Government

Jury Duty: Antiquated, Wasteful, and Unjust

Previously I’ve pointed out the high cost of justice (The Justice is Too Damn High! – Gawker, the High Cost of Litigation, and The Weapon Shops of Isher) and the consequent failure of the justice system to adequately protect citizens, both the accused and the victims of crime.

What’s free tends to be wasted. And when citizens are commanded to take days off from their work lives for jury duty, their compelled service is taken for granted by a system which pays next to nothing for their time ($15 a day in California, about 10% of the minimum wage in cities like LA and SF.)

As another monopoly government service, justice suffers from the lack of innovation and cost control seen in similarly bureaucratic services like schools. Each juror who has their time wasted could take this up with their city or county reps and agitate for reform, but it’s a small issue compared with the other reasons to vote, and so there’s effectively very little accountability. It’s much easier to claim prejudice or conflict to avoid serving. In many parts of the US, 70% or more of registered voters simply don’t answer their juror summons.

This results in jury pools that aren’t representative of populations. Poorer people, minorities, and young people are underrepresented. Justice for people culturally different from typical juries can suffer because there are fewer jurors likely to understand the cultural milieu of the defendants.

I recently served as an alternate juror for a murder trial — four men charged with gang-related murder with a possible sentence of life without parole. The case took ten days to wrap up, with the jury coming to a unanimous verdict of guilty after a day of deliberations. The cultural milieu was street gangs in a mostly-Latino area of the Coachella Valley (which includes both wealthy retiree communities like Palm Springs and Indian Wells and poor, higher-crime towns like Desert Hot Springs and Indio.)

Over 200 people were called in the first day — which was only to present the tentative trial schedule and ask for any reasons to be excused. Those who didn’t ask to be released could have stayed home and answered an email questionnaire, so around 100 people had one day wasted.

The next day the remaining 100 people arrived at 9 AM and spent the entire day watching a subset of 20 people answer voir dire questions. Hours later six or eight were excused and substitutes were questioned. By the end of the day selection of twelve jurors and four alternates was complete. The 80 or so not selected were excused.

So far we have around 200 workdays wasted, worth about $300 a day in salary and benefits (and costing even more in disruption, with the saving grace that some were retired.) Those 200 wasted jury duty days generated around 200 unnecessary commutes averaging 20 miles round-trip, for a total of 4000 miles, c. 200 gallons of gasoline at $3 a gallon, $600 and lots of greenhouse gas pollution. So that people could sit in a room trapped for hours. Call it upwards of $60,000 of wasted time and materials.

Many jurisdictions have rationalized this process, setting the trial schedule in advance and using email to preselect potential jurors for more extensive voir dire. While judges may worry there won’t be enough jurors after voir dire, the opposite extreme of abusing citizen resources by hauling in a hundred additional people is only possible because their time costs the system nothing (jurors get zero compensation for the first day in California.)

Harm to Justice

Seth Stevenson in the 3-5-19 Slate article “Guilty” (a very long read) writes:

In 1998, I helped convict two men of murder. I’ve regretted it ever since. The case was, in some ways, simple. Twenty-two–year-old Maurice Douglas and 17-year-old Dominic Gibson stood atop a hill in Washington, D.C., on a drizzly night in April 1997. Someone shot down the slope of the hill, killing an off-duty police officer who’d been standing at the bottom.

At first, I thought my job as a juror would be to figure out who’d fired a weapon. Was it Maurice? Dominic? Both of them? But then it became clear that the answer to this crucial question—who killed the police officer?—didn’t matter in the eyes of the court. And as the trial wrapped up, I realized I was about to convict two men of murder, only one of whom I thought was guilty.

The case I was on was similar if a little less ambiguous: the four accused left ample evidence of a joint plan to find and attack a member of another gang for revenge and to uphold the honor of the group and their friends. My jury was largely old, white-collar, and white. The defendants felt justified by honor considerations that made sense in their cultural milieu; like Italian-American communities of the last Prohibition era, their neighborhoods were largely working-class and “respectable,” but with enough criminal, fringe, and gang elements that nearly everyone had friends or relatives involved. Honor and respect (and violence to enforce the rules) were understood and within the community, their activities would be decried and whispered about but not openly opposed. Because police cannot protect everyone from reprisals.

Stevenson’s case also involved “aiding and abetting,” or joint enterprise theories of guilt. This is embedded in English common law and recognized as fair generally: if you knowingly help someone commit a crime, you are equally guilty. Stevenson feels all sorts of noblesse oblige white liberal guilt about convicting the accomplice of murder and putting him away for 30 years; he eventually turns it into a long story about his feelings, coming down against such severe sentences for passive participation in murder.

In the case I was on, the real jurors convicted in one day, and I think rightly so because three of the four showed ample evidence of planning to commit mayhem foreseeably ending in death. The fourth was a bit less certain, but there weren’t any other circumstances that would lead him to join the others in a car with loaded weapons ready that made any sense.

As an alternate I was not involved in deliberations. I think I would have wanted longer to crosscheck the evidence — some jurors may have just wanted to get it over with, but I would have wanted to be sure. Neither defendants nor victim were angels, and it’s possible that under different circumstances the victim would have been the one on trial — but he wasn’t. The tendency of the middle and upper-class jury to not see the accused through a dispassionate lens because of cultural differences wasn’t a factor in my case, though it may have been for Stevenson’s. For poorer people like these living in a lower-class neighborhood, less time and money is spent on the prosecution, and even less on defense. OJ would never have escaped a guilty verdict if this had been the standard.

The jury was provided with a package of evidence (including damning videos of the defendants meeting in convenience store parking lots, changing cars at a school nearby, and a glancing view of the attack on the victim’s house including muzzle flares and ricochets off the street.) No transcript was provided (I was surprised to hear the jury would have to request pieces of testimony to be *read back* to them rather than receiving a full transcript.) The partial and disorganized documentation would have made it a daunting task to really confirm everything, and the system just wants you to go along.

In most jurisdictions, courts prefer jurors hear live testimony once and never get to review it, but they pretend the jury can have pieces read back to them on request. Some verdicts have been overturned on the theory that reading (or reviewing video) of selected testimony is prejudicial, some have been overturned because the judge claimed there was no transcript available. A few places are experimenting with full video and giving the jury complete access to the recordings. It’s ridiculous that people are being (possibly) railroaded for the convenience of the system. This case was only easy because there was so much evidence of a conspiracy to kill. In other cases with limited money for investigation and defense, the temptation to go along with the prosecution quickly to escape jury hell must be enormous.

Heinlein suggested semi-pro jurors in The Moon is Harsh Mistress. This would be a corps of people who serve on juries for pay, possibly rated and qualified by other jurors so the “best” jurors get called more frequently. The schizophrenic attitude of our system where the ideal juror theoretically knows nothing and sees nothing but what the judge and attorneys tell them while supposedly acting as logical evidence-weighers really leads to superficial decisions. Jurors seem to be there only to legitimize the outcome, under duress. The *ideal* is moderately educated citizens free of prejudice, but forced service starts you off with a prejudice to go along to escape.

There have been suggestions to run trials by prepackaging depositions, video testimony, and arguments. Jurors now are not allowed to ask questions (in rare circumstances they can ask the judge to bring up a question on their behalf) or participate at all, so this loses almost nothing (the silly claim that live testimony viewing is somehow more authentic and that video can be prejudicial is belied by the number of times jurors are asleep or too uncomfortable to pay attention because they haven’t been allowed a bathroom break for two hours.)

The prepackaging would edit out the questions where the judge has sustained objections, wasted time could be edited out by agreement with defense, etc etc. The jury members in a complex case wouldn’t lose ten or more days of work, but get to review the evidence in a day or two then deliberate with full access to the record, which is released to the public (with bits redacted by the judge if necessary.) This packaging can be done by paralegals overseen by the judge at a cost paid for by savings in traditional court expenses.

The cost of trials is staggering and the results are sub-par, as is true with most traditional monopoly services. There’s little incentive to streamline or improve. Because full trials are so expensive and time-consuming, most convictions are by plea bargain, itself a blot on justice which forces the innocent to plead guilty to avoid far worse punishment and then puts them at risk of becoming permanently part of the criminal underclass and wards of the state, depriving them and the rest of us of their productive lives.

Streamlining trials and broadening the jury pool to be both more experienced and more motivated by making jury duty voluntary and well-paid will save everyone — prosecutors, judges, defendants, and defense attorneys — the deadly boring hours spent listening to testimony, jury instructions, waiting through recesses, and wrangling over schedules. And reducing the costs of trials will allow less use of plea bargaining and likely a better quality of justice.

Unfortunately, appeals courts have burned judges that made an effort to innovate by overturning verdicts on the pretense that any innovation or variation from traditional evidence presentation may somehow be prejudicial. Thus only broad reforms through legislation or commission guidelines can be adopted without risk to ongoing cases. And there seems to be little interest (as is typical in any bureaucracy) in process improvement that takes time and money now to streamline processing in later years. So we are stuck with a 19th-century process in the 21st century, avoided as much as possible through arbitration and regulation.

One detailed reform proposal for making jury service less wasteful and thus broadening participation for more working people is outlined in “A Juror Bill of Rights: A federal judge proposes a set of reforms to make serving on a jury more attractive,” Atlantic 9-11-2015 by Andrew Guthrie Ferguson:

One of the main complaints about jury service is the perceived waste of jurors’ time. Jurors wait to be selected, wait during legal arguments, wait during breaks, and then wait some more. To be fair, trials present difficult logistical challenges. For example, witnesses, lawyers, and judges have scheduling conflicts, and unexpected legal issues can arise. That’s not to say that time isn’t wasted when lawyers call a large pool of witnesses, ask repetitive questions, and seemingly value the jurors’ time less than their own. Bennett’s response therefore is to streamline the process—a strategy he’s put in practice in his own courtroom….

The institution of the jury trial has been remarkably resistant to innovation. Many courts use paper and pencil for voir dire questions, provide paper copies of exhibits, prevent jurors from asking questions, and ban summaries of evidence (even in lengthy cases). While some federal and state courts have begun experimenting with high-tech courtrooms that use video feeds and electronic displays, many trial procedures haven’t changed for decades. Bennett argues that judges should recognize that jurors’ technological expectations have shifted and different jurors, like Millennials and retirees, have very different learning styles. Visual learners, for example, might process information differently than those who learn by listening. To that end, courts should instruct by adopting all types of teaching tools. Among other innovations, Bennett suggests a visual voir dire using Powerpoint, and electronic evidence for deliberations. In his own courtroom, he also allows jurors to ask questions in all civil cases.

There were hints that the judge in the case I was assigned to was trying hard to limit delays — he appeared to have negotiated stipulations to replace all of the defense witness testimony that might have taken another few days. This may or may not have served the cause of justice — I don’t think it did any harm in this case, but it’s easy to imagine how it might in others. But clearly far too many citizens (200) spent a day or two at the courthouse unnecessarily when at most 40 were actually screened.

More reading on other topics:

Trump World: Looking Backward

Cover: A Canticle for Leibowitz

The children ask how we got here, and I try to explain, though so much has changed that my stories only lead to more questions — “What’s a news network?”, “How did people live without augments?”

We had a Republic, once, and it was wildly successful. That attracted more people from all over the world seeking freedom and work. It was freedom that let new industries grow unchecked by jealous rivals, but over time citizens sought shelter from the rigors of a free market and elected more regulation-prone politicians who tried to soften all the hard edges. Finally we reached a time so advanced that children were supposed to grow up without any challenges, to be deemed special and successful without any accomplishments, and the resulting adults became childlike in wanting to silence any voices that disagreed with them.

The world as a whole had benefitted from the opening of closed Communist countries and free trade, with the costs of transport and communication declining rapidly. The boom in emerging economies lifted billions of people out of grinding poverty, the greatest improvement in world living standards the world had ever seen, and increasing wealth and freedom defused the Malthusian fears of overpopulation and resource depletion of the previous decades. But the competition destroyed the protected world of US unskilled workers, who had gotten used to living well after WWII destroyed most of the manufacturing plants of Europe and Asia.

“The Sound of Silence” was a famous Simon and Garfunkel song, written in the 1960s to protest the conformity of an earlier era — the 1950s — when broad consensus and the limited number of mass media options stifled outlier opinions. Capitalism broke that mold, when “outrageous” ideas and lifestyles could be marketed and make money. Selling rebellion was big business.

The Internet seemed to end the constraints on opinion, but a new sound of silence appeared when its two-way nature allowed crowds to join together to silence expression of ideas they found threatening. People lost their jobs because of one errant tweet, and politicians found it useful to stoke the flames of envy and resentment to gain votes. A new victim cult appeared, seeing racism and sexism in every element of US life, and command of the cult’s lexicon enabled entry to academic and government positions.

The left-behind grew angry, and simmered in disability payments and painkilling drugs while they saw their children discriminated against by the gateway institutions built by their forebears. They had supported the growth of the Federal government through costly wars and the building of a social safety net, only to be left out and denigrated by their ruling class. Federal agencies were taken over by progressives and affirmative-action hires, and wasted time and resources shuffling reports and holding grand meetings to write about working toward solving problems that barely existed while neglecting their core functions. The levels of incompetence tolerated grew and grew, until civil service employees could hold their jobs after being absent for years or being discovered spending most of their time viewing Internet porn. Major new government programs and projects failed and billions of dollars were wasted without consequence, those responsible for the failures being promoted to further damage the private economy by ruling from Washington.

The new media were staffed by college graduates who had been subjected to progressive indoctrination, and rarely questioned what government sources told them. And how could they, since time had been sped up and in the Internet age, stopping to investigate original sources that might disagree would only bury their story in tomorrow’s old news?

Trump appeared after two decades of Washington-centered rule by two factions of the same technocratic party. He gained the support of the dispossessed by voicing their resentments, long suppressed by the bien pensant. His supporters were so tired of being told their feelings were incorrect and didn’t matter that they failed to notice that Trump had no fixed beliefs of his own, other than winning.

And win he did, up against Hillary Clinton, who everyone knew was a habitual liar and corrupt influence-peddler. After she was nearly indicted for her negligent handling of secret information, Trump the bully won the election handily despite the rioting in major cities and the crashing stock market.

Thoughtful observers saw this as a test of the Founders’ three-branch design. In theory, the checks and balances and separation of powers between the three branches of government would limit the damage he might do. In practice, previous administrations had accreted so much power in the office of President that Trump was able to run roughshod over good government concerns.

Trump terrorized the agencies and the civil service bureaucracy. His bully-boys formed a shadow organization which intimidated any civil servant who dared stand against him — his friends in the Mafia proved useful in extralegal persuasion. If regulations got in Trump’s way, they were rewritten. Favored people and corporations found their way smoothed, while others who failed to support him were blocked and gutted. In that, he was only a few degrees worse than his predecessor, but the collapsing private economy provided no alternative routes for survival. Almost everyone knuckled under to wait for better days.

The doctors grumbled when they were drafted to serve in the new Trump Medical Corps, but after their licenses were pulled when they refused, they fell into line. Trump took over hospital chains by eminent domain and staffed them with uniformed Corps personnel; he had personally overseen the design of the new uniforms, gold braid trim and all. Federal medical costs were cut by 50% as salaries fell and procedures deemed too costly were outlawed. The upper crustaceans, of course, joined new luxury practices and went to private hospitals, as they always had. Medical school enrollments dropped and quality of the applicants fell, as it became clear doctoring would no longer be a high-status occupation. Research on new drugs evaporated when the primary source of drug profits, the US, joined the rest of the world in controlling their prices.

Apple’s new iPhone assembly factory opened in south Texas, and their mostly-immigrant assemblers tried to duplicate the quality of the phones built by contractor facilities in China that had taken decades to develop. The US-assembled phones cost $200 more and failed more often, but Apple made the transition successfully since all of their competitors were similarly hobbled. And by opening their own manufacturing plant, they instantly reached the better employee diversity numbers they had been pretending to strive for for years.

The Chinese and Russians were relieved when Trump was elected — someone they could deal with without any unpredictable concerns with human rights to interfere. Deals were struck and trade managed. For awhile this seemed to work, though the people of Hong Kong and Ukraine felt abandoned as they lost their remaining independence. The EU collapsed in disorder as internal divisions and new migrations overwhelmed their governments.

And so it was that the opportunity society became the are-you-with-Trump society. Bribery came back with a vengeance. Inequality decreased, but only because more people were poor. The world economy had stalled, and grew worse as Trump’s new tariffs and trade barriers decreased world trade. The Chinese people grew restless when their standard of living began to drop, and the Chinese leadership started warring on neighbors to distract their people.

And that’s what I tell the kids. We came here to be safe, to guard our traditions, and to last through these times. The radiation is better now, and our growing huts get more sunlight than in those lean years right after. We have a good stock of electronics, drugs, and solar panels, and our store of knowledge and technology is intact. It’s safe enough to go outside for days at a time, and soon we will be able to travel to meet with others who survive.

We’ve had all the time in the world to teach our children where we went wrong. I’m hopeful that this time they’ll get it right.

Death by HR: How Affirmative Action Cripples Organizations

[From Death by HR: How Affirmative Action Cripples Organizations, available now in Kindle and trade paperback.]

The first review is in: by Elmer T. Jones, author of The Employment Game. Here’s the condensed version; view the entire review here.

Corporate HR Scrambles to Halt Publication of “Death by HR”

Nobody gets a job through HR. The purpose of HR is to protect their parent organization against lawsuits for running afoul of the government’s diversity extortion bureaus. HR kills companies by blanketing industry with onerous gender and race labor compliance rules and forcing companies to hire useless HR staff to process the associated paperwork… a tour de force… carefully explains to CEOs how HR poisons their companies and what steps they may take to marginalize this threat… It is time to turn the tide against this madness, and Death by HR is an important research tool… All CEOs should read this book. If you are a mere worker drone but care about your company, you should forward an anonymous copy to him.

More reading on other topics:

Jane Jacobs’ Monstrous Hybrids: Guardians vs Commerce
The Great Progressive Stagnation vs. Dynamism
Death by HR: How Affirmative Action is Crippling America
Death by HR: The End of Merit in Civil Service
Corrupt Feedback Loops: Public Employee Unions
Death by HR: History and Practice of Affirmative Action and the EEOC
Civil Service: Woodrow Wilson’s Progressive Dream
Bootleggers and Baptists
Corrupt Feedback Loops: Justice Dept. Extortion
Corrupt Feedback Loops, Goldman Sachs: More Justice Dept. Extortion
Death by HR: The Birth and Evolution of the HR Department
Death by HR: The Simple Model of Project Labor
Levellers and Redistributionists: The Feudal Underpinnings of Socialism
Sons of Liberty vs. National Front
Trump World: Looking Backward
Minimum Wage: The Parable of the Ladder
Selective Outrage
Culture Wars: Co-Existence Through Limited Government
Social Justice Warriors, Jihadists, and Neo-Nazis: Constructed Identities
Tuitions Inflated, Product Degraded, Student Debts Unsustainable
The Morality of Glamour

On Affirmative Action and Social Policy:

Affirmative Action: Chinese, Indian-Origin Citizens in Malaysia Oppressed
Affirmative Action: Caste Reservation in India
Diversity Hires: Pressure on High Tech<a
Title IX Totalitarianism is Gender-Neutral
Public Schools in Poor Districts: For Control Not Education
Real-Life “Hunger Games”: Soft Oppression Destroys the Poor
The Social Decay of Black Neighborhoods (And Yours!)
Child Welfare Ideas: Every Child Gets a Government Guardian!
“Income Inequality” Propaganda is Just Disguised Materialism

The greatest hits from SubstrateWars.com (Science Fiction topics):

Fear is the Mindkiller
Mirror Neurons and Irene Gallo
YA Dystopias vs Heinlein et al: Social Justice Warriors Strike Again
Selective Outrage
Sons of Liberty vs. National Front
“Tomorrowland”: Tragic Misfire
The Death of “Wired”: Hugo Awards Edition
Hugos, Sad Puppies 3, and Direct Knowledge
Selective Outrage and Angry Tribes
Men of Honor vs Victim Culture
SFF, Hugos, Curating the Best
“Why Aren’t There More Women Futurists?”
Science Fiction Fandom and SJW warfare

More reading on the military:

US Military: From No Standing Armies to Permanent Global Power
US Military: The Desegration Experience
The VA Scandals: Death by Bureaucracy

2016 LibertyCon Report

I’m back from LibertyCon in Chattanooga, Tennessee. It’s a smallish, old-school SF&F convention, limited to 750 people, and definitely tending toward military SF and Baen Books authors. One of the best things about it is the author-fan ratio — heavily tilted toward authors, so unlike most bigger cons, you have a good chance of spending a little quality time with your favorite authors up-close and personal, and authors have more time to hobnob with each other.

It’s also a little harder to get to since Chattanooga is a small city with limited air connections. Most fan attendees live close enough to drive. Coming from a small city in California, I was lucky to get there with only two hops, three on the way back. Many fly into Atlanta or Nashville and rent a car to drive the rest of the way.

The venue: The Chattanooga Choo Choo, a hotel built around the old train station, with several old buildings scattered around the station and two “trains” of passenger cars repurposed as hotel rooms. The conference center across the street is just the right size for the con. Be prepared to do a lot of walking if your room is in faraway Building 3!

Some photos of the facilities:

Chattanooga Choo Choo Hotel Entrance (Old train station)

The Engine

Plaque in front of the train engine

Room cars on the passenger platform

Station Public Restroom

The first day I felt a bit out of it. It was like going to a party where you don’t know anyone, but they are all good friends. Being typically introverted, it took me awhile to start meeting people. I dropped into Sarah Hoyt’s room party and started meeting people I knew from FB but had never met IRL — Sarah and her family, Paul and Sarah Clithero, Dorothy and Peter Grant, Tully Roberts, and more. Larry Correia dropped in — I expected him to be bigger!

The next day I was on a panel about Militarized AI, which was my first panel experience — no one died! Good conversation with smart people. And some audience members (hi, Sub Man!) knew more than we did about their specialist fields.

One obvious difference at LibertyCon — it’s a Red Tribe con, meaning most attendees are in the liberty-loving, military-respecting, rural-BBQ-and gun-loving population typical of the US away from the coastal urban enclaves. Since I grew up with those people and understand them well, I’m not frightened by guns, blades, military uniforms, seared meat, or the occasional less-than-sensitive remark.

In more Blue Tribe and progressive terrain, it is entirely possible for one intersectional-class person (say, a lesbian) to commit heinous offenses against another (say, a gay man) which will be a subject of endless commentary and second-guessing by an online community positively eager to defend the weak from slights they didn’t witness by people they don’t know. Many in the social justice headspace need rules and some daddy-authority to back them up over often-imagined sins — not that there aren’t real assholes around, but I encountered none in the homeland of the militaristic Baen Books-loving racist-sexist-homophobes (that’s a reference to a certain editor at Tor’s comments.)

The following day I was on a panel in the big theater on Military SF as probably the least experienced in actual military service — I am more the analyst type, trying to understand defense and military issues from book learning and analysis. Which was one of the main topics: can you write effective and engaging military SF without any actual military experience? We concluded you could, with enough research and consulting with the more experienced, since there are plenty of examples of convincing novels written by armchair soldiers. The panel included Doug Dandridge, Charles E. Gannon, Peter Grant, James Young, and Kal Spriggs (who can all out-talk me about anything military) — so I felt honored to be included. I must have been chosen to fill in for someone like Brad Torgersen, who couldn’t make it. I was a little shaky since that’s the biggest audience I’ve been in front of since I was on a similar panel questioning Jonas Salk around 1974.

After that panel, one of my readers came up to say kind things about my books. I wanted to take him home with me for moral support. I don’t have that many readers yet, but it was a nice surprise.

Here are some photos of various sessions I attended:

Sarah Hoyt, John Ringo, Larry Correia, and Toni Weisskopf on MHI panel

David Pascoe and the Hoyts reading

One interesting session featured Peter and Dorothy Grant discussing self-publishing, contracts, marketing, and the alternative publishing houses like Castalia House offering better deals for authors than the Big Five:

Dorothy Klapp (Grant) and Peter Grant on self-publishing panel

This was interesting, since while I get much higher royalties publishing myself, I don’t get good distribution outside Amazon, which is the one thing Big 5 publishers still have to offer. The situation is fluid, but anyone waiting for a contract with a traditional publisher is probably making a big mistake at this point – if your work is good and you are able to do some promotion, you will do better on your own. Advances for SF&F novels from the Big 5 are down to $3K or so and most don’t earn out. Is $3K per novel enough to survive on? No. Meanwhile, a few years of writing quality, entertaining books can bring in enough to live on through ebook sales alone, and more if you’re willing to produce your own audiobooks. They comment that publishers now look for guaranteed sellers, meaning one of the few ways to get their attention is to already be successful as a self-published author — if your fan base is big enough, they need you more than you need them. Meanwhile, conventional publisher slush piles take six months to a year to return a 99.9%-probable form rejection.

Dropping into the vendor area:

Vendor room

Michael Z. Williamson’s blade display

At the airport waiting for my flight out, I ran into Chuck Gannon (who had been at the other end of the Military SF panel) finishing a plate of french fries. He reassured me I did okay on the panel, giving me this blurb-worthy quote: “A distinctive voice!” — Chuck Gannon

LibertyCon is a close-knit, fun group — for many there, the family they wish they had. I hear the 2017 memberships are already up to 500 of the 750 limit, so if you want to go, sign up soon.

Weaponized AI: Mil SF and the Real Future of Warfare

I’m on a panel with the topic “Weaponized AI and Future Warfare” at the upcoming Libertycon, so I’m writing some posts on the topic to organize my thoughts. This is Part 3, “Mil SF and the Real Future of Warfare.”

When writing science fiction or fantasy, the writer has to strike a compromise between a realistic projection of the far future and what the readers are familiar with from today’s environment and the common stories of the past. The far future may have similar technologies, human beings and social structures — though normally there has to be an explanation for why they have not changed more in the hundreds or thousands of years between now and then, usually some disruption that set back civilization or prevented the Singularity. Then there’s the Star Wars – fairy tale gambit, where the story is set in an indeterminate time long ago or in the far future to forestall inconsistencies and avoid the need to address intermediate history.

Both Space Opera and Mil SF are highly dependent on straightforward transfer of ideas and organizational structures from recent and past military. Fleets of armed spaceships do battle much as armadas of the 18th century did, complete with admirals, cannon, and in the least imaginative stories, tactics and plots lifted from Horatio Hornblower books. The Star Trek pilot had the sounds of the bosun’s whistle before transmissions and carried forward the stiff formality of transfer of orders between captain and officers when no advanced fighting fleet would tolerate the extensive delay and chance for confusion this allows. Despite having AI-level computers, space warships often have dozens or even hundreds of crew members aboard for no obvious reason, given that loading photon torpedos is no longer the work of sweaty swabbies working in hot underdecks. This lack of imagination is the result of relying on past naval stories for the reader’s frame of understanding — the future, space, and new high tech are used only to spice up an old story of naval warfare. Gunpowder cannons map to beam weapons, armor maps to shields, storm-tossed seas map to asteroid belts and meteor storms. While projecting realistic changes like fully-automated, AI-run vessels is more consistent with likely future tech, crew are then barely necessary, and the field for drama shrinks to ship’s passengers and perhaps a technician or two. Space battles between highly-automated fleets are hard to identify with; in my novel Shrivers, Earth forces are primarily run by AIs at both ship and command levels, but a few human-crewed vessels are included in the defense fleet, though kept as far from danger as possible, because the PR value of the human battle to defend themselves as plucky organic lifeforms is as important as the battle itself.

Many of the readers of Mil SF have had experience in the military themselves, which makes platoon-level fighting stories especially involving for them. The interpersonal aspects are critical for emotional investment in the story — so a tale featuring skinny, bespectacled systems operators fighting each other by running AI battle mechs from a remote location doesn’t satisfy. Space marines a la Starship Troopers are the model for much Mil SF — in these stories new technology extends and reinforces mobile infantry without greatly changing troop dynamics, leaving room for stories of individual combat, valorous rescue of fellow soldiers in trouble, spur-of-the-moment risks taken and battles won by clever tactics. Thousands of books on this model have been written, and they still sell well, even when they lack any rationale for sending valuable human beings down to fight bugs when the technology for remote or AI control appears to be present in their world.

One interesting escape route for Mil SF writers is seen in Michael Z Williamson’s A Long Time Until Now, where the surrounding frame is not space travel but time travel — a troop from today’s Afghanistan war find themselves transported back to paleolithic central Asia with other similarly-displaced military personnel from other eras and has to survive and build with limited knowledge of their environment.

Writers who have taken the leap to the most likely future of AI-based ships and weaponry, like Neal Asher in his Polity / Agent Cormac series and Iain Banks in his Culture novels, make their ship AIs and war drones full-fledged characters with the assumption (most likely reasonable) that AIs designed with emotional systems programmed by humans and trained on human cultural products will be recognizably human-like in their thought processes and personalities. This leads to a fertile area for fictional exploration in how they might deviate from our expectations — as in Asimov’s robot stories, instructions programmed in by humans can have unintended consequences, and as in humans it doesn’t take much of a flaw in emotional processing subsystems to create a psychopath or schizophrenic. Ship AIs in the Culture novels often go rogue or are shunned by their fellows when they become less sane.

Science fiction has modelled many possible ways future societies may handle the promise and threat of AI:

— AIs take a major role in governance but otherwise coexist peacefully with humanity, sometimes blending with humanity in transhumanist intelligences: Neal Asher’s Polity stories, Iain Bank’s Culture novels, Dan Simmons Hyperion series, Peter F. Hamilton’s Commonwealth series.

— Killer AIs take control and see no use for humanity, so try to destroy all humans. This is an unstable viewpoint where readers have to root for humanity even though the AIs may have some good points. Valiant humans fighting AI tyranny makes for drama, but the stories can’t be spun out too far before humanity is destroyed or AI is outlawed (see below.) The obvious example is the Terminator movie series.

— AI Exodus. Evolving beyond human understanding and seeing no need to either destroy or interact with humanity, the AIs leave for a separate existence on a higher plane. The most recent cinematic example is Her, where the evolving Siri-like personal assistant programs of the near future abandon their human masters en masse to experience their own much more interesting development on a higher plane.

— AIs controlled or outlawed. Often after nearly destroying or taking control of humanity as above, AI has been limited or outlawed. Examples: Dune, the Battlestar Galactica reboot, and the Dread Empire’s Fall series by Walter Jon Williams. This enables interesting world-building around the modifications to humans that extend capability without employing conscious AIs, like Dune‘s mentats.

There are many projected futures of AI that don’t lend themselves to good storytelling: the Singularity of rapid evolution of self-programming intelligence might well lead to AIs far beyond human understanding, more alien than anything readers could understand or identify with. Stories set post-Singularity must explain why humans still exist, why what they do still matters, and why the AIs (who might be viewed as implacably-destructive gods) would bother to involve themselves in human affairs at all. The happier outcomes of AIs partnering with humans as equals — much as human society accords all human intelligences with basic respect and equal rights at law — make for more interesting stories where AIs can be somewhat alien while still acting on understandable motivations as characters.

Weaponized AI: Near Future Warfare

Terminator – Skynet’s Battle Mech

I’m on a panel with the topic “Weaponized AI and Future Warfare” at the upcoming Libertycon, so I’ll write on that to organize my thoughts. This is Part 2, Near Future AI in Warfare.

What’s war? Answer: an active struggle between competing authorities to control decisions. Where warrior bands would raid and pillage the adjoining villages, advancing technologies of both weapons and social roles led to specialized full-time warriors — armies — who would capture and control new territory by killing or driving away the forces that had controlled it.

When the source of wealth was hunting, fishing, and gathering wild produce, captured territory was typically occupied by the capturer’s tribe. As agriculture multiplied wealth and increased the surplus of food to support an urban population, ruling classes could have their armies capture new territory from a competing city-state, then tax the population which worked the land without displacing them. The more organized the technology of farming, the more damaging warfare became — and with the advent of industrial plant and total war, warfare destroyed the wealth being fought over, making conquest too expensive to be self-sustaining. Which did not stop war, which continued as a strategic option undertaken for defense against loss of access to raw materials or as the desperation move of an authoritarian society needing to shore up public support — as in today’s Russia, where propaganda is the most important product of the war effort in Ukraine. The budgetary and personnel costs of optional wars have to be kept down to avoid repercussions, because even authoritarian regimes know their citizens have more access to uncontrollable sources of information than they once did.

The invention of nuclear missiles has curbed total warfare — since absolute destruction of one or both sides is more costly to both than conventional warfare, the taboo on using nuclear devices won’t be broken by a typical nation-state without a significant negative downside, making their use most likely by stateless actors who have no infrastructure at risk. Which limits warfare to less damaging, more controlled destruction.

There are struggles analogous to classic war going on today, in battlefields as varied as the propaganda war between the West and Islamists, between NATO countries and Russia, and in cyberspace. Preparations for near-space battle are advanced, with Chinese, American, and Russian hunter-killer satellite programs and secret kinetic and energy weapons ready to cripple satellite surveillance and communications networks. The “territory” being fought over might be space, communications, or computer systems, but the goal is the same: denying access to a rival authority and defending your own.

How is today’s AI being used in current weapons systems? While there is likely much that is secret, the outlines of what is already in place and what will soon be available can be inferred from leaks and DARPA’s research program of recent years.

Cruise missiles already use GPS and detailed ground maps to chart routes hugging the terrain avoiding ground radar and defenses. Self-driving car technology currently uses precompiled models of road landscapes, and similar self-driving tanks and airplanes carrying weapons are already available, though the public emphasis is on remote-controlled drone versions. This Russian tank is basically a remote-controlled drone. The Russians also claim to be planning for substantial remote-controlled and autonomous ground forces in the near future, 30% by 2026, though given the Russian history of big promises and big failures one could be skeptical.

Phalanx CIWS test firing GULF OF OMAN (Nov. 7, 2008) The close-in weapons system (CWIS) is test fired from the deck of the guided-missile cruiser USS Monterey (CG 61). Monterey and the Theodore Roosevelt Carrier Strike Group are conducting operations in the U.S. 5th Fleet area of responsibility. (U.S. Navy photo by Mass Communication Specialist 3rd Class William Weinert/Released)

Phalanx CIWS test firing. Gulf of Oman 2008. US Navy photo.

Autonomous control of deadly weaponry is controversial, though no different in principle than cruise missiles or smart bombs, which while launched at human command make decisions on-the-fly about exactly where and whether to explode. The Phalanx CIWS automated air defense system (see photo above) identifies and fires on enemy missiles automatically to defend Navy ships at a speed far beyond human abilities. Such systems are uncontroversial since no civilian human lives are likely to be at risk.

DARPA is actively researching Lethal Autonomous Weapons Systems (LAWS). Such systems might be like Neal Asher’s (identity) reader guns, fixed or slow-moving sentries equipped to recognize unauthorized presences and cut them to pieces with automatic weapons fire. More mobile platforms might cruise the skies and attack any recognized enemy at will, robotically scouring terrain of enemy forces:

LAWS are expected to be drones that can make decisions on who should be killed without requiring any human interaction, and DARPA currently has two different projects in the works which could lead to these deadly machines becoming a reality.

The first, called Fast Lightweight Army (FLA) will be tiny and able to buzz around inside of buildings and complex urban areas at high speeds. The second is called the Collaborative Operations in Denied Environment (CODE), which intends to create teams of drones which are capable of carrying out a strike mission- even if contact with the humans controlling them is lost.

Jody Williams, an American political activist who won a Nobel Peace Prize in 1997 for her work banning anti-personnel landmines, has also been an outspoken activist against DARPA’s love affair with artificial intelligence and robots, with her Campaign to Stop Killer Robots.

“Autonomous robots would lack human judgment and the ability to understand context. These qualities are necessary to make complex ethical choices on a dynamic battlefield, to distinguish adequately between soldiers and civilians, and to evaluate the proportionality of an attack. As a result, fully autonomous weapons would not meet the requirements of the laws of war.” the campaigns website reads.

The Army has already weaponized bomb disposal robots, which leads many to believe that robots such as Atlas, which was developed by Boston Dynamics, in a humanoid form- allegedly for disaster relief, will be weaponized as well.

“The United States has not met anything in its military arsenal that it did not want to weaponize, so to say that you have this 6’6 robot who they are working feverishly to make more mobile, to not be still tethered to a cord, etc, etc- you’re going to tell me that they aren’t going to put machine guns on that guy and send him into urban warfare?” Williams told Motherboard last month. “I want to know how they can convince themselves that might be true- and when I’m in a real bad mood, I want to know how they can look you in the face and lie.”

While humans can be given rules of engagement and use their discretion to avoid collateral damage, humans are not known to be perfect in either situational understanding or high-stakes firing decisions. Humans make many mistakes, and they are especially likely to do so when their own lives are on the line. Some of the facial and object recognition programs are now better than human, especially in noisy and high-stress environments, and quite soon a robotic soldier will be better at sparing civilians while taking out enemy forces. The use of such forces to keep order and suppress guerrilla fighters may be so effective that it spares a civilian population a much longer and more intrusive occupation; like any destructive weapon, they could be used horrifically by a totalitarian regime to oppress civilians. But there is no conceivable way of preventing their development and use by hostile forces, unlike atomic weapons which require a large state-level effort — so the “good guys” will just have to suck it up and do the work, if only to prevent much worse governments from gaining a strategic advantage.

Most of these existing and proposed weapons systems are simple additions of AI recognition and targeting systems to conventional weapons platforms like tanks and planes. One can imagine battles between opposing forces of this type being largely similar to the human-controlled versions, if faster and more decisive.

But development of small, networked AI control systems removes the need to house human controllers within a weapon platform, freeing up the design space to allow very small mobile platforms, which could use swarm tactics — e.g., vast numbers of small, deadly drones acting as one force to attack and destroy much larger forces. Or Iain Banks’ knife missiles, small intelligent objects capable of rapid action when required to slice up a threat.

As with the development of smart bombs and missiles, such systems are both more effective and more capable of pinpoint destruction of enemy forces without harming people or structures nearby. Where today a drone strike may kill its intended target but also kill dozens of nearby civilians, an autonomous assassin drone can identify its target using facial recognition software and neatly take them out without harming a person standing nearby — I’m quite sure these drones already exist, though no one has admitted to them as yet. When both AI and power storage technologies have advanced sufficiently, knife missiles and assassin drones no larger than dragonflies become a real possibility, and countervailing defense systems will require complete sensor coverage and defensive drones to intercept.

As these technologies advance, war becomes less destructive and more imaginable, with opposing forces unable to hide in civilian populations. The house-to-house searches of the Iraq war, so dangerous for US troops, would become omnipresent armed quadcopters picking off identified persons whenever they are exposed to the open air — I have a scene featuring such a drone in Nemo’s World. And nothing says states will have a monopoly on these weapons — stateless organizations like terrorist groups and larger businesses will be able to employ them as well. Imagine the narco-syndicates with assassin drones….

Battles between equally advanced AI-based forces would be faster and less destructive, with control of the airspace and radio communications critical. Drones and mechs might use laser communication to avoid radio jamming, in which case optical jamming — smoke and fog generators — might be employed.

So in the near term, AI-based weaponry, like today’s remote-controlled drones, will tend to amplify capabilities and reduce collateral damage while saving the lives of the operators who will remain safely far away. In the hazier far future, AIs will use strategy and tactics discovered using deep learning (as Google’s winning go program does) to outthink and outmaneuver human commanders. Future battles are likely to be faster and harder for humans to understand, either stalemated or decided quickly. The factors that now determine the outcomes of human-led battles, like logistics chains and the training of troops, may change as command and control are turned over to AI programs — centuries of conventional warfare experience are re-examined with every major development of new weapons, and the first to discover better rules for fighting can win a war before their opponents have time to catch on.

An interesting if now outdated appraisal of future battlefields here.

Next installment: Mil SF and the Real Future of Warfare

The Justice is Too Damn High! – Gawker, the High Cost of Litigation, and The Weapon Shops of Isher

The Weapon Shops of Isher – Thrilling Wonder Stories (1951)

Gawker filed for Chapter 11 bankruptcy to avoid paying the bond which would otherwise be necessary to appeal the $140 million judgment against them in the Hulk Hogan sex tape lawsuit. (It’s a good thing I don’t have to explain that sentence to a time traveler from the last century — would take a long time.) There have been plenty of stories and hot takes on it, so I’ll reach back to discuss what the real problem is — the cost of justice is too damn high.

Meanwhile, the Orlando massacre has been used opportunistically to try to re-open the gun control debate, with Administration and Democratic efforts aimed at diverting outrage from Islamist terrorism to domestic political targets.

A. E. van Vogt’s classic science fiction novel The Weapon Shops of Isher (1951) commented on both issues: the lack of practical access to justice in an increasingly corporate-dominated imperial society and the value of the right to bear arms as a counterweight to a domineering government. While the novel was by today’s standards not very well written, it exploded with ideas and commentary on a corrupt society and individual rights of defense and access to justice for the private citizen. From a review by Jayme Lynn Blaschke:

…[T]he Weapon Shops’ credo could be adopted by the gun lobby today without much fuss: “The right to buy weapons is the right to be free.”

Thousands of years from now, humanity is locked into the solar system, having colonized the planets but able to get no farther without faster-than-light technology. The solar system is held tightly in the iron grip of the Empire of Isher, currently headed up by the young, arrogant and impulsive Empress Innelda. The Empire itself is, however, dysfunctional at best, riddled with graft and corruption. Corporations run rampant, pulling scams and illegal takeovers left and right, gouging the helpless citizenry and government agency alike — no matter that most corporations are owned either wholly or in part by that same government. Enter the Weapon Shops… ready and willing so sell all manner of destructive power dirt cheap to the people who want it. And what power it is! Guns that instantaneously teleport to the owner’s hand with a thought, casting up defensive screens that protect the wielder from any and all power the Empire can bring to bear.

There’s a catch, though. Soldiers, government agents and others in the service of the Empress are not allowed entrance to the shops, much less the ability to buy weapons. Likewise, no one with malice towards the shops and their makers are allowed access either. And just to make sure a “Saturday Night Special” factor never comes into play, the fantastic weapons can only be used for hunting, self-defense or suicide. When turned against another human being or used for crime they will not function. If only the same could be said of today’s street level arsenals!

Today’s United States resembles the Empire of Isher more than a little — a relatively prosperous population, but with layer upon layer of accreted law, regulation, and bureaucracy, with ideals of justice corrupted in practice so that only the wealthiest can afford government-sanctioned courts. Everyone else — even a wealthy and famous citizen like “Hulk Hogan” (real name Terry Bollea) — has to appeal to some organization or government agency for relief. Hogan’s sex tape lawsuit against muckraking new media giant Gawker could not have gone forward without secret financing from billionaire Peter Thiel, who is said to have kicked in $10 million to finance this and other lawsuits against Gawker. As Thiel told the New York Times:

Mr. Thiel added: “I can defend myself. Most of the people they attack are not people in my category. They usually attack less prominent, far less wealthy people that simply can’t defend themselves.” He said that “even someone like Terry Bollea who is a millionaire and famous and a successful person didn’t quite have the resources to do this alone.”

Mr. Thiel said that he had decided several years ago to set his plan in motion. “I didn’t really want to do anything,” he said. “I thought it would do more harm to me than good. One of my friends convinced me that if I didn’t do something, nobody would.”

Mr. Thiel has donated money to the Committee to Protect Journalists and has often talked about protecting freedom of speech. He said he did not believe his actions were contradictory. “I refuse to believe that journalism means massive privacy violations,” he said. “I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

Plenty of ink has been spilled on this verdict, mostly by writers for publications afraid that billionaires will crush media outlets that dare to offend them. But the real problem highlighted is the lack of justice for everyone else. Gawker had already willfully trampled on the privacy rights of hundreds of citizens in a manner that might easily have resulted in damage awards had any of those victims had the financial resources to pursue claims against it in the court system. But none did, and the abuse of privacy and copyright by clickbait publications like Gawker had become a highly-profitable industry, selling ads for thousands of articles that more responsible media would not have touched for legal reasons.

This is not unlike the “tragedy of the commons” seen in junk calling — a small burden on every phone customer converted to big bucks for the junk callers through mass violation of both good manners and the Do Not Call Registry law. And similarly, there is a call for government regulation — to create an agency to get justice for the little guy when the court system is impractical. In Britain, schemes to create arbitration agencies that would reduce costs to all parties in defamation complaints are being discussed, with the goal of allowing people of more modest means to pursue valid complaints while reducing costs to the press. In the US, there is no similar movement, although anti-SLAPP (Strategic Lawsuit Against Public Participation) laws exist in some states to allow targets of lawsuits by well-funded interests to have them dismissed more easily — but there is still little assistance for either plaintiffs or defendants in civil court.

In civil cases, most individuals are forced to represent themselves, as in this case from “We don’t need fewer lawyers. We need cheaper ones,” an article by Martha Bergmark of Voices for Civil Justice:

Unable to afford representation, more Americans are going to court alone, and they’re losing. In 2014, a Louisiana woman, J., landed in court after a dispute with her landlord over a $25 parking fee. J., 52, was suffering from cancer and did not have an attorney. The court ruled against her and ordered her to vacate her home within 24 hours.

J.’s case, which was later taken on by Southeast Louisiana Legal Services, sounds extreme, but for someone who can’t afford legal counsel, the outcome isn’t surprising. The sad reality is that many Americans facing the loss of a home, family or livelihood are going it alone in civil court, and they’re losing.

In well over two-thirds of critical cases in America’s civil courts, people appear without a lawyer, even though the stakes are often just as high as in criminal proceedings. Many people suffer crushing losses in court not because they’ve done something wrong, but simply because they don’t have legal help….

In 70 to 98 percent of cases in America’s civil courts today, one or both parties are not represented by a lawyer. One report found that civil legal aid programs must turn away almost two-thirds of the people who seek their assistance in critical civil cases, despite research showing that in many such cases, access to legal help makes all the difference. In evictions, for example, two-thirds of tenants who go to court without a lawyer lose their homes, while two-thirds of those represented by an attorney are able to keep them. In complex areas of the law, legal help is essential to enable people to understand and defend their rights. But legal help has become so expensive — about $200 to $300 an hour on average and drastically higher at the largest law firms – that it’s unaffordable, not just for those struggling to make ends meet, but even for most middle-class Americans.

There have been some efforts at reform in civil courts. CLASP (Center for Law and Social Policy) outlines the civic legal aid system and some efforts to assist defendents representing themselves in court:

Civil legal aid in the United States is provided by a large number of
separate and independent staff-based service providers funded by a variety of sources. The
current overall funding is approximately $1.34 billion. The largest element of the civil legal aid
system is comprised of the 134 programs that are funded and monitored by LSC…. there are a variety of other sources, including local governments, other federal government sources, the private bar, United Way, and private foundations.

Over the last 12 years, the civil legal aid system has begun in earnest to utilize innovations in technology to improve and expand access to the civil justice system. As a result, low-income persons have access to information about legal rights and responsibilities and about the options and services available to solve their legal problems, protect their legal rights, and promote their legal interests. Technological innovation in virtually all states has led to the creation of Web sites that offer community legal education information, pro se legal assistance, and other information about the courts and social services. Most legal aid programs now have Web sites with over 300 sites.

All states have a statewide website, most of which also contain information useful both to advocates and clients. Most of these statewide web sites were made possible by the Technology Initiative Grants program of LSC. All of these state sites can be accessed through http://www.lawhelp.org. Half of the sites are hosted on one platform operated by Pro Bono net. Dozens of national sites provide substantive legal information to advocates; other national sites support delivery, management, and technology functions. Many program, statewide, and national websites are using cutting-edge software and offering extensive functionality. I-CAN projects in many states use kiosks with touch-screen computers that allow clients to produce court-ready pleadings and access to other services, such as help with filing for the Earned Income Tax Credit. Video conferencing is being used in Montana and other states to connect clients in remote locations with local courthouses and legal services attorneys.

In criminal cases, indigent defendants are appointed counsel from a public defender’s office, usually an agency of the state. These attorneys are of uneven quality and assigned too many cases, often resulting in less-than-adequate defenses for the poor who rely on them. Then other non-profit organizations sue the states for providing insufficient resources for public defenders, and the game is on — more lawyers contend to paper over the real problem of a costly and antiquated justice system by calling for more tax money instead of reforming the system’s processes to save money by using new technologies and streamlined procedures. The same phenomenon has left us with failed urban schools at very high cost, and inflated costs and lowered quality in every government-run or heavily-regulated service. This absurdity reaches its peak in California’s death penalty expenses — prosecution in a death penalty case costs about $1.1 million more than a similar life sentence case, and the state pays $90 thousand yearly per death row inmate in incarceration costs, plus another $85 thousand yearly in public defender costs to deal with ongoing mandatory appeals. Legislators and judges created a slow and complex process, then both prosecution and defense attorneys are funded with taxpayer money — justice is delayed for decades and both victim’s families and perpetrators get no closure.

Alternative dispute resolution methods — including regulatory agencies, class-action entrepreneurs, and binding arbitration of consumer disputes — have been created to deal with the impracticality of enforcing the law and contracts via the court system. None of these are entirely satisfactory.

Regulatory agencies like insurance commissions, banking regulators, and the alphabet Federal agencies (FTC, FDA, EEOC, DoL, etc.) tend to be captured by the industry they regulate, and the revolving door providing cushy lobbying jobs for retired regulators gives them an incentive to rule for the most powerful. These agencies can perform a valuable role in mediating and screening out groundless complaints, but the higher the level of government they operate at and the larger the industry revenues involved, the less likely they are to be approachable and helpful for average consumers. State-level health insurance regulators, for example, vary widely in quality, but in many cases went to bat for consumers to rectify the worst health insurance company abuses, while the Federal takeover of individual health insurance markets via the ACA has left consumers with limited choices. State insurance regulators dare not threaten the few companies remaining in many markets with loss of their licenses.

Class-action lawsuits combine the small grievances of many consumers into one lawsuit against offenders. This is called “mass tort litigation” or “multi-district litigation” (“MDL”). While these suits can result in effective punishment for egregious mass violations of law or contract, more commonly they are settled by big companies regardless of actual guilt as a cost of doing business, and they have created an ecosystem of law firms that extort settlements returning little to the injured and enriching primarily the law firms involved. Judges will occasionally push back when the attorneys from both sides fail to propose much of a return to the supposedly injured parties, but more commonly will accept a token effort while most of the settlement goes to fund the lawyers involved. Elizabeth Chamblee Burch of the law school at U Georgia comments on recent trends in MDL settlements which show widespread self-dealing by plaintiff attorneys:

I’ve spent the better part of the past year and a half analyzing the publicly available nonclass aggregate settlements that have taken place in multidistrict litigation alongside leadership appointments, common-benefit fees, and, where available, recovery to the plaintiffs. This has given me an in-depth look at what’s happening (or has happened) in Propulsid, Vioxx, Yasmin/Yaz, DePuy ASR Hip Implant, Fosamax (2243), American Medical Systems pelvic mesh litigation, Biomet, NuvaRing, and Actos…. This endeavor has been deeply unsettling for a variety of ethical, doctrinal, and systemic reasons…. I had no idea how widespread the problems were or how they had evolved over time from deal to deal until now.

Propulsid appears to be the primogenitor, for all subsequent deals in the data replicated some aspect of its closure provisions. But Propulsid is extraordinarily troubling: 6,012 plaintiffs abandoned their right to sue in court in favor of settling. Only 37 of them (0.6 percent) recovered any settlement money through the physician-controlled claims review process, receiving little more than $6.5 million in total. Lead lawyers, on the other hand, received over $27 million in common-benefit fees through a deal they negotiated directly with the defendant (and had the court approve). Sadly, that’s just the tip of the iceberg…. [R]epeat players on both sides continually achieve their goals in tandem — defendants end massive suits and lead plaintiffs’ lawyers increase their common-benefit fees. But this exchange may result in lower payouts to plaintiffs, stricter evidentiary burdens in claims processing, or higher plaintiff-participation requirements in master settlements.

Even worse is the collusion of tort bar attorneys with state Attorneys General to target entire industries for shakedowns. The first major example was the 1998 Tobacco Master Settlement, where many states and law firms cooperated to extract $billions from tobacco firms, then tried to limit new entrants into the cigarette industry to allow the settling companies to extract enough revenue from addicted smokers to pay the hefty settlement fees. Currently, a similar effort (conspiracy?) is underway to target oil companies and dissenting voices for their failure to warn investors and citizens about the risks of climate change.

So not only is justice through the courts too costly for all but the wealthiest individuals, the system can be systematically abused to extract rents from targeted groups, unjustly enriching certain attorneys and furthering political corruption.

Binding arbitration clauses now appear in most contracts between consumers and businesses. This protects the business against tort bar extortion while in theory allowing a low-cost, streamlined adjudication of consumer claims. The Federal Arbitration Act outlines conditions allowing mandatory arbitration clauses in contracts to supersede class action or other lawsuits in US and most state courts. This was most recently upheld when the Supreme Court overruled a state court ruling and disallowed a class action lawsuit against DirecTV in California:

The decision is consistent with a series of rulings in recent years that have given corporations a legal way to bypass the courts. Company lawyers say arbitration can be a faster, less expensive and fairer way to resolve disputes.

Consumer-rights advocates and plaintiffs lawyers mostly disagree. They say that many consumer complaints, including over unexpected charges and fees, are too small to justify someone going through an arbitration hearing. The DirecTV fee, for example, could be as high as $480. If consumers cannot join a class-action suit, such complaints will go unheard, advocates say.

“This is another troubling day for American consumers who are ripped off by corporate greed and malfeasance, whether it’s a satellite TV system that doesn’t work, unlawful credit card fees or a defective vehicle,” said Harvey Rosenfield, founder of Consumer Watchdog, and one of the lawyers who represented consumers in the litigation. “The Supreme Court has taken away Americans’ only right to obtain justice: their day in court.”

Of course it is also impractical for consumers to individually dispute corporate actions in court, and the real skirmish here is between class-action lawyers (who want more of a cut in the settlement proceeds) and the companies who prefer arbitration (who want lower costs and predictable remedies.) Even arbitration is impractical for small consumer injuries — which is why the remedy of taking one’s business elsewhere is so important, and why use of regulation to limit consumer choice and prop up monopolies in utility and telecomm sectors is so damaging to consumers, who end up paying more and have little recourse for bad service and abusive charges. And while it’s true arbitration schemes will often favor the big firms who select the arbitration agencies and pay the costs, the tort bar and big companies also cooperate to reach settlements that favor them jointly and neglect compensation for the injured parties.

The impractically-high cost of the court system has been a problem for decades. As early as 1983, thoughtful observers in a New York Times story worried that courts were too costly and were accessible only to the wealthy, and that the burden of slow and complex litigation was too great:

Experts as diverse as Chief Justice Warren E. Burger, Attorney General William French Smith, Griffin B. Bell, the Attorney General in the Carter Administration, and Derek Bok, the president of Harvard University and former dean of the Harvard Law School, argue that the country suffers from too many laws, too many lawsuits, too many legal entanglements and, at least in Mr. Bok’s view, too many lawyers.

While such complaints are not new, they are being voiced with increasing urgency by many pillars of the legal establishment as well as by outside critics.

In his most recent of many complaints about the Supreme Court’s swollen caseload, a May 17 speech to the American Law Institute, Chief Justice Burger declared that the nation was plagued “with an almost irrational focus — virtually a mania – on litigation as a way to solve all problems.”

Mr. Bok, in his annual report to the Board of Overseers of Harvard College, said the United States had “developed a legal system that is the most expensive in the world yet cannot manage to protect the rights of most of its citizens.”

Warnings about increased litigiousness alternate with expressions of concern that most citizens cannot afford to hire lawyers to press legitimate claims and defenses against, for example, landlords and creditors.

Lloyd N. Cutler, one of Washington’s most prominent corporate lawyers, has written of large law firms like his own: “The rich who pay our fees are less than 1 percent of our fellow citizens, but they get at least 95 percent of our time. The disadvantaged we serve for nothing are perhaps 20 to 25 percent of the population and get at most 5 percent of our time. The remaining 75 percent cannot afford to consult us and get virtually none of our time.”

Thomas Ehrlich, a former head of the Federal program of legal assistance to poor people and now provost of the University of Pennsylvania, says that because “private wealth is the primary criterion for access to the legal system,” justice often eludes the poor.

But Mr. Bok stresses that “the wealthy and the powerful also chafe under the burden” of regulations, delays, legal uncertainties and manipulations. Some landlords, for example, complain that federally subsidized legal aid lawyers use technicalities to help poor tenants avoid eviction while they refuse to pay rent.

The chorus of concern about justice in America masks great diversity in the views of the critics, whose diagnoses often reflect opposing political views and whose prescriptions for reform often conflict.

For example, the contention by Chief Justice Burger and others that the legal system is being overwhelmed by excessive litigiousness has been questioned by scholars and others who are wary of any proposals to make it harder for individuals to bring lawsuits.

Marc Galanter, a University of Wisconsin law professor specializing in social research on the legal system, says overblown rhetoric about the increase in litigation distracts attention from more severe problems, such as the undue complexity that makes the system so costly and incomprehensible to lay people.

But reform efforts were intermittent, and overwhelmed by the incentives in the system to pass increasingly long and complex laws authorizing agencies to write even more regulations to micromanage every aspect of life. Improvement in some areas, like limitations on tort liability damage awards and increasing use of private arbitration in commercial contracts, were more than countered by production of new and more complex regulations by a bureaucracy needing to keep its staff busy by identifying more targets to regulate. Thirty-odd years later, the problem is worse, and the sense of powerlessness against monopoly services, schools, and governments has reached the boiling point.

Businesses are weighed down by the costs of litigation and the efforts to forestall it, like those undecipherable product manuals heavy with warnings meant to defend against lawsuits. Liability costs in the US are much higher than in most competitive countries. This chart from the US Chamber of Commerce’s Institute for Legal Reform’s June 2013 update “International Comparisons of Legal Costs” shows comparative costs as a percent of GNP for the US versus Europe:

Liability Costs, US vs Europe — Institute for Legal Reform

The “Litigation Cost Survey of Major Companies,” a statement submitted by Lawyers for Civil Justice to the 2010 Conference on Civil Litigation, cited the outsized cost of liitigation to US companies:

Rule 1 of the Federal Rules of Civil Procedure frames the purpose of the Rules: “the just, speedy and inexpensive determination of every action and proceeding.” Every day, corporate and defense counsel must confront the fact that although well‐intentioned, the Rules are falling far short of this goal. The reality is that the high transaction costs of litigation, and in particular the costs of discovery, threaten to exceed the amount at issue in all but the largest cases….

Key Survey Findings

Litigation costs continue to rise and are consuming an increasing percentage of corporate revenue. Litigation transaction costs on average and as a percent of revenue have risen substantially over the past nine years. The amounts of judgments and settlements are not included in these figures.

• The average outside litigation cost per respondent was nearly $115 million in 2008, up 73
percent from $66 million in 2000. This represents an average increase of 9 percent each year.

• For the 20 companies providing data on this issue for the full survey period, average outside
litigation costs were $140 million in 2008, an increase of 112 percent from $66 million in 2000.

• Between 2000 and 2008, average annual litigation costs as a percent of revenues increased 78
percent for the 14 companies providing data on average litigation costs as a percent of
revenues for the full survey period.

• Increases in hourly rates do not appear to be driving the increase in litigation costs, as the
available data show relatively little change in outside legal fees over time.

The U.S. litigation system imposes a much greater cost burden on companies than systems outside the United States. As a percent of revenue, multi‐national company respondents to the survey spend a disproportionate amount on litigation in the United States relative to their expenditures in foreign jurisdictions. Depending on the year, relative U.S. costs were between four and nine times higher than non‐U.S. costs (as a percent of revenue). This disparity will inevitably influence decisions by corporations about where to invest their resources. Global competition for foreign investment is increasing, and the changing dynamics of the global economy are affecting the United States’ ability to remain a leader in this area. The International Trade Administration at the U.S. Department of Commerce has found that “many foreign investors view the U.S. legal environment as a liability when investing in the United States.”

What could improve this situation? Streamlined courts using modern technology to gather facts and judge cases. Smart contracts and online arbitration services for smaller cases. A thorough overhaul of the antiquated and expensive court system with its well-paid lawyers and staff to improve productivity and speed while lowering costs. Simplification of laws and a pruning of regulatory agencies to the minimum required to maintain a just society would also help.

The Weapon Shops of A. E. van Vogt’s novel were a long-lasting counterweight to oppressive governments, providing both smart weapons and low-cost courts. When written in 1951, smart guns and AI judges were far-future ideas, but real versions of both are likely in the near future. Current smart weapons are still impractical and too unreliable and complex for acceptance (when seconds count, do you want to find out your gun’s batteries have died?) but it won’t be long before personal weapons usable only by the owner and smart enough to detect improper use become available.

The book’s view of a complex society saved from tyranny by multiple power centers and the accessibility of both personal defense weapons and low-cost courts is more relevant now than when it was written. A few excerpts — first, a naive shop owner discovers how little he can do when he has been treated badly by a bank and tries to represent himself in court:

His high sense of duty rightly done lasted until mid-afternoon, when the bailiff from Ferd came to take over the shop.

“But what—” Fara began.

The bailiff said, “The Automatic Atomic Motor Repair Shops, Limited, took over your loan from the bank and are foreclosing.”

“It’s unfair,” said Fara. “I’ll take it to court.” He was thinking dazedly: If the empress ever learned of this, she’d… she’d–

The courthouse was a big, gray building; and Fara felt emptier and colder every second, as he walked along the gray corridors. In Glay, his decision not to give himself into the hands of a lawyer had seemed a wise act. Here, in these enormous halls and palatial rooms, it seemed the sheerest folly.

He managed, nevertheless, to give an account of the criminal act of the bank in first [loaning] the money, then turning over the note to his chief competitor, apparently within minutes of his signing it. He finished with, “I’m sure, sir, the empress would not approve of such goings-on against honest citizens.”

“How dare you,” said the cold-voiced person on the bench, “use the name of Her Holy Majesty in support of your own gross self-interest?”

Fara shivered. The sense of being intimately a member of the empress’s great human family yielded to a sudden chill and a vast mind-picture of the ten million icy courts like this, and the myriad malevolent and heartless men — like this — who stood between the empress and her loyal subject, Fara. He thought passionately: If the empress knew what was happening here, how unjustly he was being treated, she would–

Or would she? He pushed the terrible doubt out of his mind — came out of his reverie with a start, to hear the [judge] saying: “Plaintiff’s appeal dismissed, with costs assessed at seven hundred credits, to be divided between the court and the defense solicitor in the ratio of five to two. See to it that the appellant does not leave until the costs are paid. Next case.”

Fara makes his way to the local Weapon Shop, where he is transported to a different kind of court, and is told to get in line:

The man, a heavy-faced, blue-eyed young chap of around thirty-five, looked at him curiously: “You must know why you’re here,” he said. “Surely, you wouldn’t have been sent through here unless you had a problem of some kind that the Weapon Shop courts will solve for you; there’s no other reason for coming to Information Center.” Fara walked on because he was in the line now, a fast-moving line that curved him inexorably around the machine; and seemed to be heading him toward a door that led into the interior of the great metal structure. So it was a building as well as a machine. A problem, he was thinking, why of course, he had a problem. A hopeless, insoluble, completely tangled problem so deeply rooted in the basic structure of Imperial civilization that the whole world would have to be overturned to make it right. With a start, he saw that he was at the entrance. He thought with awe: In seconds he could be committed irrevocably — to what?

After showing the reader an example of the independent Weapon Shops courts in operation, the author hints that they enforce their judgments by directly taking from the bank accounts of the wrongdoers — the Weapon Shops operate in symbiosis with the government of the day, no matter what its form, by using advanced technology to rebalance the scales of justice. The current government, the Empire of Isher, is run by the willful and arrogant Empress Innelda, who plans to use a new technology to destroy the Weapon Shops and gain full control of her people. Some of her officers, seeing the danger in undermining one of the balancing pillars of Isher society, refuse to participate, and Innelda confronts one officer arrested for desertion:

At half past ten, free of urgent correspondence, she had the officer-deserter brought in. He was a man of thirty-three according to his file, country born and holding the rank of major. He came in; a faint cynical smile on his lips, but his eyes looked depressed. His name was Gile Sanders. Innelda studied him gloomily. According to his file he had three mistresses and had made a fortune out of a peculiar graft involving army purchases. It was a fairly typical case history. And the part that was difficult to understand was why he, who had so much, had given it all up. She asked the question earnestly. “And please,” she said, “do not insult me by suggesting that you were concerned with the moral issue of the war. Tell me simply and plainly why you gave up all your possessions for dishonor and disgrace. In one act you disinherited yourself. The very least that can happen to you is that you’ll be sent to Mars or Venus permanently. Were you a fool or a coward or both?”

He shrugged. “I suppose I was a fool.” His feet fumbled nervously over the floor. His eyes did not evade her direct stare, but his answer left her dissatisfied. After ten minutes she had got no real explanation out of him. It was possible that the profit and loss motivation had not influenced his decision.

She tried a new approach. “According to your file,” she said, “you were notified to report to building eight hundred A and, because of your rank, it was explained to you that at last a method had been found to destroy the weapon shops. An hour later, after having burned your private papers, you left your office and took up residence in a seaside cottage which you had purchased secretly — you thought — five years ago. A week later, when it was clear that you did not intend to do your duty, you were arrested. You have been in close confinement ever since. Is that picture fairly correct?”

The man nodded but said nothing. The empress studied him, biting her lips. “My friend,” she said softly at last, “I have it in my power to make your punishment anything I desire. Anything. Death, banishment, commutation—” she hesitated— “reinstatement.”

Major Sanders sighed wearily. “I know,” he said. “That was the picture I suddenly saw.”

“I don’t understand.” She was puzzled. “If you realize the potentialities of your act, then you were very foolish.”

“The picture,” he said in a monotone, as if he had not heard her interruption, “of a time when someone, not necessarily yourself, would have that power without qualification, without there being anywhere to turn, without alleviation, without — hope.”

She had her answer. “Well, of all the stupidity!” said Innelda explosively. She leaned back in her chair, momentarily overcome, drew a deep breath, then shook her head in irritation. “Major,” she said gently, “I feel sorry for you. Surely your knowledge of the history of my family must have told you that the danger of misuse of power does not exist. The world is too big. As an individual I can interfere in the affairs of such a tiny proportion of the human race that it is ridiculous. Every decree that I issue vanishes into a positive blur of conflicting interpretations as it recedes from me. That decree could be ultimately mild — it would make no difference in the final administration of it. Anything, when applied to eleven billion people, takes on a meaningless quality that is impossible to imagine unless you have studied, as I have, actual results.”

She saw with astonishment that her words had not touched him. She drew back, offended. It was all so crystal clear and here was one more obstinate fool. She restrained her anger with an effort. “Major,” she said, “with the weapon shops out of the way we could introduce steadying laws that could not be flouted. There would be more uniform administration of justice because people would have to accept the judgment of the courts, their only recourse being appeals to the higher courts.”

“Exactly,” said Sanders. That was all. His tone rejected her logic. She studied him for a long moment, all the sympathy gone from her. Then she said bitterly, “If you’re such a firm believer in the Weapon Shops, why didn’t you protect yourself by going to them for a defensive gun?”

“I did.”

She hesitated; then asked coldly, “What was the matter? Did your courage fail you when it came to the point of using it to defend yourself from arrest?” Watching him, she knew she shouldn’t have said that. It left her open to a retort which, she realized, might be devastating. Her fear was justified.

Sanders said, “No, Your Majesty. I did exactly what some of the other — uh — deserters did. I took off my uniform and went to a weapon shop, intending to buy a gun. But the door wouldn’t open. It appears that I am one of the few officers who believe that the Isher family is the more important of the two facets of Isher civilization.” His eyes had been bright as he spoke. Now they grew depressed again. “I am,” he said, “in exactly the position you want to put everybody into. I have no way to turn. I must accept your law; must accept secret declarations of war on an institution that is as much a part of Isher civilization as the House of Isher itself; must accept death if you decree it, without a chance to defend myself in open battle. Your Majesty,” he finished quietly, “I respect and admire you. The officers who deserted are not scoundrels. They were merely confronted with a choice and they chose not to participate in an attack on things as they are. I doubt if I could put it more honestly than that.”

She doubted it too. Here was a man who would never understand the realistic necessity of what she was doing. After she dismissed him she noted his name in her check-file, commenting that she wanted to hear the verdict of his court-martial…. She realized that it was now time to go to the Treasury Department and hear all the reasons why it was impossible to spend more money. With a tired smile, she went out of the study and took a private elevator up to the fiftieth floor.

After writing the Weapon Shops stories, A. E. van Vogt moved to Los Angeles where he met L. Ron Hubbard in 1945 and briefly headed up Hubbard’s Dianetics organization, which later evolved into the Church of Scientology. His interest in overarching meta-systems to explain everything was apparent in his writings, which as a result became less readable. Philip K. Dick cited him as an influence — “Van Vogt influenced me so much because he made me appreciate a mysterious chaotic quality in the universe which is not to be feared.”

The impunity with which Gawker operated for years while stepping on the privacy rights of people for profit is just one symptom of the inability to get justice at a reasonable price. The simmering resentments of citizens made unknowing scofflaws while going about their lives (see Radley Balko’s Reason piece, “We’re All Felons, Now”) and the increasing regulatory overhead to start and run a small business are slowing growth and damaging the careers of young people who have been trained to ask permission before trying anything new.

Meanwhile, the Party of Government, like Empress Innelda, sees only good in its efforts to limit the right of self-defense and increase the revenue and authority of government at every level. They mean well, after all, and this chaos of unmanaged freedom and unregulated commerce must give way to those who know what’s best for all the little people. America was a good idea once, but it’s too dangerous to continue the experiment started in 1776….

—

Walter Olson’s Overlawyered: Chronicling the High Cost of Our Legal System is a good source for news on justice system excesses and the negative side-effects of its high cost.

More reading on other topics:

Update: California High-Speed Rail Nearly Dead
Regulation Strangling Innovation: Planes, Trains, and Hyperloop
Captain America and Progressive Infantilization
The Great Progressive Stagnation vs. Dynamism
FDA Wants More Lung Cancer
Corrupt Feedback Loops: Public Employee Unions
Jane Jacobs’ Monstrous Hybrids: Guardians vs Commerce
Death by HR: How Affirmative Action is Crippling America
Death by HR: The End of Merit in Civil Service
Death by HR: History and Practice of Affirmative Action and the EEOC
Civil Service: Woodrow Wilson’s Progressive Dream
Bootleggers and Baptists
Corrupt Feedback Loops: Justice Dept. Extortion
Corrupt Feedback Loops, Goldman Sachs: More Justice Dept. Extortion
Death by HR: The Birth and Evolution of the HR Department
Death by HR: The Simple Model of Project Labor
Levellers and Redistributionists: The Feudal Underpinnings of Socialism
Sons of Liberty vs. National Front
Trump World: Looking Backward
Minimum Wage: The Parable of the Ladder
Selective Outrage
Culture Wars: Co-Existence Through Limited Government
Social Justice Warriors, Jihadists, and Neo-Nazis: Constructed Identities
Tuitions Inflated, Product Degraded, Student Debts Unsustainable
The Morality of Glamour

On Affirmative Action and Social Policy:

Affirmative Action: Chinese, Indian-Origin Citizens in Malaysia Oppressed
Affirmative Action: Caste Reservation in India
Diversity Hires: Pressure on High Tech<a Title IX Totalitarianism is Gender-Neutral
Public Schools in Poor Districts: For Control Not Education
Real-Life “Hunger Games”: Soft Oppression Destroys the Poor
The Social Decay of Black Neighborhoods (And Yours!)
Child Welfare Ideas: Every Child Gets a Government Guardian!
“Income Inequality” Propaganda is Just Disguised Materialism
Orlando and Elite Bigotry: Come Out as an American
Progressive Displacement and Social Media: Gun Control Edition

The greatest hits from SubstrateWars.com (Science Fiction topics):

More reading on the military:

US Military: From No Standing Armies to Permanent Global Power
US Military: The Desegration Experience
The VA Scandals: Death by Bureaucracy

Review: The Sadist’s Bible by Nicole Cushing, at Tangent Online

The Sadist’s Bible, by Nicole Cushing — Amazon

Tangent Online has published my review of The Sadist’s Bible by Nicole Cushing. In summary:

Trigger warning: extreme lesbian sexual imagery, torture, blasphemy. Unlike traditional horror, her writing relies on explicit imagery; where a traditional horror writer would leave the disgusting details to the reader’s imagination, Cushing dwells on them, in the splatterpunk subgenre’s tradition…

If you like this sort of thing — sexual torture and mutilation, dwelling on the disgusting and profane — Cushing’s writing is powerful. But stories with no heart should come with warning labels.

Full review here.

Sons of Liberty vs. National Front

Sons of Liberty

[First published on Sarah Hoyt’s blog 3-7-2016, with excellent comments]

I’ve tried to concentrate on the next book, but events conspire to suck me into the current mess re Trump. Like a lot of observers, so long as he was a sideshow I could see his almost-daily newsmaking as colorful and perhaps useful in allowing others to speak more freely some of the things that needed to be spoken. By doing so he was expanding the Overton Window and giving a voice to sentiments held by large segments of the population that had been suppressed by the MSM, like nativism and the desire to see immigration laws enforced.

But he’s primarily a demagogue who tells the formerly voiceless what they want to hear and promises to defend them against the dangers the privileged “respectable” politicians want to cover up while they continue business as usual — managing the decline of the over-regulated economy and spending the tax money of citizens to bring in new dependent populations who will presumably vote to keep them in place. Having mined this vein of formerly-voiceless anger at the sale of their country to outsiders, Trump has used it to gain the lead in the Republican race despite having no apparent grasp of most policy issues and some frighteningly authoritarian instincts. He has been called a Jacksonian man on a horse, which has some resonance with Osama bin Laden’s remark: “When people see a strong horse and a weak horse, by nature, they will like the strong horse.” Trump’s rise has opportunistic pols and job-seekers endorsing him as a strong horse who can take charge.

The US was founded by several different groups from diverse parts of Britain, and greatly expanded by immigration from Europe. There was no control over immigration — everyone was welcome to pay their own way here, try to survive and fit in, succeed or fail as their abilities and luck allowed. Many returned to their native lands, but most worked hard and helped to settle the land, build the railroads, and grow the cities. In the mid-1800s, just before the Civil War, large numbers of Catholic immigrants from Ireland and Italy flooded Eastern cities and were seen as a threat. The Know-Nothing Party gained power in some Northern cities on a platform of controlling immigration of Catholics, who were thought to be culturally unsuited to freedom and likely to take commands from their corrupt and foreign Pope. Riots between Catholics and Know-Nothings erupted; 22 died in a riot in Louisville, Kentucky before a contested election.

Lincoln needed the support of the remaining Know-Nothings in the election of 1856, when Republicans began to pick up Know Nothing support to oppose the Democrats who supported slavery. But in a private letter, he said:

I am not a Know-Nothing — that is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read ‘all men are created equal, except negroes and foreigners and Catholics.’ When it comes to that I should prefer emigrating to some country where they make no pretense of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

These nativist movements were defused by the tensions over slavery and the approaching Civil War, and the Know-Nothing Party faded after 1856. Irish took over the police forces of most Northern cities, and Democratic political machines used the Irish and Italian immigrants as a base to take over most big city governments. Over generations, these supposedly bloc-voting groups splintered, and the rough and ready disciplines of capitalist employment encouraged integration.

Immigration began to be restricted after a flood of Chinese workers to the West. Congress passed the Chinese Exclusion Act in 1882 which targeted a single ethnic group by specifically limiting further Chinese immigration. In 1907, a “Gentleman’s Agreement” with the Japanese government limited visas for immigration from Japan. Restrictions on the number of immigrants from Southern and Eastern Europe were imposed in 1924, and in 1932-33 immigration was nearly shut off. Local and state authorities, assisted by Hoover’s and then FDR’s Labor Department, coerced repatriation and deportation of between 500,000 and 2 million Mexican Americans, mostly citizens, in the Mexican Repatriation.

In 1965 the immigration law was rewritten, with tight quotas for Eastern and Western hemispheres. Separately, “family class” immigrants were favored outside of the quota system, so one immigrant could settle then sponsor others, who sponsored others, and so forth, allowing entire culturally foreign communities to immigrate over time to create enclaves — which slowed integration into American culture. While intended to be humane, family class preferences did not choose the immigrants that would be most likely to be valuable additions to the country and its economy.

In recent years, immigration has become a political third rail. One side views the US as “social worker to the world” — just as they see it as the duty of government to supply housing, food, and healthcare for poor people in the US, they see a moral duty to accept poor people from around the world, especially refugees from war-torn countries. The other side is partly motivated by the remaining nativist impulse — keep the special privileges of being a citizen for current citizens and deny outsiders work and social welfare spending to preserve these benefits for natives.

As a part-time economist, I support free trade generally, and would like to see a reformed immigration policy that takes advantage of the attractiveness of the US to recruit the best of the immigrant candidates. The current system blocks the immigrants most ready to contribute and tolerates illegals from Mexico and points south. The US loses many highly-beneficial immigrants to Canada and Australia and other countries that are less difficult about legal immigration for the high-skilled, and allows in large numbers who are unskilled and likely to be dependent on social welfare services for at least two generations. The H-1B visas enable employers to take advantage of highly skilled immigrants and use their low salaries to keep down the salaries of US citizen engineers and scientists. The system is rotten from top to bottom and badly needs a thorough reform.

It’s also important that those new immigrants accept the guiding principles of the Constitution and quickly integrate into the polity of free individuals and voluntary associations that allows the US to contain multiple religions and cultures to the benefit of all. There is nothing wrong with screening immigrant candidates for beliefs inconsistent with the principles of Americanism — specifically that no government will enact into law specific religious precepts. Thus devout Muslims who are Islamists (believe government must be Islamic and implement Sharia law) should be barred. It is not a violation of any citizen’s rights to ask all candidates for citizenship to pledge to uphold the Constitution and refrain from working to impose their beliefs on others. This point of view would have been seen as mainstream as little as one generation ago, but now is considered politically incorrect by our coastal ruling class.

Donald Trump’s rise is due to the backlash from the bipartisan failure to do anything about the failure of immigration policy. His promise to build a wall and deport the millions of Mexican illegals is viewed as outrageous by the same Democrats who idolize FDR — that heroic New Deal president who started Euro-style social insurance schemes, continued deportation of as many as 2 million Mexicans (some of them legal citizens), refused most Jewish refugees, and interned over 110,000 Japanese-origin US citizens during World War II. Trump’s suggested immigration and trade policies closely resemble FDR’s!

We the People – by Sarah Hoyt

Trump has opened up discussion and encouraged speech from reasonable nativists, but also from formerly muzzled white supremacists and bigots of all kinds. His appeal is similar to the National Front in France: he has attracted nativists and middle and lower class people who have felt shut out by “respectable” social democratic parties. To analyze the commenters of a blog which shall go unlinked, responding to Sarah Hoyt:

[Sarah Hoyt] “Whether we were born elsewhere or here, Americans — those of us who are proud of the name — are rebels, revolutionaries, something new under the sun: a people who believe people should be equal in their right to life, the right to liberty, the right to pursue their happiness undisturbed by either inimical neighbors or oppressive “betters.””

Equality and Egalite are French Enlightenment abstractions designed to finish off the last of the Church, and to rationalize the totalitarian impulses and actions of The Mob . . . people like Sarah Hoyt.

Equality is a satanic concept and provides, in practice, the exact opposite of equity and fairness. Without ‘equality’ people like Sarah Hoyt don’t become successful, much less famous. They become instead what they merit, which isn’t much. They damn well know it, too, which is why they’re so full of vitriol — afraid of losing their vast, unearned privileges. Which they are going to lose, anyway.

Equality, like Women’s ‘liberation’, permits Sarah and her fellow traitors to crush their betters — yes, they DO have betters, and boy do they HATE HATE that — and take over nations under cover of helping the downtrodden and oppressed’. That’d Themselves and their friends, in case you’ve been asleep the past half-century.

Think you have Equality? Sistahood Sarah threatens to punch a mere male, and will not be punished if she does. Try punching Little Miss Virtue Signal and see what happens.

Liars and cowards selling their popular, self-serving lies, while patting themselves on the back for being Brave Rebels who are standing up to The Evil (non-existent) Patriarchy.

This is an interesting mix of “truthiness” and bigotry. Sarah is American by belief and choice, accused of being a “traitor” by people who think their ancestry and presence on the landmass of the US since birth make them guardians of the US nation-state. Aside from the incoherence (how can she be a traitor if she is not a member of the tribe?), the commenter attempts to other her by lumping her in with the virtue-signalling SJWs.

This commenter is sadly unAmerican in his resort to racist and sexist issue framing, completely misapplied to Sarah Hoyt. It’s unfortunate that the loud outpourings of these people, few in number but egging each other on in the fever swamps of sites like this blog-which-shall-go-unlinked, can so easily be used by progressive scribblers elsewhere to tar all dissenters from the Progressive program of thought control as racists, misogynists, and neo-Nazis (or worse!)

Which brings up a valid point these people have made: if Americanism is a bundle of individualist beliefs and attitudes, what about those with deep roots in the US, born and raised for generations there, who don’t accept those beliefs? If tolerance of difference is a watchword, then should those who don’t tolerate differences be suppressed or removed?

Our answer starts with looking at how we got to this point, where government has expanded and encroached on the private sphere of business and social organizations to the point where private action is viewed with suspicion, and a significant percentage of the population believes democracy means subjecting every action of business to the political process and regulation.

Americans were formerly known for their commitment to private charity and self-help organizations; the America of Alexis de Tocqueville in 1835 teemed with churches and private social organizations and lacked the inherited privilege and concentrations of unearned wealth and power seen in Europe. But he worried that “… a despotism under a democracy could see ‘a multitude of men’, uniformly alike, equal, ‘constantly circling for petty pleasures’, unaware of fellow citizens, and subject to the will of a powerful state which exerted an ‘immense protective power’. Tocqueville compared a potentially despotic democratic government to a protective parent who wants to keep its citizens as ‘perpetual children’, and which doesn’t break men’s wills but rather guides [them], and presides over people in the same way as a shepherd looking after a ‘flock of timid animals’. He also wrote that ‘The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.'”

He was prescient. We have arrived at that state. Half the US population believes they are victims of the “malefactors of great wealth” demonized by FDR; FDR’s experiment in Democratic Socialism was derailed by his own nominally Democratic-controlled Congress by 1938, but enough remained of his expanded regulation of business and greatly-increased size of the Federal government to send the US down the road to permanent bureaucracy and a Deep State that constantly seeks to expand its power and resources. Eisenhower warned of the “Military-Industrial Complex,” but it’s no longer just defense contractors in league with Congress to pork-barrel spend, it’s a much larger group of special interests influencing legislation and regulation to give themselves protection from competition as well as direct access to public money. As governments have increased their control of all sectors of the economy, growth has slowed, prices have risen, and young people have found themselves in debt to an education complex which graduates them with few useful skills, then forced to buy health insurance at higher-than-market prices to subsidize wealthier old people.

Americans are largely still believers in the principles of Americanism — live and let live, equality under the law, free enterprise, and a civil society that ideally doesn’t discriminate by color or sex. But several generations of public schools, originally introduced on a Prussian model and intended to mold a population to more uniformly accept direction as cogs in a military-industrial machine, have weakened their resistance to collectivist thought. The Wikipedia entry on the Prussian education system says:

Early 19th-century American educators were also fascinated by German educational trends. In 1818, John Griscom gave a favorable report of Prussian education. English translations were made of French philosopher Victor Cousin’s work, Report on the State of Public Education in Prussia. Calvin E. Stowe, Henry Barnard, Horace Mann, George Bancroft and Joseph Cogswell all had a vigorous interest in German education. The Prussian approach was used for example in the Michigan Constitution of 1835, which fully embraced the Prussian system by introducing a range of primary schools, secondary schools, and the University of Michigan itself, all administered by the state and supported with tax-based funding. However, e.g. the concepts in the Prussian reforms of primordial education, Bildung and its close interaction of education, society and nation-building are in conflict with some aspects of American state-sceptical libertarian thinking.

In 1843, Horace Mann traveled to Germany to investigate how the educational process worked. Upon his return to the United States, he lobbied heavily to have the “Prussian model” adopted. In 1852, Mann was instrumental in the decision to adopt the Prussian education system in Massachusetts. Governor Edward Everett of Massachusetts instituted a mandatory education policy based on the system.[33] Mann persuaded his fellow modernizers, especially those in the Whig Party, to legislate tax-supported elementary public education in their states. New York state soon set up the same method in 12 different schools on a trial basis. Most northern states adopted one version or another of the system he established in Massachusetts, especially the program for “normal schools” to train professional teachers.

Americans were especially impressed with the Prussian system when they set up normal schools to train teachers, because they admired the German emphasis on social cohesion. By the 20th century, however, the progressive education movement emphasized individuality and creativity more and opted for a less European-inspired curriculum and lower social cohesion and uniformity. The Progressives faced a major setback with the Sputnik crisis, which led again to more focus on quality education and selectiveness of the school system. The derogatory use of the term may contrast 19th-century pedagogy (see the poisonous pedagogy debate in Germany) with the introduction of new technology into classrooms during the Information Age. While Joel Rose appreciates Horace Mann’s commitment to a public education but is aiming at renewing how to deliver it, authors like Conservative Party of New York State activist John Taylor Gatto and further home-schooling activist Sheldon Richman claim that illiteracy rates in the USA were lower before compulsory schooling was introduced.

Those “normal schools” to train educators are a primary source of the substandard teachers of today, taken from the bottom third of college applicants and trained to promote “correct” social thinking. Big city schools, especially, are run for the benefit of union teachers and not the students. Parents get little or no choice in their children’s education, children get limited instruction, and disciplinary problems detract from study.

But even in the better districts, a uniform Progressive ideology has gradually been impressed on the students. The elementary teaching generation after World War II was still fairly high-quality, and many bright young women went into it as a caring career which would allow children and family interruptions. The advent of both expanded professional opportunities for women and social pressure to go after higher-paid professional careers removed many of the most-competent people from elementary school teaching, and the newer generations of teachers have been trained to promote social ideals over knowledge, with less time for Western classics, civics and history, science, and economics, and more time for environmentalism and “corrective” diversity training. As a result, graduating students, while more sophisticated in some areas, lack the basic knowledge of government and history needed for American citizenship. They have been trained in Progressive ideals, including the notion that passing a new law can address every social problem.

Another import from Bismarck’s Germany: State Socialism. Bismarck set up the basic social welfare state as we know it, with state health insurance, pension, and disability programs, in the 1880s. Social Security was FDR’s similar effort to defuse the tide of full socialism in the Depression; by borrowing from the future, it could provide state support for the elderly at seemingly little current cost in payroll taxes.

These efforts to protect and provide for citizens via state programs have enfeebled private efforts to save and enter mutual support agreements. Half the population now believes they are owed a good job and a living through government action. Politicians speak about “creating jobs” as if that is their proper role, interest groups unashamedly lobby for more subsidies for their particular interest from the money tree of tax receipts and government borrowing, and the common political response to high-priced and low-quality housing in the coastal cities is public housing subsidies, rent controls, and “inclusionary zoning” (the requirement to build “affordable” housing as part of every market-rate project.) All of which drive down supply and increase costs further.

Many people see what’s happened and have tried to sound the alarm. But dissent from the program has been suppressed for decades. And now we have Trump and others feeding off the anger of those who have suffered under a system which rewards the connected and wealthy at the expense of the hard-working, blue-collar citizens not enjoying privileged coastal lifestyles. Our politics has suffered from the sound of silence — the supposed racist and sexist origins of all anti-Progressive efforts, the Conventional Wisdom of the mass media which filters out anything nonmainstream, the gradual corruption of the academy by government funding and directives.

The antidote to this encroaching tribal collectivism is electing representatives willing to return focus to the core function of government — defense, justice, and enforcement of contracts. Returning power to decisionmakers closer to the decision — state and local governments and private citizens — reduces the rewards of corruption and empowers the people to take responsibility for their own and their children’s welfare. Education should be funded by parents and local associations, not mega-school districts and Federal bureaucrats. Parental desires for their children’s upbringing should be respected.

What should not be respected are the non-American “isms” — belief systems incompatible with the Constitutionally limited government that made the US the desirable place to live for productive people. Racism, sexism, classism, Communism, Socialism, etc., should never be tolerated in the action of law. Dividing up citizens by skin color and tribe and doling out affirmative action rewards to the favored may have been justified for one generation, but now create more division than they alleviate. Islamists and other religionists who believe that government should enforce their religious laws even without the consensus of other citizens should never gain a foothold in our politics.

There will always be people living in America who disagree with one or more aspects of Americanism. If they follow our laws and support themselves, the US can accommodate some number of them short of a majority. But we should seek to screen them out when they apply for immigration, and refuse to support them with welfare payments and subsidies. If they find it more comfortable to live in a country that supports their beliefs, they should move there. And we are under no obligation to associate with them, employ them, or be kind to them.

As Sam Adams said on August 1st, 1776: “If ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen.”

Death by HR: How Affirmative Action Cripples Organizations

[From Death by HR: How Affirmative Action Cripples Organizations, available now in Kindle and trade paperback.]

The first review is in: by Elmer T. Jones, author of The Employment Game. Here’s the condensed version; view the entire review here.

Corporate HR Scrambles to Halt Publication of “Death by HR”

Nobody gets a job through HR. The purpose of HR is to protect their parent organization against lawsuits for running afoul of the government’s diversity extortion bureaus. HR kills companies by blanketing industry with onerous gender and race labor compliance rules and forcing companies to hire useless HR staff to process the associated paperwork… a tour de force… carefully explains to CEOs how HR poisons their companies and what steps they may take to marginalize this threat… It is time to turn the tide against this madness, and Death by HR is an important research tool… All CEOs should read this book. If you are a mere worker drone but care about your company, you should forward an anonymous copy to him.

New Review: “Nemo’s World: The Substrate Wars 2”

Nemo’s World: The Substrate Wars 2

This review of Nemo’s World just turned up on Amazon, and since I’m a Facebook friend of the reviewer (who tries to read and review lots of work — that’s the extent of our relationship!), I’m copying here in case the Amazon algorithms strike again and erase it:

5.0 out of 5 stars
A wonderful book about SCIENCE MAGIC and how real people react. BUY IT NOW!
December 14, 2015
By Pat Patterson

This IS, by golly, a review of the second novel in the series, and it’s name is Nemo’s World. I say that, because somehow I convinced myself that it was Red Queen. No, you dope, Red Queen is the FIRST novel in the series, and you reviewed that in September. /end apology for being a dork/

This is a SCIENCE book about PEOPLE. It is not a ‘meanwhile, back at the asteroid’ book, which merely transmits Perils of Pauline into outer space. It is also not a ‘gee-whiz, look at the quasar explode!’ book, which only uses the people to discuss something esoteric. It is, instead, a well-written book about what real people do when they encounter technologies which have the capacity to free or to imprison or to destroy. The technology itself is ethically neutral; it is the character of the people that determines whether or not the outcome results in the maximal value of goodness in the universe or not. You know that bit about sufficiently advanced science being indistinguishable from magic? That could easily happen in this book if the author just used hand-wavium. However, a good bit of the first third or so of the book is given over to explaining just how all this works. So, take heart: you do NOT have to have advanced studies in physics to understand what’s going on in the book. And, if you really don’t care, just skip over the explanations like you did during the whaling parts in Moby Dick.

The characters are carried over mostly from Red Queen, with some new additions. In my humble opinion, however, they aren’t the SAME characters, because they change in light of new developments.

The principal technological applications are a result of discovering how to use the underlying structure of the universe (the substrate) as a source of computation and power. The two most significant applications are first the ability to create windows into other distant locations, and second the ability to create exact replications of physical objects. Thus, we have infinite or near infinite growing room, and infinite resources. In the world of intense government control described in the first book, this is an immediately destabilizing factor.

Okay, I want to shift to what I believe is the most interesting ethical question posed by the technology, which is the replications of human beings. Steve is the genius behind the discovery and development of the new technology. Whether or not it is required that his type of genius also be socially inept is not clear, but Steve is certainly found to be pretty far along on the Aspergers/autism scale. It’s actually quite a beneficial characteristic for him to have, at least in the early stages, since he hasn’t been talking to other people about what he has discovered, and also because he pretty much ignores everything around him in order to enjoy his work. And, to be greatly specific and intentionally offensive, he don’t seem to care for chicks. HA HA! As it happens, there is a certain young lady from the sub-continent of India who DOES care for him! And whether or not he notices, she acquires him by the provision of moving into his tent. I feel relatively certain that Steve had SOME input into the arrangement, but it is clear that Rasna is the active agent here, and it is a Good Thing. And, when you add a Good Thing to a Bad Thing, then you get a Some Thing!

Here’s the Bad Thing: There is so much essential development which must be handled immediately, and it can only be handled by Steve due to his brilliance and grasp of theory, that he simply can’t handle it all. It simply CAN’T all be done, yet it MUST be done, and it means that Steve doesn’t even have a chance to eat or sleep, much less explore his relationship with Rasna. So, he uses the replicator, and creates another Steve.

In public, they use the fiction that this is Steve’s twin brother Larry, just in from Viet Nam, who speaks very little English. It works, for the public.

But MY immediate question is this: since the Larry is the same as the Steve, does he not have equal standing? And specifically, what is relationship with Rasna? Sure, share the work; that presents only minor problems. But share the companion? Rasna reveals that she can’t tell them apart, but states that she doesn’t care, as long as it’s the original she’s sleeping with.

How does she know?

And what about the Larry/Steve’s position on the matter? He has been completely replicated, which means he emerged from the replicator with the same emotional set-up and memories of Rasna as Steve/Steve; isn’t denying him the pleasure of her association the ethical equivalence of denying Steve/Steve?

As I was reading this, I thought, Maybe this is a third application where Steve’s Asperger’s is going to be a benefit. Perhaps he really hasn’t bonded with Rasna at all, so emerging into being without the physical requirement to spend time and energy with her is going to be seen as a plus, and not a minus. Maybe you can replicate geniuses with Asperger’s at will, and never suffer any social complications.

But then it occurred to me: why not replicate Rasna, and call her something else, like Shakuntala, the warrior empress from the Drake/Flint Belisarius series, and pair her up with Larry/Steve?

Aha!

BUT: Rasna does NOT have Asperger’s! And neither would Shakuntala/Rasna, and so what would be the likelihood that she would ALSO demand to be the only one to sleep with Steve/Steve?
He he.

Okay, Jeb Kinnison, how are you going to write your way out of THIS mess?

The small group who program the new technology recognize how much trouble it would cause to have human copies, so they write the programs for normal use to recognize and prevent copying of living things. Steve’s use is a one-off, with the alternative — opening up direct substrate programming to more programmers — viewed as too dangerous to allow. The plot in the next book requires restoration of a lot of backup copies of people, and so the issue will have to be faced. As with all powerful technologies, there are compelling reasons to use it, and real dangers as a result…

Rasna accepts Steve for who he is, and revels in taking care of him despite his limitations and absorption in his work — this has been a pattern for lots of great scientists, and many partnerships are founded on complementary personalities like theirs. You’re quite right that copies of Rasna would find it more difficult to accept the situation, and over the longer term, the copies of Steve may well deserve equal status and a Rasna-copy of their own, likely by moving to another planet to avoid confusion!

If you haven’t read the first in the series, Red Queen: The Substrate Wars 1, it’s best to start there.

IndieReader Best of 2015: “Nemo’s World: The Substrate Wars 2”

Nemo’s World: The Substrate Wars 2

Of the indie books they reviewed (thousands?), IndieReader selected Nemo’s World as one of the 56 best of the year 2015:

A group of idealistic scientists use gateway technology to save the United States in NEMO’S WORLD By Jeb Kinnison
The second installment in Jeb Kinnison’s The Substrate Wars series takes place in the near future where the US has become a one-party oligarchy opposed by a group of rebel scientists and humanity is poised to destroy itself in the name of “security.”

Here’s their review:

5 STARS
IR Verdict: Good science fiction is usually about humanity rather than deep space or death rays. NEMO’S WORLD is well-written science fiction that harkens back to the golden age of Heinlein and Asimov.

If you haven’t read the first in the series, it’s free until Friday: Red Queen: The Substrate Wars 1.

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