system.  Currently, 10 teams make it into the playoffs.  That gives you four rounds - it even kicks off with a wild-card kind of round, giving the top seeds a week's rest at the end of the season.  That round, by the way, is a one game winner takes all contest hosted by the higher seed.  Why not just carry that format forward for the rest of the playoffs?  No more midweek games that can't get on TV, no more cramped travel schedules.  Easy!  As a bonus, casual fans who might come across a game can get invested knowing that a result will occur that night - no need to wait for the second leg to see how things turn out.

I understand that part of the reason the league wanted multi-game series was to give each club an extra game to play, to fill the stadium and make some money.  But lots of those games, with short turnaround and poor scheduling, aren't played in front of full stadiums anyway.  Playoff games in front of empty seats don't look good for anybody.  And, at any rate, if the league's going to grow up and away from such concerns eventually, it might as well go ahead and do it.

A one-game playoff structure isn't perfect, either.  It increases the chances of games going to PKs, unless MLS did something truly original and forced the teams to play until there's actually a winner.  My personal theory is that if teams knew there was no way a game could end in a draw they would be more interested in trying to win it, rather than simply trying not to lose it and slide through to PKs, but I admit I have no data to back that up.  Still, even a PK-strewn playoff system would be better than the multi-legged confusion the league has now.

It's one thing for MLS to want to play like the rest of the world on the pitch.  But when it comes to how to structure the league, it needs to do what works best for its market.  The NFL has shown the value of a one-and-done playoff format.  Why reinvent the wheel?

Ghost Dope Strikes Again

A little while back I mentioned the concept of "ghost dope" in federal criminal cases, which is the relevant conduct that the Government tries to load on a defendant during sentencing.  I made a passing reference to the fact that evidence about ghost dope doesn't need to be presented to a jury (or, in fact, the judge in the case I was talking about) and can even be rejected by a jury.  A recent decision from the DC Circuit brings that part of the phenomenon into stark relief.

Doug Berman has the basics:

Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

In spite of the jury's verdict, the district court took all of that acquitted conduct into consideration at sentencing, imposing a 225-month sentence, near the statutory maximum for the single offense for which he was convicted.  Berman argues that recent Supreme Court decisions imperil the ability of judges to do just that - consider acquitted conduct at sentencing.  Over at The Volokh Conspiracy, Paul Cassell (himself a former district court judge) argues differently, that what happened to Ball is perfectly OK under existing law.

In terms of what the law is, I'm afraid Cassell is right.  Ball was convicted of a charge that carried a sentence of anywhere from zero to 20 years in prison.  Sentencing law (federal in particular, but most states work the same way so far as I know) is designed around providing the judge with all the information he could possibly want when making a decision about what sentence to impose.  As it exists now, it's hard to argue that some facts should be off limits because a jury failed to find they existed beyond a reasonable doubt, a higher standard than applies at sentencing.

However, in terms of what the law should be, Berman is on the right track.  Ask 10 people on the street if you could be sentenced to a longer prison term based on stuff a jury said you didn't do and most, if not all of them (assuming there were no lawyers in the sample), would say no.  It goes against something very fundamental to our criminal justice system to just ignore what the jury finds and move along.

The problem here is largely attributable to one person - Ruth Bader Ginsburg.  In 2005, the Supreme Court decided that the Sentencing Guidelines - mandatory at the time - violated the Sixth Amendment right to a jury trial because they forced judges to increase sentences based on facts found by the judge.  That was a 5-4 decision.  In the second half of that opinion - also a 5-4 opinion - the court remedied the problem by making the Guidelines advisory, rather than requiring the Government to prove all the sentencing facts beyond a reasonable doubt.  

Why blame Ginsburg?  Because she was the only justice in the majority in both decisions.  Not only that, she didn't write a separate opinion explaining her position.  As a result, we're left with a system designed by people who didn't think there was a problem with the system in the first place.  That's not a recipe for success, or at least one that makes sense to the general public and, more importantly, individual defendants.

I'll be the first one to admit that the legal system is complex enough that "lay people are confused by that" is not a good reason to do away with something.  On the other hand, when most of the public has a gut feeling that something is "wrong" in a moral sense with the way the law operates, it might be time to reconsider how its done.

UPDATE: Will Baude, also writing at Volokh, has a different angle on this case:

If appellate courts affirm a long sentence only because of the judge-found facts, then they are essentially creating a new common-law maximum sentence; they’re implying that a 19-year sentence for simple possession would be unreasonable, but that sentence for a massive conspiracy would be reasonable.

That means that there’s a maximum sentence imposed on the district judge from above, unless the judge finds a fact that justifies a higher sentence. This kind of imposition, Apprendi and Blakely and Booker said, was unconstitutional. It’s not the district judge’s decision to issue a long sentence that’s the problem; it’s the requirement that the judge justify that sentence using judge-found facts.

 That comes from a concurrence by Scalia and, while Baude is correct that the Supreme Court has not rejected Scalia's take, neither has it adopted it in a majority opinion. It's certainly an argument worth making, but it isn't a clear winner.

Some Truths About Cats & Dogs

I've mentioned before (I think) that I was not much of an animal lover before I met my wife.  But she came with a dog and two cats so something had to change, right?  Over the years we dated across state lines I became more of a critter person, but there's only so much you can learn about living with animals on the weekends.  Now after several months of sharing a house with all the critters (both cats still and now two dogs), certain things have become apparent.

For a reminder, the two cats are Kali:

and McNally:

They live in our sun room, which - to head off any angry letters - has heat and air conditioning, so they're not being left in the elements.  More critically for my observations is that, somehow, I have inherited the job of catering to their whims, i.e. feeding, watering, and litter box patrol.  Maybe this was somewhere in the vows when K and I got married, but if it was I don't remember it.

What I've learned performing that duty is that, in spite of having constant access to food and water, the cats, McNally in particular, are only comfortable eating in my presence.  In fact, McNally will sit at the kitchen door and meow like crazy for someone, for the love of gods, to please come see him, only to turn and make a beeline for the food bowl the moment you open the door.  Kali is more subtle about it, but tends to follow his lead.  Or maybe she puts him up to it?

If they can't eat without me, they can certainly, um, deposit while I'm absent.  Most of my litter box experience prior to last year came from attending to one of my in-law cats, Torrie, when her people went on vacation.  Torrie has the personality of a grumpy Vorlon bureaucrat on a bad day, but, to her credit, she has dainty litter box habits.  Our cats, not so much.  For one thing, they fling the litter all over the place, even though they have a very stylish Buckminster Fuller style domed litter contraption (so it's not a box, technically).  For another, there is no way two normal cats can produce as much stuff as I scoop out of said contraption every night.  My working theory is that they kill drifters (small ones), cut up their bodies, and bury the parts in the litter.  I only pray that my food, water, and scooping services will keep me on their good side.

Whatever the cats are up to, Maia definitely has figured out one of the oldest organized crime schemes, the protection racket.  You remember Maia:

When we first got Maia we rewarded her with a treat for going outside and doing her stuff.  Positive reinforcement and all that.  Good plan, except we never stopped the rewards once the behavior was established.  This was a bad idea, as Maia has now caught on to our scheme and has figured out how she might have many treats through the course of a day.

While we're at work, gone for hours, she's able to manage not to do anything inside (most days), but if one of is home or, heaven forbid, we both are home on the weekend?  She needs to pee every hour.  She does with this look on her face that's like, "nice wood floor you got here in the family room.  Shame if something happened to it."  In my head, it sounds almost exactly like this.  Maia has become a Mafia dog!

As for her sister, well, when we first got Uzume she had two fully functioning eyes.  Now, thanks to an infection she lost one altogether and the one she's got left just doesn't work anymore:

In spite of that, she knows when her picture is being taken, somehow.

When she went blind, we read about how animals who lose their sight will adapt to their surroundings, making a mental map of their little world to get around in.  Based on Uzu's experience, I'll quoth Opus and proclaim "that's a bunch of crapola."  At the very least, Uzu's cartographical skills aren't very good, as she continues to ram head first into walls, furniture, and whatever else might get in her way.

Or, maybe, she's just playing it smart.  After all, with our concerns about her concussing herself into oblivion, it means that Uzu pretty much gets picked up and carted anywhere she needs to go in our arms, as her privileged status demands.

Wait a second, I sense a trend here.  Have I been outsmarted by my critters?  Dammit!

Friday Review: Dying of the Light

If you only know George R.R. Martin thanks to Game of Thrones (and the Song of Ice and Fire books upon which it's based), you should know two things.

First, he is not your bitch.

Second, he wrote stuff before A Song of Ice and Fire, some of which was really pretty good.  When your debut novel is nominated for a Hugo award, you're no slouch.

Which is not to say there aren't some parts of Dying of the Light that sound a bit familiar all these years on.  It's set on Worlorn, a rogue planet that's spent about 60 years in a place where it was habitable.  As a result, it hosted a festival that became a kind of World's Fair on steroids for the neighboring planets, but, as the novel starts, the festival has ended and the world is growing slowly colder and colder.  That's right - winter is coming!  There's also a typical Martin focus on detail (what everybody's wearing, eating, etc.) that, at some point, goes from interesting background detail about the world into overkill.  Oh, and did I mention that one faction that comes to the fore in the second half of the book has a wolf's head as a sigil?  Only they ain't Starks.

Our hero (of sorts), Dirk, comes to Worlorn at the urging of an old lover, who may or may not need his help.  As a result, he's dropped into some first rate culture shock when he finds out that said lover, Gwen, is now married (after a fashion) to a guy, Jaan,  who is also in a long term relationship with another man (his "teyn"), Garse.  It's complicated, but Martin does a good job of fleshing out the culture of High Kavallar (where Jaan and Garse come from) and its honor-based economy.

The other thing Dirk finds himself in, of course, is the middle of a planet that's dying.  The most effective part of the book for me was the first third or so, during which Gwen shows Dirk around the planet, taking him to several of the different cites set up by the various cultures that participated in the festival.  Those include a still fully active (and sparsely inhabited) city run by computers and the haunting Crying Lamia, an entire city designed as a musical instrument played by the winds.  The music it makes is so melancholy that it drives people to suicide.  Kind of like Magma (kidding!).

This exploration also gives Martin a chance to dig into the rich relationship between Dirk and Gwen.  To say Dirk holds a torch for Gwen is putting it mildly, although it's not clear that she has any real affection for him.  She takes him to task for holding onto a memory of another version of her that he basically made up (and gave a different name - names are big in Dying of the Light), but isn't certain whether she's in a better position in these days than those.

I thought the second half of the book was less interesting, mainly because it turns into a standard (if well done) series of chases, double crosses, and reveals of middling effectiveness.  And as the running occurs there's an inordinate amount of Kavallar dick swinging that, along with everybody going by their full several-words-long name, gets old fast.  Martin wraps everything up by not really wrapping up anything, with an ending that is either cleverly open ended or downright maddening (you'll have to judge for itself).

It's worth keeping in mind that Dying of the Light, for all its charms, is a creature of its time.  As this review notes, Gwen is "more than a McGuffin but not much more."  She's the only woman in the novel and, although she's not merely a damsel in need of rescue, the book mostly revolves around how the men in her life scheme over her.

The Details
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Dying of the Light
By George R.R. Martin
Published 1977

Playing In A Rigged Game

When people talk about our Anglo-American justice system, in contrast to civil law systems around the world anyway, the word they most often use is "adversarial."  That is, it's based on the idea of two interested parties of relatively equal strength battling it out so as to allow the fact finder (be it judge or jury) to ferret out the truth.  That's as opposed to the inquisitorial system of continental Europe, which is driven by the judge herself.

It's a nice idea, but it very rarely works out that way in the real world, particularly when it comes to criminal justice.  Truth is, in terms of resources the prosecution and it's related agencies - state or federal - have much more power than most defendants.  Moreover, prosecutors often have the unfettered discretion of charging decisions, which can turn a minor controversy into a major prosecution.  In addition to all that, there's the simple fact that the rules of the game don't apply equally to both sides.

That's something I wrote about a long time ago on a blog far, far away.  But I'm motivated to write about it again thanks to a recent decision of the Fourth Circuit that really puts things into sharp relief.

The defendant in US v. Robinson pleaded guilty to several drug offenses, including conspiracy to distribute crack cocaine.  The case is not about his guilt, but about his punishment.  Under the US Sentencing Guidelines (which, while not mandatory are nonetheless given great weight) a sentence in drug cases is largely driven by the amount of drugs involved.  How much crack did Robinson admit to selling during his guilty plea?  It doesn't matter, because the Guidelines are based on "relevant conduct" - that is, everything you've done in relation to a particular crime, whether found by a jury or not.*

Relevant conduct often ranges far beyond the facts of the offense itself because it only has to be proven by a preponderance of the evidence, rather than beyond a reasonable doubt.  In the trade we even have a term for the drug weights that come out of nowhere following a conviction to bolster the relevant conduct finding.  We call it "ghost dope," for reasons that should become obvious.

When the presentence report came back in Robinson's case it attributed more than 1.4 kilograms of crack to him based entirely on statements from a witness named Battle.  Robinson objected, arguing that Battle had given conflicting stories in the past.  In addition, Battle had specifically said Robinson sold him PCP cigarettes during a particular period of time when Robinson was in another state.  In other words, Robinson argued that Battle wasn't reliable and his statements - nothing produced under oath, mind you - should be disregarded.

At sentencing the Government did not produce Battle to testify, even though it had notice that his reliability had been questioned and the Federal Rules of Criminal Procedure provide for such things to be hashed out at sentencing.  Instead, it argued that there were three other witnesses, also not present for the hearing, who could provide information that would make Robinson's situation even worse - i.e., attribute even more ghost dope to him.  Their statements somehow did not "make their way" to the probation officer who prepared the presentence report.
As I wrote over at the Fourth Circuit blog:

The district court presented Robinson with two alternatives.  First, it would conclude the sentencing that day 'with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence.'  Second, it would continue the hearing, 'unwind the whole thing,' and get a revised PSR that would include the Government's new witnesses.  Robinson chose to go ahead, after again asserting that Battle was not credible.

Robinson was sentenced to 140 months in prison.

On appeal, he renewed his argument that Battle wasn't credible and he should not have been attributed all the relevant conduct found by the district court.  This is a hard argument to make in the first place - it's a factual question, subject to a very deferential standard of review.  But in this case, the Fourth Circuit didn't even consider it, concluding instead that Robinson waived his right to challenge the relevant conduct determination by choosing to go forward at sentencing.

If something seems amiss about to you, you're right.  Judge Diaz, who dissented, pointed to why:

The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government. 

When Robinson objected to the PSR--before the hearing--the government was put on notice that its 'evidence' was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard.

Remember, the burden of proof is supposed to be on the prosecution.  One could argue that it's always better for the court to have more facts when it makes a decision, but that's not the way an adversarial system works.  The parties are - or, rather, should be - stuck with what they present to the court.  There shouldn't be do overs in order to achieve the "right" result.

I wonder sometimes if the fact that our criminal justice system is basically a game - one with high stakes, no doubt - doesn't hurt defendants who are caught up in and and truly guilty as charged.  It's easy in such circumstances to focus in on the game itself, the players, and how they're not following the rules, rather than your own culpability.  If we care at all about rehabilitation, that's probably a bad thing.

I suppose I'm guilty of that too, when it comes right down to it.  Like the song says, "it's just a game, and all I can do is play."  The least the powers that be can do is make sure the rules apply to all the players equally.

* In fact, even if a jury acquits you of a particular transaction, a court can still hold it against you at sentencing.  That's a topic for another day.

On Judicial Silence

Over the weekend, Jeffrey Toobin at The New Yorker wrote a column in which he repeated a fairly regular criticism of Clarence Thomas - that the justice's silence during oral arguments is the mark of some kind of intellectual or character flaw.  To Toobin, it indicates the Thomas isn't really invested in proceedings and isn't really doing the job right.  To me, this criticism doesn't make much sense.

For one thing, evidence seems to suggest otherwise, at least Ilya Somin's observations during an argument earlier this week:

For what it is worth, I saw nothing to support Toobin’s claim that Thomas is disengaged and “not paying attention” during oral arguments. During the course of the argument (which was on a relatively prosaic statutory interpretation case), I saw Thomas confer with liberal justice Stephen Breyer some three or four times, and with Justice Scalia once. I believe I also saw him look up some points in what seemed to be the joint appendix filed by the parties (or perhaps one of their briefs). Obviously, I could not overhear what Breyer and Thomas were saying. Perhaps they were discussing the weather or making plans for lunch. But the timing of their interactions make it likely that they were talking about issues raised in questions asked or about to be asked by Breyer, or one of the other justices.

As Somin points out, Thomas regularly talks with Breyer during arguments, so this doesn't seem to be out of the ordinary.

For another, Thomas has long had a consistent and reasoned, if flawed, explanation for his silence during oral arguments.  That is, he prefers to listen to what the advocates have to say, rather than interrupt them constantly.  As Somin points out, this is how oral arguments were in the good ole' days, much more a rhetorical event than a back and forth between the bench and the attorneys.

Where I disagree with some folks who have criticized Toobin, like Ed over at Dispatches from the Culture Wars, is in their claim that Thomas's approach is probably better:

Yes, let’s imagine if all nine justices behaved as Thomas does on the bench. The attorneys, who only get 30 minutes, might actually get to present their case without interruption. As it is, they often don’t get the first sentence out before someone, usually Scalia, is badgering them like a high school debater during cross-examination. Thomas is right about this. By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici. They already know how they’re going to vote and nothing said at oral argument is likely to change that.

As a somewhat experienced appellate advocate (not before Thomas and his brethren, alas), I do not want to return to the days of Daniel Webster and lawyer speechifying for oral arguments, largely because of the factors Ed points out.  By the time a case gets to oral argument, all that's really left is for the judges to ask questions of counsel.  Everybody's read the briefs, everbody's reviewed the record.  Briefs get filed in a particular order for a reason.  First whoever is taking the appeal files a brief, then the other party responds, then the first party gets to file a reply.  In other words, everything the parties can bring up should have been asked and answered before anybody steps into court.

Personally, I don't want an oral argument that's just 20 minutes of me waffling to the court.  I want judges to ask questions.  I want to know what's troubling them about my arguments and what they think is perhaps a winning point for the other side.  Questions at oral argument focus in on the meat of the case in a way that written submissions just can't.  If nothing else, judges can pin down lawyers who are trying to be slippery with the law, the facts, or both.

All of which is to say while I don't find Thomas's reasons for remaining silent compelling, I don't think they're a sign that he's unqualified to sit on the bench.

Besides, sometimes when you open your mouth all you do is put yourself in a world of hurt.  Ask some of my clients.

Judas Unrepentant Unmasked?

It took a while for Big Big Train's The Underfall Yard, released in 2009, to grow on me.  It's successor, English Electric Volume One still hasn't*, for whatever reason, with the exception of one track.  It's a song about something that always strikes me as fascinating - art forgery.

"Judas Unrepentant" is about a guy who forges art, but does it in a very clever way.  Rather that churn out reproductions of known classics, he has a different scheme:

Establishing provenance
Acquiring old frames with Christie's numbers
Then Pains a picture in the same style
Specializing in minor works by major artists

It's quite brilliant, actually.  Reminds me of a story I heard Rick Nielsen of Cheap Trick tell about their early days - where every other bar band played the radio hits by Zeppelin or The Who, they'd learn the B-sides nobody paid much attention to, so it sounded like original material (although they never passed it off that way).

I always wondered if the song was completely fictional or inspried by a real forger.  Last night, I think got the answer, thanks to a 60 Minutes piece on Wolfgang Beltracchi.  As the setup explains:

Wolfgang Beltracchi is a name you may never have heard before.  Very few people have. But his paintings have brought him millions and millions of dollars in a career that spanned nearly 40 years. They have made their way into museums, galleries, and private collections all over the world.  What makes him a story for us is that all his paintings are fakes. And what makes him an unusual forger is that he didn’t copy the paintings of great artists, but created new works which he imagined the artist might have painted or which might have gotten lost. Connoisseurs and dealers acknowledge that Beltracchi is the most successful art forger of our time -- perhaps of all time. Brilliant not only as a painter, but as a conman of epic proportions.

Now, the song is not Beltracchi's story.  For one thing, the song indicates that its hero wanted to get caught:

His time bombs are in place
And anachronisms
Clues pointing to the truth
If ever they are X-rayed

It's clear from the story that Beltracchi didn't want to get caught, which he did.  He was sentenced to six years in prison and his wife/codefendant to four.  As for how he got caught?

But then in 2010, he got busted by this tube of white paint. 

The Dutch manufacturer didn’t include on the tube that it contained traces of a pigment called titanium white. That form of titanium white wasn’t available when [Max] Ernst would have painted these works and Beltracchi’s high ride was over.

Which is interesting, because in the song, our hero:

Wrote legends in lead white
to trick the experts
And hoodwink the trained eye

Coincidence?  Could be.  But Beltrachhi's story must have been in the news in Europe sometimes before "Judas Unrepentant" was written, so it makes sense that one served as inspiration for the other.

One thing I will say for the song is that is provides something the 60 Minutes piece doesn't, which is answering why go through all trouble?  Beltracchi is a staggeringly talented guy.  Presumably he could have been a successful artist under his own name, so why all the fraud?  "Judas Unrepentant" has an answer:

He's painting revenge
Embittered by lack of success

* * * 

Expressing contempt
For greedy dealers
Getting rich
At the artist's expense

Revenge as the long con.  I like it, although it all comes to a tragic end, sadly.

I think what makes art forgets so interesting is that they tend to poke a finger in the eye of the art world, challenging its aesthetic bona fides and pointing out how, so often, people only care about the name attached to a work, not the work itself.  To that end, I applaud this collector:

This $7 million dollar fake Max Ernst is being shipped back to New York.  Its owner decided to keep it even after it had been exposed as a fake. He said it’s one of the best Max Ernsts he’s ever seen.

Because, in the end, the important thing shouldn't be whether the signature on the bottom makes your friends jealous, but whether the art moves you and makes you think about it.

* The similarly named English Electric by OMD, however, grabbed me right away, for what it's worth.

What's the Point of a Review?

My Friday Reviews are the descendant of one of the features of my original, hand crank operated, web page I had while I was in college and law school.  There I'd do reviews of just about every album I got, as part of a regular process of listening and figuring out what I thought about it.  I stopped doing those, largely because my reviews were winding up in one of two formats - gushing praise or harsh scorn.  If I didn't really "feel" one of those, I didn't even write up.  I'd like to think I do better now, but it's helpful to be able to pick and choose.

I bring all this up because of an interesting two-person article in the upcoming issue of the New York Time Sunday Book Review which asks the question, "do we really need negative book reviews?"

Now, as a struggling writer, I kind of like the idea of doing away with negative reviews. Who wants to see their work torn to shreds, after all?  But I'm not certain that would really be the best thing.

Francine Prose makes the case for not writing negative reviews.  It's pretty simple:

Even so, I stopped [writing negative reviews]. I began returning books I didn’t like to editors. I thought, Life is short, I’d rather spend my time urging people to read things I love. And writing a bad book didn’t seem like a crime deserving the sort of punitive public humiliation (witch-dunking, pillorying) that our Puritan forefathers so spiritedly administered.

From my reading of professional critics, that seems to be the best part of the job - when they find something in need of a champion, a book or film that won't reach a wider audience without some cheerleading.  It must be more rewarding that writing what shit the latest Transformers movie is or whatever.  So I see the point.

On the other hand, however, that seems a bit too touchy-feely, doesn't it?  To be fair, Prose (good name for a writer!) doesn't argue for lying about the quality of books, just not writing reviews of bad things at all.  Which, come to think about it, might be even worse - being ripped apart is one thing, being ignored quite another.

Zoe Heller makes the case for negative reviews and it is, as well, pretty simple:

most writers do not write merely, or even principally, to escape from or console themselves. They write for other people. They write to have an effect, to elicit a reaction. That is why they scrap and struggle, often for years, to have their work published. Being sentient creatures, they are often distressed by what critics have to say about their work. Yet they accept with varying degrees of resignation that they are not kindergartners bringing home their first potato prints for the admiration of their parents, but grown-ups who have chosen to present their work in the public arena. I know of no self-respecting authors who would ask to be given points for 'effort' or for the fact that they are going to die one day.

Part of being an artist, at least one who shares his work with other people, is the need to deal with criticism.  My father is a first rate grammar-Nazi.  I have him read my fiction, even though it's not the kind of thing he normally reads, because he will be precise and vicious with a red pen.  When my mother asked if I really wanted him to do that, I said, "because editors and agents will be kind and not point out those things?"  Being criticized is part and parcel of being a creative person.

Further, as Heller points out, reviews come with bylines and, hopefully, supporting argument as to whether a book is good or bad.  Real criticism goes miles beyond "it sucks" or even "it's great!"  Critics who are savage just for the fun of it won't garner a lot of respect or readers.

After all, as Prose admits, trying not to write a negative review is like trying not to eat too much at Thanksgiving.  You're bound to find something that rubs you the wrong way, doesn' work, and compels you to write about it.  Even if, as she also points out, in the end, nobody will really pay attention to what you have to say.

These days, when I write a review, I try to have something interesting to say about whatever the subject is. That's why there isn't a review posted every Friday.  Something's got to strike my fancy somehow, either by being brilliant or flawed, but I won't think twice about saying I think something sucks.  I just hope I have good enough reasons to make somebody else think, "yeah, all right."  Agreement, of course, is not required.

So I think the answer is yes, we do need negative book reviews.  Whether we need "bad" reviews is, of course, a completely different question.

Lawyering Au Natural

For most people it's hard to separate what lawyers do from where they do it - courtrooms.  Whether it's a trial court, with a jury box filled with a dozen regular folks who are going to decide someone's fate, or an appellate court where a panel of judges glower down from the bench at the lawyers making the argument, we've got a pretty good idea of where this kind of takes place.

It was not always such.  Over at the Legal History Blog, professor Bernard Hibbitts is blogging a bit about his teaching of the history of lawyers and lawyering to his students.  I found this entry particularly interesting, because it's about the ancient roots of the law in Greece and Rome.  As originally conceived, lawyering (such as it was at the time) was done in the outdoors, not just because they hadn't figure out a better place for it yet:

By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.

What's the one thing you think of when you think of modern court proceedings?  It's the quiet.  Nobody says or does anything unless it's part of the proceeding.  You don't jabber to your neighbor in the gallery, you don't talk on your cell phone.  Unless you're the judge, a witness, or a lawyer, you pretty much better keep your mouth shut, under pain of a contempt charge.  Quite a contrast.

So when did things move inside?  Blame the Romans.  More specifically, blame Julius Ceasar, who built a building just for the purpose of housing courts (modestly named after himself, of course):

Bringing lawyering inside, however, was arguably less an act of architecture as a product of politics. . . . Although the gods may have continued to look down on court proceedings from monuments in the Forum and perhaps even statues on the Basilica Julia itself, their gaze upon Roman justice was now by definition occluded. And who had occluded the sight of the gods? Roman leaders and emperors who now literally sought to confine, possess and discipline the ritual of public justice and the voices and processes of Roman advocacy (at the same time, by the way, as they increasingly claimed to be gods themselves, beginning with Divus Julius, the very builder of the Basilica). In the comparatively cramped space of the Basilica Julia there was literally less room for eloquence, less expanse in which to gather a crowd, less opportunity for advocates to potentially lever their public presence, their bodies and their commanding voices against power. After the death of Cicero, the Basilica Julia helped Rome's dictators ensure that no advocate like him would rise again.

Successive emperors built their own courts and thus, what Hibbitts calls "lawyering's most fundamental change of venue" was on.

Personally, I don't mind the move indoors - it was in the 20s when I was in Richmond last month, after all!  But I see Hibbitts's point.  Putting aside nonsense about gods, when you move justice inside you do hide it from public view, somewhat.  Sure, courts are generally open to anyone who wants to come and watch, but my experience is that, beyond students brought in specifically to observe, the public doesn't take advantage.

Part of that, no doubt, is because people are just too busy and, honestly, the day-to-day happenings in court are pretty boring.  But part of it might be also that going to court is like going to church - it's a sacred place with strict rules of behavior and uncomfortable seating, but with the added bonus of security theater to deal with.  Might more people take interest if they could just walk by and drop in on a case?  Chances are we won't ever know.

Top 10 Personally Influential Albums

A few weeks ago on Facebook my friend Robert Pashman (or 3rDegree fame - go buy their music!), put up a list of 10 progressive rock albums that had been particularly influential on him.  I liked the idea of such a list, one that's not "favorites" or "bests," but that had some kind of personal meaning.  Given that I'll always shamefully steal somebody's idea if it's a good one, here's my version of that list, slightly modified.  These are the ten prog albums that have been personally influential to me because of some particular door they opened or some such thing.  Since, as I said, this isn't a list of bests and, frequently, these aren't my favorites albums by these bands, I've added a note about those too, if they're different.

In chronological order of their release, not when I first heard them . . .

Genesis - Nursery Cryme (1971)

Having two older brothers meant I was exposed to a lot of music that was "too old" for me when I was a kid.  Without a doubt, the one that took the most was old Genesis, of which my brother Todd had all the Gabriel/Hackett era albums on LP.  I got into them all at various points, but I think this one was the first one that really hooked me.  Just look at that cover - how could that not lure in an impressionable elementary school kid?  Musically, it was the two story songs on side one - "The Musical Box" and "The Return of the Giant Hogweed" - that roped me in.  I didn't get it all, but I loved it.  Genesis, as a result, is probably my favorite band of all time - at least today.

Favorite album: Selling England by the Pound

PFM - Storia di un Minuto (1972)

Until I got to college I didn't know that prog spilled much beyond the borders of the UK (and Canada and the US, to a certain extent).  I certainly had no idea that there was a thriving prog scene in Italy in the 1970s and that was where some of the British bands (like Genesis) first gained some popularity.  Storia di un Minuto was my first foray into Itlian prog and any music at all that didn't come with English lyrics.  That was an important Rubicon (so to speak) to cross because, while I'd heard and enjoyed a lot of instrumental music, I didn't know if I could get into something with lyrics that I completely couldn't understand.  Turns out, not only can I get into something like that, I'd much rather (in most instances) hear lyrics in a foreign tongue as opposed to stilted, forced English.  It no doubt helped that PFM's style of symphonic prog is beautiful and spiced with just the right amount of jazzy embellishments.

Gentle Giant - Octopus (1972)

When I went to college and got on the Internet, I discovered two things about prog: (1) it was still a living, if much lesser, genre (to quote Zappa on jazz, "it's not dead, it just smells funny") and (2) there were a whole bunch of bands from the 1970s in the genre they I had never heard of before.  I think of these as "second tier" bands, not based on quality but because they never really broke out the way Yes, Pink Floyd, and the like did. Nevertheless, they were on major labels, toured regularly (sometimes even in the US), and generally had a good run.  One of the first of these bands I discovered and loved was Gentle Giant and, particularly, Octopus.  I'd never heard such a diverse collection of tunes before on one album that, nonetheless, sounded like they all belonged together.  Octopus taught me that there were hidden gems out there and that looking for them could be a lot of fun (and expensive!).

Yes - Yessongs (1973)

Being a child of the 1980s and 90s, by the time I was actually buying albums I did it on cassettes (briefly) or CD.  I still managed to get a few LPs, including this triple-LP live monument, complete with the big Roger Dean gatefold sleeve.  I got it on vacation one year when we visited my aunt who lived outside Philly.  I don't know what made it an appropriate souvenir, but hey, you buy stuff on vacation, so what the fuck?  Given what's included - all of Close to the Edge and most of the important bits from Fragile and The Yes Album - an argument could be made that it's the only Yes album anybody needs.  It's a losing argument, of course, but it could be made with a straight face.  You also get solo spots from most of the band, which for Rick Wakeman leads to belting out the Hallelujah Chorus on a Mellotron.  When I was a kid I had no idea how he did it - I knew about samplers, but in 1972? - but thought it was awesome and is part of why I fell in love with that instrument.

Favorite Album: Close to the Edge

King Crimson - USA (1975)

Occassionally I have found myself at odds with the prevailing prog zeitgeist.  One of those situations involved the last of King Crimson's many 1970s variants, the one based around the rhythm section of John Wetton and Bill Bruford.  I leaned more toward the Belew era stuff and didn't quite get all the fuss over Larks Tongues in Aspic or Starless and Bible Black.  That changed with USA, which is drawn from that version of the band's last tour (after which Krim, for neither the first nor last time, broke up).  It's a powerful, blistering set, during which Wetton and Bruford show who were really the bosses in that lineup.  The improv "Asubury Park" is funky and menacing all at the same time.  USA (which, in spite of being a live album, has some aftermarket studio adjustments) may not be the definitive live document for that Krim era, but it's the one that got to me.

Favorite Album: Red

Hatfield and the North - The Rotter's Club (1975)

One of the things I discovered when I found out about those second tier bands was that a whole subgenre of prog arose from one specific spot in England, the Canterbury area.  Though it's hard to pin down just what makes the "Canterbury sound," it's enough to say that most of the bands that came out of that area had a lighter touch than their symphonic cousins, dabbled in the jazzier side of things musically (I often think of Cantu bury prog as "rock guys playing jazz," while fusion is "jazz guys playing rock." Your mileage may vary.), and often had lyrical content of the surreal and absurdest type.  Hatfield and the North definitely had all that in spades and this album opened my ears to this kind of music.  It also introduced me to keyboard player Dave Stewart, an immense talent and wonderful writer (of music and prose).

Rush - Grace Under Pressure (1984)

I was a big Rush fan long before I started buying music for myself - one of those other few LPs I had was 2112 - and for a long time I thought they would be what prog was in the world going forward.  To that extent, Grace Under Pressure is the first Rush album I bought when it was new (on cassette!) and, so far as I can remember, the first new album I really looked forward to.  At a time when the 70s prog giants were in the process of "selling out," Rush still seemed to be in their own world, even if it was one that had been streamlined and polished since, say, Hemispheres.  Still one of my favorites.

Favorite Album:Moving Pictures

Marillion - Misplaced Childhood (1985)
As I said above, one of the things I discovered in college was that prog was not, in fact dead.  It had never really gone away, although it's commercial heyday was over just after I was born.  Nonetheless, I learned about a brief prog renaissance in the early 1980s and, in particular, of Marillion.  I'd actually heard of Marillion before - my brother had Misplaced Childhood on LP - but never actually heard them.  Misplaced, a highly polished concept album about - well, I'm still not quite sure (ask Fish) - was their commercial high water mark, producing a couple of European chart hits.  It is, perhaps, the definitive example of the early 80s phase called neo-prog.  More importantly to me, it was an entrance into the world of "new" prog that showed it had a lot to offer, as well as an introduction to a band that would quickly become a favorite of mine.
Favorite album: Marbles

echolyn - as the world (1995)
Prog didn't die in the 1970s, and even after the quick (commercial) rise and fall of neo-prog, the genre slouched along until the 1990s, when the Internet and easier CD production led to the explosion that continues today.  echolyn was a bit part of it, breaking through to have as the world released on a major label.  Hell, I found it just by browsing my local CD shop in Morgantown - no Internet orders, no Amazon searching, nothing!  Aside from that, this is one of those albums that I can remember listening to the first time, being completely blown away by the tight three-part harmonies and exquisite playing.  echolyn would become one of my favorites and a prime example that modern prog was alive and well.
Favorite Album: Mei

Mandrake Project - A Favor to the Muse (2006)

One of the cornerstones of the modern prog scene are festivals.  Held every year (hopefully), they bring anywhere from a few to a dozen bands together in one place over one weekend.  Not only are they a great place (sometimes the only place) to see favorite bands, they're also great for being blown away by some group you've never even heard before.  My first festival experience was the dearly departed 3RP festival outside Pittsburgh.  It's only fitting, then, that my first completely out of left field unknown find at a festival happened there and involved Pittsburgh's own Mandrake Project.  There's something special about having your mind blown by a band you knew nothing about before they took the stage.  I'm happy to say it's happened a couple other times since and, I suspect, will again in the future.

Finally, an honorable mention.  I left The Who's Tommy (1969) off this list because it's not really "prog," but it nonetheless had a big impact on my prog life.  It was the first album I was aware of that aimed to be something more than a collection of songs.  In other words, it was my first concept album.  That's not something that's only part of prog, but, as a genre, prog's embraced it pretty heavily.  The deaf, dumb, & blind boy helped launch me on this amazing journey.

Friday Review: Broadway the Hard Way

In 1988 Frank Zappa embarked on what would be his last tour.  He put together a big band, complete with a five-piece horn section and drilled it on dozens of songs, both reworked old favorites and new material.  Zappa mainstays like Ike Willis and Ed Mann were joined by newly minted stunt guitarist Mike Keneally.  Musically, the result was one of the best periods of Zappa's career, with argument being split as to whether this band or the mid-70s Roxy & Elsewhere band came out on top.

Sadly, the band fell apart, rather spectacularly, following stops in the eastern United States and Europe.  As a result, the 1998 band has an almost mystical quality to it, both because people wonder just what caused it to implode and the because it was, for many folks, the best band they never heard in their lives.

Thankfully, Zappa saw fit to record every stop on the tour (save one, due to technical difficulties) and, for a band with an aborted lifespan, it's ridiculously well documented.  During Zappa's lifetime he released three albums of material, with additional tracks showing up on some You Can't Do That On Stage Anymore collections.  Even more tracks have been released since Zappa's death.

The first of the three albums to be released was Broadway the Hard Way (also the name of the tour itself).  Originally an LP of almost all new material, it was expanded for its CD release with several reworked older tracks.  The new stuff is almost all political or socially satirical in nature  and will put off some folks.  However, the political stuff is bipartisan (Jesse Jackson gets smacked in "Rhymin' Man," along with the GOP in tracks like "When The Lie's So Big?" and "Jesus Thinks You're a Jerk") and some of the other stuff is good fun ("Elvis Has Just Left the Building," for instance).  There's also an appearance from "Mr. Sting" to perform "Murder By Numbers" and a ripping "Hot Plate Heaven at the Green Hotel."  Still, it's the least essential of the three because it's so bogged down in the era.

The two-disc The Best Band You Never Heard In Your Life featured more older material, although in radically different forms given the arsenal Zappa had at his disposal.  Good examples would be the run of One Size Fits All tunes on disc one.  It also features the highest quotient of Jimmy Swaggart related songs (he was a regular rhetorical punching bag throughout the tour), including "Swaggart Versions" of "More Trouble Every Day" and "Lonesome Cowboy Burt."  Finally, this release includes some bizarre cover versions, some recorded during sound checks, topped off by a version of "Stairway to Heaven" in which Zappa the guitar god lets the famous Jimmy Page solo be taken by  . . . the horn section.

The final release, also two discs, was Make a Jazz Noise Here, which is the most "serious" and "heavy" of these albums.  It's also the most essential.  It covers a lot of the more extended instrumental tracks, often laden with improvisation and Synclavier madness from various parties.  It's here where the band shines the most, as on the suite of old Mothers tunes stripped (for the most part) of vocals.  Check the uniform attacks from the horns and percussionist Ed Mann on "The Orange County Lumber Truck" and marvel.  Having said that, some of the pieces on disc one wander a bit.  However, disc two is probably my favorite hunk of Zappa ever released (except, maybe, depending on the day of the week and the barometric pressure, Roxy & Elsewhere).  All the songs are strong and they have enough structure to them to let you know where you are.  When things end with Zappa introducing the band at the end of "Strictly Genteel," it sounds like a perfect cap on the whole affair.

Speaking of the whole affair, what the fuck happened to this band, anyway?  The short answer is that a rift quickly developed between bass player Scott Thunes, also the "Clonemeister" (the guy responsible for rehearing in Zappa'a absence) for this tour and most of the rest of the band, particularly drummer Chad Wackerman and the horn section.  The long answer (although, honestly, there isn't much more to it) is laid out in Andrew Greenaway's recent book, Zappa the Hard Way.  Using extensive interviews (new and old) with most of those involved, Greenaway provides an interesting insight into the tour, the personalities involved, and how the whole thing fell apart.  It's not the most integrated work - Greenaway is prone to introducing a person and quoting whole paragraphs of the interview - but it's chock full of interesting anecdotes, not all of them focused on what went wrong (my personal favorite was the story of the night Mats & Morgan got to meet and play with Zappa).

One thing Greenaway gets right - because I agree with him! - is that Zappa was a bit of a hypocrite when it comes to these live albums.  In the liner notes to each, Zappa proudly explains that the music contained therein was all performed live and with no overdubs.  While that was true, it elides the fact that most of the tracks are stitched together from multiple performances, thus presenting performances that never really existed in the wild.  I've got no problem with that - it's a stunning technical achievement in some instances (over 20 in "Jesus Thinks You're a Jerk") - but don't get all holier than thou about it.

At the time the 1988 tour fell apart, nobody knew it was Zappa's last.  He made statement (both after and before) about being done with the rock band thing, but it's hard to say if he could have kept off the stage had he lived past 1993.  As a last hurrah, it's a shame it had to implode the way it did.  But it did leave behind an awful lot of excellent music for posterity.

The Details:
--------------------------
Broadway the Hard Way, by Frank Zappa
Released 1998

Tracks:
1. Elvis Has Just Left the Building (2:24)
2. Planet Of The Baritone Women (2:48)
3. Any Kind Of Pain (5:42)
4. Dickie's Such An Asshole (5:45)
5. When The Lie's So Big (3:38)
6. Rhymin' Man (3:50)
7. Promiscuous (2:02)
8. The Untouchables (2:26)
9. Why Don't You Like Me? (2:57)
10. Bacon Fat (1:29)
11. Stolen Moments (2:57)
12. Murder By Numbers (5:37)
13. Jezebel Boy (2:27)
14. Outside Now (7:49)
15. Hot Plate Heaven at the Green Hotel (6:40)
16. What Kind Of Girl? (3:17)
17. Jesus Thinks You're A Jerk (9:15)

The Best Band You Never Heard In Your Life, by Frank Zappa
Released 1991

Tracks:
Disc one
1. Heavy Duty Judy (6:04)
2. Ring Of Fire (2:00)
3. Cosmik Debris (4:32)
4. Find Her Finer (2:42)
5. Who Needs The Peace Corps? (2:40)
6. I Left My Heart In San Francisco (0:36)
7. Zomby Woof (5:41)
8. Bolero (5:19)
9. Zoot Allures (7:07)
10. Mr. Green Genes (3:40)
11. Florentine Pogen (7:11)
12. Andy (5:51)
13. Inca Roads (8:19)
14. Sofa # 1 (2:49)

Disc two
1. Purple Haze (2:27)
2. Sunshine Of Your Love (2:30)
3. Let's Move To Cleveland (5:51)
4. When Irish Eyes Are Smiling (0:46)
5. "God Father Part II" Theme (0:30)
6. A Few Moments With Brother A.West (4:00)
7. The Torture Never Stops (Part One) (5:19)
8. Theme From "Bonanza" (0:28)
9. Lonesome Cowboy Burt (Swaggart version) (4:54)
10. The Torture Never Stops (Part Two) (10:47)
11. More Trouble Everyday (Swaggart Version) (5:28)
12. Penguin In Bondage (Swaggart Version) (5:05)
13. The Eric Dolphy Memorial Barbecue (9:18)
14. Stairway To Heaven (9:19)

Make A Jazz Noise Here, by Frank Zappa
Released 1991

Tracks:
Disc one
1. Stinkfoot (7:40)
2. When Yuppies Go To Hell (14:36)
3. Fire and Chains (3:57)
4. Let's Make The Water Turn Black (1:36)
5. Harry, You're A Beast (0:47)
6. The Orange County Lumber Truck (0:42)
7. Oh No (4:43)
8. Theme From Lumpy Gravy (1:12)
9. Eat That Question (1:55)
10. Black Napkins (6:56)
11. Big Swifty (11:13)
12. King Kong (13:11)
13. Stars Won't Work (3:33)

Disc two
1. The Black Page (New Age Version) (6:45)
2. T'Mershi Duween (1:42)
3. Dupree's Paradise (8:35)
4. City Of Tiny Lights (8:01)
5. Royal March From L'Histoire Du Soldat (1:00)
6. Theme From The Bartok Piano Concerto #3 (3:43)
7. Sinister Footwear 2nd Mov. (6:19)
8. Stevie's Spanking (4:26)
9. Alien Orifice (4:15)
10. Cruisin' For Burgers (8:28)
11. Advance Romance (7:43)
12. Strictly Genteel (5:37)

Players for all:
Frank Zappa (lead guitar, synth, vocal)
Ike Willis (rhythm guitar, synth, vocals)
Mike Keneally (rhythm guitar, synth, vocals)
Bobby Martin (keyboards, vocal)
Ed Mann (vibes, marimba, electronic percussion)
Walt Fowler (trumpet, flugel horn, synth)
Bruce Fowler (trombone)
Paul Carman (alto saxophone, soprano saxophone, baritone saxophone)
Albert Wing (tenor saxophone)
Kurt McGettrick (baritone saxophone, contrabass clarinet)
Scott Thunes (electric bass, MiniMoog)
Chad Wackerman (drums, electronic percussion)

Zappa the Hard Way, by Andrew Greenaway
Published 2011

A New Look Prison for a New Approach?

Most of the time when I write about prisons, it's about the desire of the United States to have fewer of them.  That being said, we're not likely to go the route of Sweden and start closing prisons anytime soon.  To the contrary, between replacing aged structures and the popular job project that is rural prison building, we're likely to be having pen raisin's for some time to come.

Which is what makes this proposal so intriguing (via).  It's from an architecture student at Harvard who has plans for a new concept prison-plus called PriSchool.  Rather than being built in the sticks, would be built right downtown:

PriSchool is designed precisely for those non-violent offenders who struggle to stay on the right side of the law when released. Situated in a Brooklyn neighborhood surrounded by “million dollar blocks” – city blocks with such high crime that the state is spending over a million dollars a year to incarcerate their residents – the prison/school hybrid rethinks what a prison can achieve, positing it as a place where prisoners and students can learn from each other, and where criminals can be rehabilitated in preparation for their return to society.

It would be a complex of four linked buildings - the prison itself, a school of criminology, a 'pre-release building' (something like a halfway house, I'm assuming), and a community center.  Take a look at some of the pictures here. 

It's awfully cool looking concept, if nothing else.  It also shows the kind of approach that might lead to long term solutions, if it can overcome short term objections.  Some folks, no doubt, will not want a prison or any kind plopped down in the middle of their neighborhood (although rural communities tend to welcome the jobs).  And others, unfortunately, are too caught up in the idea that convicts need to be punished and nothing else, regardless of the fact that most people in prison will get out someday.

I'm not certain that the problems of our incarceration nation can be solved by architecture, but I'm willing to give it a shot.

Friday Review: Bright-Sided

My favorite current comic strip is Pearls Before Swine.  Part of why it appeals to me is that I see the two main characters, Pig and Rat, as the dueling sides of my own personality (see also, Van der Graff Generator's "Man-Erg").  Pig is sunny, trusting, gullible, and generally simple minded.  Rat is a cynic, a curmudgeon, and thinks the best character for a childrens' book series is a frequently drunk, homicidal donkey.  You get the picture.  I mention that because, while reading/listening to Bright-Sided, I kept wondering about how Pig and Rat would react to a "positive thinking" sales pitch.  Undoubtedly, Pig would gleefully embrace the power of positive thinking.  Rat, by contrast, would beat it into a coma with a tennis racket.

Barbara Ehrenreich would probably help Rat by holding positive thinking down.  In Bright-Sided she catalogs how the idea that good thoughts can manifest good outcomes in the world around us has infiltrated just about every facet of modern American life.  She begins with the world of breast cancer, with which she was diagnosed in 2000.  She was appalled by the amount of ink spilt not only on the idea that one must have a positive attitude toward treatment in order to survive, but that in many quarters suffers are encouraged to see breast cancer as a "gift" that actually changes their lives for the better.  Ehrenreich traces such counter-factual positive thinking through modern business, religion, academics, and financial sectors.  It is, she argues, largely responsible for the financial meltdown of 2007.

Ehrenreich also goes back in time a bit to figure out where this aversion to reality came from.  Oddly enough, she traces it back to another aversion from reality - religion.  Specifically, Ehrenreich argues that what we think of today as the "positive thinking" movement began as a reaction to the particularly harsh, judgmental 19th Century form of American Calvinism.  In a world shaped by a view that your salvation (or, more likely, lack thereof) was preordained, a contrary voice saying you had more power to shape your own destiny than you ever knew was compelling.  The result was the New Thought movement, out of which sprang things like Christian Science and the Unity movement.

One irony of the positive thinking movement is that, although it began as a reaction to a particular strain of Christianity, it was eventually adopted by a wholly different one - the "prosperity gospel" megachurches.  Ehrenreich delves into that as well - particularly focusing on the church of Joel Osteen - and we see the self-affirmation and "imagine it and you can have it" morphed into "pray hard enough and God will provide it."  Same shit, different container, as they say.

To be honest, I've never given positive thinking, or its more recent commercial versions like The Secret much thought.  It's woo, of course, but largely harmless woo, right?  Ehrenreich convinced me otherwise.  Aside from the basic truth that someone who thinks they can mould reality to their will is going to be seriously disappointed eventually (perhaps in disastrous ways - see the financial meltdown), Ehrenreich also went into how the push to think positively helps obscure injustice in the world.  This particularly came through in her discussion of positive thinking as it invaded business practices during the 1980s, particularly when it comes to downsizing.  Why be angry at a political or economic system that just made you unemployed after years of work for a company when, if you think it hard enough, you can see it as an exciting new opportunity to change your life?  Likewise, why should the cancer patient rail against the inequality of living in the only civilized country on Earth without national healthcare when you can discover personal growth through the arduous (and expensive) process of mere survival?  In the end, all gurus sound like Pangloss, preaching about how this is the best of all possible worlds.

Having said that, there's a sense that Ehrenreich is only going after low hanging fruit.  It's easy to point and laugh at people who think they'll get a new Mercedes just by thinking hard enough about it.  The folks that peddle that nonsense are cranks of the first order.  Wealthy cranks, but cranks nonetheless.  But Ehrenreich doesn't really investigate where positive yet still realistic thinking might be helpful in certain circumstances.  To use a personal example, I wouldn't keep writing and working on fiction to try and get it published if I didn't have a little bit of "I know I can do this" running round in my head (confession time - I occasionally daydream about what my Wikipedia entry will eventually say).  That being said, I don't sit back and think I'll get published and be a successful author just by visualizing it.  I know there's a lot of work still to be done and lots of things I need to learn.  But if I didn't have some positive outlook on the whole process, why would I stick with it?

Which is to say, Ehrenreich's book isn't going to sway a lot of people away from the power of positive thinking.  She's largely preaching to the skeptical choir.  Nor does she really make any attempt to understand the allure of positive thinking to those who support the industry by buying books and DVDs and attending seminars devoted to it.  Sure, the stuff about the Osteens had its place, but what about those in the congregation who come back Sunday after Sunday?  It's too easy (and condescending) to dismiss them all as idiots and be done with it.

What Bright-Sided has going for it is that it's a fun read and, in many spots, an interesting one.  However, it falls short of really proving how positive thinking undermined America.

The Details
------------------------
Bright-Sided: How The Relentless Promotion of Positive Thinking Has Undermining America
By Barbara Ehrenreich
Published 2010

Avoid Woodbridge, Illinois (Or Pay the Price)

Let's just get right down to it.  If you are arrested in the Village of Woodbridge, Illinois, you will be billed for the pleasure.  You will be separated from $30, regardless of whether you are eventually convicted of the crime for which you were arrested.  There is no procedure in place to challenge the fee or have it reimbursed.

If you think that's outrageous, you're right.  What's even more outrageous is that the Seventh Circuit just blessed it (via).

Here's how the scheme works - if you are arrested for committing a crime in Woodbridge, you will be charged $30 when brought to the police station for booking.

That's it!  Doesn't matter if the cops arrested the wrong guy or lacked probable cause to make an arrest or were out to score vengeance against the guy who slept with his wife.  Guilt or innocence is irrelevant.  If you're booked by the Woodbridge police, you will be billed for the pleasure.

Jerry Markadonatos challenged this practice after he was arrested and then participated in a diversionary program that left him with the equivalent of a not-guilty verdict.  Seems like a due process slam dunk, right?  Generally, if the government is going to take your property, they've got to provide some procedure by which you can fight it.  The Woodbridge fee is a binary, no discretion rule - get arrested, pay $30.

Amazingly, for two of the judges on the Seventh Circuit panel, this was the program's saving grace.  For one of the things to consider in a due process challenge is the chance of an erroneous deprivation of property which, in the case of Woodbridge, the court concluded is "non-existent":

Under the scheme, every person who is arrested is charged the booking fee, regardless of whether they were arrested without probable cause. Thus, a Woodridge employee determining whether to charge the booking fee is presented with a binary choice: 'yes' the booking fee must be charged to a person who has been arrested and is being booked by the Village; or 'no' the booking fee must not be charged to a person who has not been arrested and is not being booked by the Village. This determination is made all the easier by the fact that the booking fee is collected only upon an individual’s arrest and booking. Thus, the Court cannot envision any situation in which one who has not been arrested is charged the booking fee. That is, it is only when one is arrested and booked that the collection of the fee occurs, thus making the potential for erroneous deprivation practically non-existent.

In other words, because the bureaucratic drone presented by a cop with a freshly arrested person has no authority to question the arrest, there's no risk of an erroneous deprivation of that person's property.

Yes, that's as loopy as it sounds, but it gets even worse:

Mr. Markadonatos was arrested and later appeared before a judge. Thus, if he believed that he was not or should not have actually been arrested, he had the opportunity to alert both the arresting officer and the judge hearing his case of that fact. While neither of these opportunities is formally provided for in the statute, they are more than sufficient to safeguard against an erroneous deprivation that will practically never occur.

Seriously?  Let's take the second option first - have you ever appeared before a judge and asked him or her to do something that's not within their power?  It doesn't make them happy.  That hardly seems like a reasonable option.  As for arguing with a cop, that's a good way not only to be loaded down with further charges (and, presumably, $30 fees) but wind up beaten, tazed, or shot.  Arguing with a cop, even if you're in the right, almost never ends well.

On top of that, the court concludes that the village has a legitimate interest in collecting this some kind of user fee, to help defray the cost of them deciding to arrest you.

Judge Hamilton dissents from this decision and lays out why it's ludicrous in the first paragraph:

This should be a simple case. The village’s 'booking fee' ordinance is unconstitutional
on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and
finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law. The fee is in substance a criminal fine, modest but a fine nonetheless, and it is imposed regardless of the validity of the arrest and regardless of whether there is any criminal prosecution or what its outcome might be.

He also points out the absurdity of the court's "no risk of erroneous deprivation" conclusion:

the risk of erroneous deprivation is in fact very substantial. The pivotal decision that imposes the deprivation is a lone police officer’s decision to arrest. A lone police officer’s decision is subject to judicial review even when she writes a mere speeding ticket, let alone imposes a criminal fine. Many people who are arrested are not even charged with crimes, and many charges result in either dismissal or acquittal, so that as many as 30 percent and perhaps nearly 50 percent of arrestees may pay the fee without any criminal conviction.

In the end, the most difficult thing for Judge Hamilton is whether the scheme is more Orwellian or like something out of Lewis Carroll.  Both, is what he concludes.

As for the "user fee" concept, he points out that cases involving user fees all arise when someone voluntarily takes advantage of some service, like crossing a toll bridge.  Being arrested is not, except in some truly rare circumstances, a thing done voluntarily:

During oral argument, the village tried to justify this user fee theory by explaining that a person arrested by mistake would still properly owe the fee because he would have
benefitted from the “services” of being photographed and fingerprinted. That argument surely qualifies as Orwellian.

Indeed.  Regular readers know that one of my pet peeves is states locking people up on the cheap.  If you want to deprive people of their liberty, you have to pay for it.

So, a bit of advice as you're making vacation plans for the summer - avoid the village of Woodbridge, Illinois.  If they've got nobody to arrest, they've got no need to raise funds, right?