Tag Archives: law

A Misapprehension

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Former Vice President Mike Pence (R) is the one misapprehending this time, and he laid it out early in his Sunday Wall Street Journal op-ed.

Where conservatives have historically viewed politics as the art of the possible, progressives see politics as a path to alter society beyond recognition in a quest for material equity, environmental nirvana, or other alleged perfections. Progressives invariably try to destroy whatever stands in their way.

That last sentence lays bare his misunderstanding. Perfecting our society has nothing to do with today’s progressives’ goals, goals hard-sought after by today’s Progressive-Democratic Party and epitomized by that sentence. Were Party interested in perfection, it would adopt a more patient approach and seek to bring along those presently disagreeing with them. Instead, Party politicians try to destroy whatever stands in their way.

For further proof, see Party’s plans, annunciated by House Minority Leader Hakeem Jeffries’ (D, NY) remarks and his chief minion for this, House Judiciary Committee Ranking Member Jamie Raskin (D, MD):

The Supreme Court is a disgrace. In the new Congress, we’re going to have to do something about this Supreme Court, and let me be very clear: everything is on the table—everything to deal with this corrupt MAGA majority.

And, as paraphrased by the WSJ‘s editors:

[Raskin] recently introduced a bill that would deny the Justices the power to choose which cases they hear. Under the SCCOTUS Act, petitions would be reviewed by a rotating committee of 13 random appellate judges. This is such a radical change that it’s hard to imagine all the implications.

Jeffries sees the Court, especially the conservative Justices, as corrupt because the majority seeks to adhere to what our Constitution and any statute before them actually say, rather than what the other Justices too often insist: that, in the manner of former Justice Thurgood Marshall, the Court should rule on what they want and expect the law to catch up, with the added fillip that if the law isn’t catching up quickly enough, these Justices will rewrite them from the bench.

Raskin would actually corrupt our Court by packing it to thirteen Justices because thirteen appellate circuits. He ignores in his revisionism the history that the number of appellate circuits had been growing beyond nine long before Congress set the number of Justices at nine. In fact, though, that’s just his covering excuse for adding four activist, progressive men and women to the Court, men and women who view our Constitution and statutes as suggestions to be ignored or modified as they see fit.

Pence’s piece loses its import with his lack of understanding of the underlying problem, even as he’s entirely correct in his conclusion: it’s time for Republicans, and especially the dismayingly meek Republicans, to get up off their backs and address these problems loudly and firmly. In particular, this includes Vice President JD Vance (R), who’s busily toadying up to Big Labor in his desperation to become our next President.

Else we lose our Republic.

The Nub of the Matter

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An article concerning the nature of “sex work” and the debate over whether it ought be decriminalized and destigmatized, there was this characterization:

On [one] side are those arguing for total decriminalization, which lifts all laws regulating the buying and selling of sex acts.

And this, from a woman who ultimately escaped from the environment:

Prostitution is someone using their money and power to get someone else to provide a service for them. You’re literally paid to be a product that is used and discarded.

There it is, in all its glory, from the life of an individual once in the environment and from the broad movement looking to decriminalize “sex” work. It isn’t about sex; it’s about faceless male gratification, for whom the woman isn’t even a human being; she’s just a body temperature, organic inflatable sex doll. It’s not even a matter of buying a selling sex; it’s only renting a warm doll for a hour or a night, otherwise akin to renting a power tool.

Say, though, that in an amoral yet otherwise ideal world, this work is entirely legalized. On what basis would we believe the women involved really are engaging in it on their own initiative and entirely free of coercion? Pimps will still be there, now legalized as agents or brokers for the firms renting these commodities. And they’ll still control the women, who they engage with, what they’ll do—be required to do under the terms of their employment—during those engagements.

Would a woman be free to leave one…employer…for another whenever she chose to do so? Would she be free to leave the…industry…altogether and seek employment doing other things wholly apart from being a rented sex doll? Those answers seem obvious.

Tellingly, too, the movement wholly ignores the men who are trafficked or pimped out as male prostitutes, and worse, the movement wholly ignores the children, of both sexes, who are trafficked for sex.

The answer to “sex work” isn’t to legalize it. It’s a multipart question: help the women (and the men and children) recover from the damage done by their present strait and then learn other means of earning a living—a legitimate living and one in which they keep all of their wages. In parallel, hammer severely the traffickers and pimps making these victims—and that’s what the women (and men and children) are to five nines significance—”available.” Hold criminally liable the customers of these pimps and traffickers for receiving illegal goods. They’re certainly not customers of the women; they’re receivers of the pimps’ and traffickers’ product. And publicly shame those customers for their abuse of the women whose bodies are the product they rented.

The “Anti-Weaponization” Fund

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I have some thoughts on this and how it might work. Of course, I’m speculating; no criteria for eligibility or payout have been set, the five-person “adjudication” panel has not been stood up, and it’s possible the funding will not survive Congressional purse-control oversight. Within that, here I go again.

Payouts, I expect, will be limited to actual loss, with no add-ons related to punitive matters. In many respects, this will be straightforward, but there are a number of areas where losses are not clearly specifiable and/or the alleged losses are highly subjective. These latter include losses from loss of jobs, loss of business revenue, closure of the business. Courts have gotten fairly adept, if widely variable across jurisdictions, in assessing this sort of loss.

Even hazier are things like loss through death of a spouse, loss of the spouse’s income (which is separate from his/her death, even if the income loss resulted from the death), loss of conjugal relations or alienation of affection resulting from divorce or the affair that led to the divorce—and yes, some divorces have occurred as a result of many of the J6 prosecutions and, in the present context, persecutions. Courts make guesses at these losses, but only guesses; they’re not very good at it.

The next, and the overwhelmingly most important, problem, though is this. Given provable or even merely articulable loss that meets fund eligibility criteria to this point, it’s going to be deucedly hard to prove the political targeting, lawfare nature of the cases for which an applicant is seeking recompense. At best, satisfying a court, most likely satisfying the succession of courts, appellate courts, the Supreme Court, with the potential for remands to lower courts for further consideration or for reconsideration, will take years and years to reach a final decision. And that decision may well be that the matter at hand was not, in fact, political targeting, and so no payout is due.

And one more question. Given a final decision, whence the monies for the legal costs of getting to one? Will the Fund pay the government’s legal costs apart from any payout ordered? If not, where will the government’s funding come from?

Experts Everywhere

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A couple of professors at the University of Pennsylvania’s Wharton School Department of Legal Studies and Business Ethics want a body of Experts to supervise risks from emergent AI, saying that such a body would be better than an FDA-like regulatory body, or Congress through statutorily enabled product-safety laws.

They’re right that having a government body of experts like the FDA do this sort of thing is determinedly suboptimal. They’re right, also, regarding Congress, although Congress is considerably more malleable than a department or agency of bureaucrats.

But another body of Experts?

Bank supervision, which emerged in the Civil War and took its current form out of the Great Depression, offers the best framework for overseeing the most advanced AI labs.

After all,

Frontier AI labs such as OpenAI, Anthropic, and Google DeepMind are different.

And there’s always an excuse for standing up yet another bureaucratic regulatory body. In the case of their bank supervision model, about which they’re so enthusiastic, they give their game away [emphasis added].

Banks are too complex to govern through legislated rules alone, too important to leave to market discipline, and too dynamic for one-time approval.
Bank examiners often sit inside the institutions they oversee.

That’s the problem with our economic system government overlords. With the Panic of 2008, the Federal government created out of whole cloth the myth of some (ultimately government favored) businesses are too big to fail and so must always be guaranteed a government bailout. That confidence in the Federal apparatchiks sitting inside the banks also is misplaced. It’s only necessary to see the failures of the Silvergate, Signature, and First Republic banks to see the intrinsic failure of this. Those banks didn’t only fail through their own mismanagement; they also failed because their regulators were incompetent enough or lazy enough or complacent enough to miss those bank managers’ basic economics error of borrowing short-term while lending long-term and letting those two get ‘way out of balance. That allowed their short-term debts to come due before they had the long-term debt income to cover.

But the good professors want a board of Expert Apparatchiks inside the OpenAIs, Anthropics, and DeepMinds to oversee how these handle risks of emergent AI.

And this:

Banks share information with supervisors that they could never safely disclose publicly.

AI software is too important, too critical to national security, to share with apparatchiks of government. Our Federal government is infamous for its inability to defend against PRC cyber espionage. It’s infamous, also, for its bureaucrat employees leaking confidential financial data about businesses and persons of which those bureaucrats personally disapprove.

And this:

An AI risk supervisor could be funded by industry fees. Its leaders should be Senate-confirmed and removable by the president, but its expert staff should be insulated from day-to-day political pressure.

No.

Experts have their uses, often very important uses. On the witness stand to explain this or that aspect of a crime, balanced by another expert on the witness stand with a differing explanation. In police department forensics sections. As teachers in environments where their expertise is more important to the teaching than their teaching style. In medical and mental health doctor offices.

But in government? Not so much. Experts are useful when they’re part of a range of experts advising, as employees, the government’s decision makers. But as government decision makers? Definitely not so much. For the lack of utility of that last role, it’s only necessary to look at the Fauci-Collins-led experts as bureaucrats, or at the experts of the John Brennan and James Clapper CIA and ODNI, respectively.

The Supreme Court was right when it greatly reduced Chevon Deference in its Loper Bright Enterprises v. Raimondo ruling, making clear that “experts” in government aren’t owed any particular deference on matters of government behaviors and decision-making.

So it is with emergent AI.

Who’s In Charge?

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Is it a company’s leadership, ultimately hired by the company’s owners, the shareholders. or is it a couple of proxy advisers, whose income depends on being the ones consulted over management decisions?

Exxon Mobil, having grown fed up with the anti-business climate of New York, has put before its owners, its shareholders, the proposition that the company should go out from New York, move to Texas, and redomicile there.

The two largest Proxy Advisors aggregate to somewhere between 90% and 97% of the American proxy advisory market. The two, Glass Lewis and Institutional Shareholder Services, are pushing those shareholders to reject the move.

(Aside: they’re not even American companies. Glass Lewis, although headquartered in San Francisco, is owned by Peloton Capital Management, a Canadian company. Institutional Shareholder Services, although headquartered in Rockville, MD, is owned by the German company, Deutsche Börse AG.)

Their motive is obvious. Texas, for instance,

lets companies domiciled in the state require that investors hold at least $1 million in market value, or 3% of voting shares, for six months to submit shareholder proposals. Companies can also require shareholders to own at least 3% of shares to bring lawsuits for breaches of fiduciary duty and self-dealing.

A successful move to Texas would encourage lots more companies to leave States with high business taxes, excessive regulatory environments, and especially relevant to this context, a heavily advisor-permissive suite of regulations. This is a significant reduction in the “advisors'” ability to…influence…the companies they choose to target.

Who runs, then, Exxon Mobil: the shareholders or Glass Lewis and Institutional Shareholder Services?