Posted by: Patrick Allen Foster | October 25, 2013

Friday Link Compendium

1. With one year to go until the referendum on Scottish independence, the chances for the Yes side (i.e., the side seeking to separate Scotland from the United Kingdom) look dim: “A year away from the Scottish referendum, we have opinion polls almost weekly, as the media tries to discern the rise and fall in the standings of the rival teams. Yet the most striking fact is the stability in public opinion. For the past 20 years, support for independence has been around 30% and all the argument over the past two years appears to have made little difference.”

Hat tip to Steve Saideman, who comments: “given how easy it is for the No folks to make it clear that a big political change has uncertainty and likely costs, and how hard it is for the Yes folks to make clear the benefits of secession, I would bet on No. I would also bet on this not going away, as the losers are likely to try again. At least, that is what I learned from Quebec.”

2. The New York Times has this story about authors who agree to Chinese censors’ editing of their books in order to tap into Chinese markets. An excerpt:

Chinese readers of Ezra F. Vogel’s sprawling biography of China’s reformist leader Deng Xiaoping may have missed a few details that appeared in the original English edition.

The Chinese version did not mention that Chinese newspapers had been ordered to ignore the Communist implosion across Eastern Europe in the late 1980s. Nor that General Secretary Zhao Ziyang, purged during the Tiananmen Square crackdown, wept when he was placed under house arrest. Gone was the tense state dinner with the Soviet leader Mikhail S. Gorbachev when Deng, preoccupied by the throngs of students then occupying the square, let a dumpling tumble from his chopsticks.

Mr. Vogel, a professor emeritus at Harvard, said the decision to allow Chinese censors to tinker with his work was an unpleasant but necessary bargain, one that allowed the book to reach the kind of enormous readership many Western authors can only dream of. His book, “Deng Xiaoping and the Transformation of China,” sold 30,000 copies in the United States and 650,000 in China.

“To me the choice was easy,” he said during a book tour of China that drew appreciative throngs in nearly a dozen cities. “I thought it was better to have 90 percent of the book available here than zero.”

Such compromises, almost unheard of just five years ago, are becoming increasingly common as American authors and their publishers are drawn to the Chinese market. With a highly literate population hungry for the works of foreign writers, China is an increasing source of revenue for American publishing houses; last year e-book earnings for American publishers from China grew by 56 percent, according to the Association of American Publishers. Chinese publishing companies bought more than 16,000 titles from abroad in 2012, up from 1,664 in 1995.

Sexually explicit material is especially likely to be excised, and any chapters or passages that touch on Chinese history or politics are also likely to be removed or rewritten.

The article also discusses some authors who decline to cooperate with the censors and hence forgo the opportunity to reach Chinese audiences. The novelist Qiu Xiaolong (who was born in Shanghai and who now lives in St. Louis), for instance, became so frustrated with the changes made in his first three novels that he has refused to submit his fourth novel for publication in China. Likewise, the Financial Times columnist James Kynge, author of China Shakes the World: A Titan’s Rise and Troubled Future — and the Challenge for America, walked away from a publishing deal rather than cut a chapter from his book.

But, says, the article, such holdouts “are becoming increasingly rare. Many writers say they are torn by their desire to protect their work and the need to make a living in an era of shrinking advances. For others, it is simply about cultivating an audience in the world’s most populous country, a rising superpower that cannot be summarily ignored.”

Do read the whole thing.

3. Megan McArdle on Washington vs. D.C.: “Washington, D.C., has always been two cities. Washington spills out of downtown Metro stations at 8 a.m.; D.C. huddles on crowded buses at 6 a.m. On Sundays, when Washington goes to brunch, D.C. is in church. … Washington has health-insurance benefits, but D.C. is paying out of pocket. Washington just closed on a condo; D.C. is in foreclosure. Washington is making money. D.C. never recovered from the 2001 recession. Washington, of course, is mostly white and educated; D.C. is much blacker, poorer and less likely to have an Ivy League degree in its pocket.”

4. Scott Greenfield (emphasis added): “There is an appellate court, of course, which exists to correct the errors of an inferior court, but appellate courts rely on the judge below not being insane when making credibility determinations and findings of fact.”

5. This post by Dan Drezner is funny if you know something about baseball and have a working knowledge of conservative/libertarian think tanks: “If Fielder had run on contact — let’s call this the Heritage course of action — he would have been out, but there still would have been two runners on with only one out. If he had refrained from aggressive baserunning and stayed at third base — let’s call this the Cato course of action — Pedroia would have converted a normal double play, but at least there would still be a runner in scoring position. … As someone tweeted at me last night, AEI would have urged Fielder to walk home, on the premise that the catcher would treat Fielder as a true liberator of home plate.”

6. “Are you going to be a specialist? Or just a GP?”: “As a medical student and junior doctor in my hospital training years, I was often asked this question by friends, senior doctors and well meaning patients. It really grated on me, that one little word: ‘just’.”

7. Well, that’s just about the most awful thing I’ve read this week: “Syrian snipers appear to be targeting pregnant women, a British surgeon says after returning from the conflict zone”: “David Nott, who spent five weeks volunteering at a Syrian hospital, told The Times newspaper the gunshot wounds he had treated also indicated that bored snipers were targeting particular parts of civilians’ bodies in a bid to entertain themselves. … Nott, a prominent surgeon who counts former prime minister Tony Blair as an ex-patient, said he had treated more than half a dozen shot pregnant women on one day in the Syrian city, which he did not identify for security reasons. On another day, two consecutive gunshot patients were heavily pregnant women, both of whom lost their babies. ‘The women were all shot through the uterus, so that must have been where they were aiming for,’ he told The Times.” (H/T: Duck of Minerva.)

8. Last Sunday, the Atlanta Journal-Constitution published a front-page story, “Workers Who Cry Foul Seldom Get a Day in Court,” which reported on a study of employment discrimination cases brought in the Northern District of Georgia in 2011-12. (The full AJC story is behind a paywall, but the study itself [pdf, 33 pages] is available here.) The study, commissioned by an Atlanta employment law plaintiff’s firm, looked at the rates at which the federal court decided different employment discrimination claims at the summary judgment stage, and compared those rates to the rates in the Northern District of Alabama. (Alabama is within the same federal appeals court circuit as Georgia, and neither Georgia nor Alabama have any relevant state employment statutes that could skew the statistics.)

The study found that overall, the N.D.Ga. dismissed 82% of employment discrimination claims at summary judgment, compared to 66% in the N.D.Ala. The study breaks the Georgia cases down by type of claim (race discrimination, sex discrimination, age discrimination, etc.) and by sex and ethnicity of plaintiffs. For example, in northern Georgia, in the two year period under study, out of 29 cases brought by black female plaintiffs claiming race discrimination, 1 survived summary judgment. Out of 32 discriminatory termination claims brought by black plaintiffs, 4 survived summary judgment. Of 10 sex discrimination failure-to-promote claims, 9 were dismissed at summary judgment, as were 6 cases alleging wage discrimination on the basis of sex. Of 32 age discrimination claims, 84% were dismissed at summary judgment.

In sum, in 2011 and 2012, of the 181 employment discrimination cases where plaintiffs were represented by counsel and summary judgment motions were filed, 170 (94%) cases were dismissed in whole or in part, with 147 (82%) cases dismissed in their entirety.

(BTW, it feels odd to me to write “dismissed” in this context, although that is the term that the study and the blog posts are using. I tend to associate dismissal with Rule 12 motions early in the litigation. Courts dismiss cases under Rule 12(b) for lack of jurisdiction or some such, and they decide cases on the basis of motions for summary judgment. That’s what I thought, anyway. But everyone here is using dismissed when talking about summary judgment. Odd.)

The AJC reports that District Court being studies here “currently has eight active judges, five of whom were appointed by Democratic presidents and three of whom were appointed by Republican presidents. Title VII cases are also heard by the court’s eight senior judges; six of these judges were appointed by Democratic presidents, two by Republicans.”

At the Volokh Conspiracy, Nita Farahany has this post on the study: “How should we interpret these results? Could the Northern District of Georgia be facing far more frivolous suits than other jurisdictions? Perhaps, although it’s hard to believe that’s a complete answer. I, for one, would like to know how these results compare to summary dismissal of other types of claims in the same jurisdiction.”

And at his blog, Senior Judge Kopf of the District of Nebraska has multiple posts on this subject, for example here and here. Judge Kopf has some reservations about the study (especially, he points to the hazards of drawing sweeping conclusions from small sample sizes). He adds this observation from his own time on the bench:

My experience leads me to believe that most race and sex discrimination claims against most employers are legally baseless. By this, I do not mean to suggest that most employees or job-seekers are dishonest or that most employees or job-seekers may not have legitimate (but not legally cognizable) grievances. However, the federal law (whether you agree with it or not) does not make employers responsible for work place disputes unless the employer can reasonably be expected to have known and approved of conduct prohibited by the federal law. In short, these are hard cases to get to a jury because derivative liability (you pay me because somebody who worked for you hurt me) is manifestly not the standard in federal employment law.

Judge Kopf also passes along some thoughts from an anonymous law clerk in the N.D.Ga.:

[V]irtually all Title VII cases that get tossed before discovery are DOA because of failure to exhaust administrative remedies. The AJC article briefly touches on that, yet the entire article is premised upon the idea that the cases don’t get a fair shake in federal trial courts. It’s not the trial judges’ fault that Congress wrote in an administrative remedy requirement, and it’s not the trial judges’ fault that the appellate courts have strictly construed it. [A]t least half of Title VII cases get tossed before discovery, and it’s because the plaintiffs either sit on their claims and don’t retain counsel, or they retain incompetent counsel. …

In those cases where the plaintiff actually does present sufficient evidence to make out a prima facie case, the evaluation of their evidence in the pretext portion of the analysis is often outside the trial court’s discretion. Likewise, in a hostile environment analysis, the severe or pervasive question is often out of the Court’s discretion. In other words, there is often Circuit Court precedent that is either directly on-point or close enough that it is determinative. …

So, my experience is that the federal trial courts have significantly less discretion than journalists and the plaintiffs’ bar like to think they do. If the administrative requirements are too onerous, that’s on Congress. If Circuit precedents set the bar too high to get past summary judgment, that’s on the appellate courts.

As others have said, it would be useful to have statistics for more district courts, to see if the Northnern District of Georgia really is a statistical outlier.

9. Wired has reviews of the recent remake of Carrie, here and here. (Obviously, spoilers at both links.) The first review, by Devon Maloney, examines the movie’s focus on bullying at a time when bullying seems to have captured the attention of newspapers, pundits, and state legislatures in a powerful way:

Carrie, the new remake coming out this Friday and directed by Boys Don’t Cry mastermind Kimberly Peirce, is one of the few movies actually worth a do-over. …

In a modern twist, Carrie is also further tormented by a video of her locker-room nightmare making the rounds on smartphones and online. Perhaps most conspicuously, Brian De Palma’s 1976 fixation on sexualized teenaged flesh – flouncing naked in the locker room, jiggling during gym-class exercises on the playing field – is excised completely, which of course refocuses the plot back on the real allure of King’s Samsonian story: teenaged cruelty and the havoc it wreaks.

[T]he greatest accomplishment of this new version is that when you leave, it’s not Moretz’s face that will follow you around for days. It’s the faces of the bullies, played by mostly nameless newcomers, but whose remarkably well-performed cruelty will still seem hauntingly familiar all the same to anyone who has ever experienced it. It’s their condemned ghosts who will haunt you, not Carrie’s.

This is the reason one remakes Carrie in 2013: to reframe unadulterated, schmaltzy horror into a more nuanced, realistic terror, the one that leaves you, on the one hand, oddly charged if you’ve ever felt been a victim, or scouring your mental Rolodex for the Carries of your own teenaged past if you were one of the kids dishing it out. This Carrie does what it ought to do: It proves that every generation needs its own cautionary tale about preying on the vulnerable until its circumstances are no longer relevant.

10. A literary analysis of Breaking Bad. (FWIW, I largely disagree with the post, and I liked the ending of the show.)

11. “An Open Letter to the Parents of the Stephentown 300”: a story from back in September:

[W]ord got out that your children had broken into a home in Stephentown, NY and threw a party. More than 300 of them partied and drunkenly smashed windows, urinated on the floors, stood on tables, punched holes in the ceiling and stole a statue that was part of a memorial for the owner’s stillborn grandson. Oh, it gets better. Before, during and after the party, they tweeted about it and posted pictures of themselves engaged in this behavior.

Way to go.

The house is owned by former NFL player Brian Holloway. It is his second residence, paid for in part by his Super Bowl bonus. He lives in Florida and the Stephentown house is on the market. He watched this unfold online while at his home in Florida. Instead of demanding the arrest of your kids, he instead created a website, http://www.helpmesave300.com, where he reposted their photos, identified the people involved, and called for ways to reach out to young people and show them that there are better ways to spend their time than drinking, drugs and vandalism.

He is a better person than I would have been in that position. It takes class and compassion to see beyond the urine stained carpets, broken windows, damaged walls and blatant disrespect to reach out to your kids. …

Instead of dragging your kids back to apologize and clean up the mess, you lashed out at Brian Holloway, threatened to firebomb his house, and are now planning to sue him. For what? For identifying your kids online. Well guess what? Your little Johnny did that himself the minute he tweeted that iPhone photo standing on the dining room table, holding a red solo cup filled with beer.

Instead of sitting little Johnny down and reminding him that what he did is not acceptable and then dragging him by the collar to apologize to Mr. Holloway, you chose instead to harass and threaten the victim. Let’s not forget here, your child victimized this man by destroying his home. How dare you respond with anything other than regret, embarrassment, and a sincere apology instead of righteous indignation, threats of violence and lawsuits.

Parents like you are responsible for an entire generation that expects the world handed to them, because you have given it to them all along. …

Do read the whole thing.

It appears that some of the vandals (very few of the 300) have been arrested and charged in this matter. As one would expect.

No news on the parents’ threatened lawsuit against Mr. Holloway.

12. On a different note, from Matt Walsh: “Dear parents, you need to control your kids. Sincerely, non-parents.” (Not what I expected.)

13. The importance of Mr. Feeny.

14. Scott Greenfield on why hackers don’t win too often when the justice system comes down on them (tl;dr: they don’t know enough to hire experienced criminal defense counsel):

I also suspect that one of the aspects of Weev’s desire to have Tor as his lawyer was that a more experienced lawyer would never have let Weev shoot his mouth off as he did, screw up his own defense at every turn and seize control of his defense so that it would become a platform for hacker politics rather than a defense against a criminal accusation and, more importantly from a broader perspective, a major case in the interpretation of one of the most important, and worst conceived, criminal laws going forward, the CFAA.

Hackers tend to be very smart when it comes to binary thinking, but that doesn’t translate into sound judgment when it comes to law or defending themselves. This became painfully apparently in the aftermath to the Aaron Swartz suicide, when the hacktivist community engaged misguided assumptions and a remarkably narcissistic world view.

The problem is that while hackers will be at the leading edge of prosecutions under the CFAA, it will eventually filter down to everyone else, and we will be left with the law developed by the lawyers they select. In other words, we’re going to live with results of their choices, for better or worse.

15. “Separating the Art from the Artist,” with special application to Orson Scott Card and Canadian writer David Gilmour.

16. Four hundred years of New York diaries.

17. Of dogs and Alzheimer’s: “In a quiet moment a week ago, [mom] asked my grown nephew Ben if he would take Ruby, even though she is not quite ready to let her go. She needed the assurance that her dog would be looked after. And Ruby will. In that moment, a moment unintentionally overheard by me, I realized that my mother is still teaching me. Her journey through Alzheimer’s may be a path on which our individual paths intersect but ultimately we each walk alone. As my mother’s corporeal light dims, I am reminded again that the things we accumulate in life are shed as we approach death. They are unnecessary, and my mother’s disease prevents her from clinging to them. At some vanishing point, she will be free of everything.”

18. Remember that UC Davis police officer who pepper-sprayed a group of sitting students who were engaged in non-violent protest? Yeah, he just got a $38,000 settlement for his mental anguish (H/T: Anderson):

Former UC Davis officer John Pike, famous for casually pepper spraying a group of students in the face during a 2011 protest, was awarded a $38,000 settlement for psychiatric injuries for the way he was treated afterwards. Pike, who was eventually fired, filed a workers compensation claim this summer.

That means that Pike, who walked up to a group of sitting, passive students and pepper sprayed their faces, will get a comparable compensation from the university to that awarded to the students he targeted. UC Davis has also settled with the students actually targeted by Pike’s pepper spray, agreeing to pay out $1 million total to 21 plaintiffs. That breaks down to a bit less per student than Pike himself will get: $30,000 per plaintiff, plus a $250,000 sum for their lawyers to split and a handful of other delegated portions of the award. The university also formally apologized as part of the settlement. Pike’s settlement includes $5,700 in legal fees for his lawyer in the case.

As Anderson says, irony fails.

19. Aleister Crowley and Augustine: “Aleister Crowley gets some bad press, much of it generated by him. .. But when he wasn’t trying to shock the prudes or engaging in outrageous self-promotion Creepy Crowley was actually a pretty serious and thoughtful religious scholar. .. What many would find particularly surprising is that Crowley was no slouch as a moral philosopher either. Many of his ethical aphorisms – such as ‘The Way of Mastery is to break all the rules; but you have to know them perfectly before you can do this’ – are designed to shock as much as to enlighten, but throughout his writings you can see the influences of Aristotle, Spinoza, Hobbes, Hume, Kant, Bentham, Mill and, of course, Nietzsche. There are probably many others I am too ill-educated to spot. At it’s core, Crowley’s professed morality resembles no others more than it does that of St Augustine of Hippo…

20. Should I check email? A flowchart.

21. “If the ring fits, that will be a sign.”

22. Clark at Popehat on the old school publishing industry (emphasis added): “I think that one of the most exciting trends in the last few years is the disintermediation of the big publishing oligarchy and the rise of self publishing. I follow with fascination several blogs by established and new authors who are grappling with this new world. I think it is an unalloyed advance in human freedom. That said, I also think that Big Paper served an actual function: it took the bell curve of the slush pile, chopped off the left 95%, and ensured that the vast majority of what actually hit Barnes & Noble shelves was at least competent. There were many false negatives: books that were good enough to read, but did not get published. But there were even more true negatives: the vast majority of submitted manuscripts that were not published were not published for a reason.

23. Thank you, Georgia Supreme Court, for letting us know.

24. Proposed alternative names for the Washington Redskins. I like the “Unpaid Interns.”


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