#and they help me at least differentiated between different clauses

[cluelessbees]

Call me crazy but I’m a slut for em dashes

[answrs]

long ramble about good finds! and also burned out question about a cougar skull in ohio and rant at the bottom. i have slept 5 hours total in the past 2 days. ple.as.e do n.ot r.ebl.og this.

so went to this reenactment thing with grandparents down in the middle of fuck-all nowhere in inch deep mud. but right a few booths in comes this majestic, extensive fur and pelt stall. was just gonna look at the prices and laugh at the huge overpricing on things like tail keychains (and i did, seriously, 25$ for a scrappy coon tail? pff) but. then there were these racks and racks of pelts and. the prices were all actually really good? for nice wallhangers? and tons of them? like 10 different morphs/wild and ranch foxes (side note like I knew kit foxes were small but never -that- small i mean holy shit.) (also some of those ranch guys were as large as the coyotes wtf. they had a ranch arctic/white next to a wild and !!!!!! it was nearly taller than me and just, well, !!!!!!), bobcats, coyotes, badgers, coons, beavers, ringtails, etc etc. even a wolverine with full set of claws! (and what was either the sorriest sized, furred, and colored wolf, or just a random coyote they stuck a big sticker on, but ehh.) then going up to the actual booth to pay they have a little collection of skulls on top of everything too!

basically what I'm saying is I got 3 of my dream collection goals (or partials, in the case of the skulls, but shush) for less than what a single one of them would run me elsewhere.

except.

i just... don't feel anything? like i should be at least happy-ish? but i just don't? like i know im in a bad state rn but like even at the (smoke. smoke EVERYWHERE. idfc about historical accuracy when almost every single one of 100-ish tents has their own big smoker/fire going) fest i was like, not dancing per say, when i fell in love with the most beautiful cross fox and had him all nice and bagged up, but def pretty happy.

maybe it's because when I went back to nab those skulls they were really, and i mean really, pushing me to buy the other i was looking at. that they were adamantly calling a bear. like i literally had them next to each other and they looked absolutely nothing alike. but "yes it is, the nose just... broke off! it's a bear! totally!". i should have really taken it as a warning when all three jumped on me as soon as i was "ooh, a bear and cougar skull!". but i was too excited to think about it until just this past hour. it was the only one without a species written on the tag too im now realizing. like dudes (and lady), you've all been in the business for like 30+ years each, you know what a cat looks like. or at very least can look at two skulls and say "yep, those aren't the same" (when you've been able to differentiate between like 5 broken mustelids correctly and all the others on your table)

anyway back to the story so now i have a nice fox (legal), upper bear skull (legal) (with canines too!), and a probable partial upper cougar skull that i may or may not actually be able to own (and that they have plausible deniability to have sold) (i was thinking about other species which are fine selling interstate, thought it was one (mope like, wait no you can't sell x from section ii in these states but others are fine and it isn't that species which seems is rarer) and didn't think to double check even if i did have reception there. stupid me.)

before you ask, yes I have used the vc state legal masterpost/chart, it was the first thing I went to.

from the various gov and wildlife and guides and etc i... honestly have no idea anymore. i got 4 hours of sleep last night and 2 the previous, slogging through legal-ese, even dumbed down legal-ese, is not something i can really handle anymore. it's not an ohio furbearer or anything, so the part about being able to trade in-state with ii section native animal species (if i even read that part of the regulations right) doesn't actually apply? but it's also not being imported anywhere, even just across state lines, and almost all the info i can find only relates to import/export and international border crossing (which is the same technically, but you know). (there's some sort of vague clause i dont quite understand about personal collection items sometimes being exempt from needing permits when moving out of the country. but again, not helpful). don't know if someone had it in captivity/whatever either, though with the condition it's in I doubt it

so on one hand, I might need to throw away (two thirds of) an upper skull of a dream species because i couldn't read the stupid warning signs and thought i knew the rules for it. on the other hand, it was 7$. ive paid more than that for every individually purchased skull (when you include shipping) in my collection. (not counting bulk/bundle orders, but even then...)

basically what it boils down to (hah. boiled. bc it looks professionally cleaned/whitened if it wasn't for the condition/missing sections.) im completely burned out, have been for the past month, and just. cant deal with any more of this. i cant even enjoy my dear cross (currently airing out downstairs hanging from the fan in gm and gp's living room bc of all the GODDAMN SMOKE I HAD TO CARRY IT THROUGH) bc of this, and also dreading tomorrow bc there's literally zero chance gm/gp won't tell mom abt it at the picnic thing and she's gonna be completely pissed to hell since im supposed to be selling all but my most beloved everything (even if it was technically a gift from them and i didn't buy it myself) since she's out of a job and im getting minimum wage at mine and need to take more hours but also sign up for classes and take those somehow too at the same time and also fill out all the govt paperwork to try getting me (her) help and. yeah. I'll post pics up maybe, if nothing else one of the creepy ~floating phantom~ gp saw going upstairs through the living room half asleep. phone doesn't do color justice at all so :/

[davidweeks]

Advanced Entertainment Law

Prior to the Advanced Entertainment Law course, my eighth month here at Full Sail University, I was expecting to gain some knowledge on contracts and learn some of the terminology used to understand them more easily. I quickly realized that understanding contracts isn’t going to serve me as beneficially as would looking for things that aren’t in negotiation, as learned in our contract review discussion board activity. Once a contract appears to state in detail the obligations of the other party involved, then would be the time to have an entertainment attorney step in and make sure everything looks appropriate. Nevertheless, understanding contracts was only a fraction of what I learned this month and the course has blown my expectations away by far. Some of the areas that were covered this month were addressing the intellectual property forms that I will be dealing with in my industry, learning what category they fall under and they can be protected, as well as how to protect them. I also learned about the forms that will be required of me in order to do so, along with business registration forms as well, and understanding their nature, specific terms used and how to complete them for submission.

In week one of the course, I was given the opportunity to examine some of the legal liabilities for my field that are related to the forms of intellectual property that I will be creating and utilizing as well as ways to combat and prevent those liabilities. I was able to study some of the court cases that occurred within the realm of work for my business, being the music industry, and analyze the courts’ decisions. The rulings made by the judge provided me an insight on how these lawsuits usually play out, which I would say gave me understanding on the differentiation between certain extents of being inspired by another individual or brand and stealing their work or ideas. Sometimes two works are relatively similar, but the inspiration doesn’t simply mean infringement is occurring, as their is a difference. In week two, I was able to go more in-depth with these liabilities and analyze several more lawsuits that occurred that have a nature pertaining to the business I will be running. I was also able to study a contract and seek out bad clauses within it. Week three gave me a chance to deal with registrations such as that for my business, copyright registration, and trademark registration. I feel that this will help me big time when going to file for my own business assets, including the name of the brand and the content produced. Finally, in week four I was able to dig even deeper with on of the original liabilities I studied in week one by analyzing a court case involving that liability, and what caused the judge to rule in favor of one side over the other.

I must say that after this month, my level of confidence in establishing my career and putting out content that I am certain will not be stolen from me or profited from in any unauthorized usage has increased tenfold. I am very pleased with the new knowledge I have attained and will be directly applying it to my business plan. Of course I am aware that I will still need to select a solid entertainment lawyer for the purposes of dealing with some of my contracts and representing me while taking any infringers of my work to court, but I am far more knowledgeable on the legalities of my industry. I was able to select the business structure that I will be operating under once I was aware of the different types and how they serve a company, which was a big factor for registering it. I chose a limited liability company instead of a closely-held corporation, as I will not be franchising and opening multiple locations, I will not be taking many loans from others and therefore my debt will hopefully be at a minimal, and also for the reason that I will not be partaking in business agreements internationally. Everything that I control for myself and my personal brand will be domestic, but this doesn’t mean that my artists won’t be touring worldwide and participating in deals oversees. My eighth month here was an extremely beneficial learing experience for me, and that is to say the least.

[maxmrnv]

1. Translation of metaphor

Metaphor is a stylistic device in which transference of names is based on the associated likeness between two objects. Both words have at least one common semantic component.

If we speak about rendering SDs into the target text there can be the following translation decisions:

Appropriate/faithfull translation of SD conveying all functional and structural peculiarities of any source SD in the target text.

Stylistic individualization which usually happens when the translator has equivalent stylistic means but foregrounds other SD strengthening them.

Stylistic loss usually happens when the translator doesn’t convey source SD in the target text thus the translator weakens the target text.

Stylistic substitution which usually happens when the translator doesn’t have any equivalent stylistic means and changes them into other SDs.

The following ways of metaphor translation are singled out:

Literal (word-for-word) translation which is usually found among trite metaphors.

Demetaphorisation which usually happens when the translator replaces metaphoric word meaning by unmetaphoric equivalent: чорна робота – unskilled work; he is yellow – він боягуз.

Metaphorization the replacement of non metaphorical meaning by its metaphorical synonym. It is the compensation of previous loses: ця ідея привернула його увагу – this idea gripped his mind.

Transmetaphorisation is the replacement of the image created by the source metaphor or replacement of the component of this image: ах ти, дурне теля – oh the silly goose; злі погляди – black looks.

Change of SD. Usually in the process of translation metaphor can be changed into simile or epithet: dog days – найспекотніші дні.

Explicatory translation (описательный перевод).

2. Translation of epithets

Equivalent translation when the evaluation and the structure are preserved in the target text: вітер тихий – peaceful wind.

Structural changes usually happen when we deal with the change of the structural type of epithet or some other grammatical changes.

Semantic changes which usually happen when the image is preserved but it is expressed by other words: polished conversation – стримані розмови. Сонечко наше красне – our dearest splendid sun.

Structural and semantic changes: a duck of a boy – диво-хлопчик.

The change of stylistic device. Usually epithet can be changed into simile.

Explicatory translation: flight-by-night theatre – театр, який незабаром закриється.

3. Structural types of English and Ukrainian epithets

Structural types of English epithets:

Simple (single) epithet (expressed by one word).

Pair epithets (expressed by two words joined by conjunction or asyndetically): wonderful and incomparable beauty.

Chain of epithets (expressed by three or more homogeneous attributes): In the cold grey early morning.

Two step epithets (adverb + adjective): absolutely fantastic.

Phrase epithet: cat-and-dog life.

Inverted epithet: a rose of a girl, a hell of a noise.

Sentenced epithet which is usually emotionally coloured addresses or post-positive attributes.

Structural types of Ukrainian epithets:

Simple epithets (expressed by one word either an adjective or an adverb or a participle): бистра вода, боязко тремтить, зневірена душа.

Epithet apposition (expressed by two nouns which are written with a help of dash, прикладка): думки-метелики, сльози-перли.

Composite epithets (епітети-композити, expressed by a compound word): квітки синьоокі, вогнеокий демон, осінь жовтокоса.

Sentence epithets (performs the fan toon of predicative thus forming the sentence): твої очі – тихий вечір, твої очі – срібна річка, твої очі – ніжні квіти, твої очі – тиха радість.

In Ukrainian stylistics color epithets are widely discussed and used.

4. Types of repetitions

According to the structure all repetitions can be subdivided into:

Ordinary repetition which has no definite place in the sentence and the repeated Union occurs in various positions. It stresses both the logical and emotive meanings of the repeated union: I really don’t see anything romantic in proposing. It is very romantic to be in love. But there is nothing romantic about a definite proposal.

Successive repetition is a string of closely following each other units which show the peak of the speaker’s emotions: These are only promises, promises, promises.

Anaphora – the beginning of two or more successive clauses or sentences are repeated. It usually creates the background for the following non repeated unit: ти пахнеш як листя весняне, як дитинство моє полотняне, як тепла малинова стежка, як мамина срібна сережка.

Epiphora – the ends of two or more successive clauses or sentences are repeated. It usually adds stress to the final elements of the sentence: there is no negro problem. There is no southern problem. There is only an American problem.

Framing repetition – the beginning of the sentence is repeated in the end thus forming a frame: The king is dead, long live the king.

Catch repetition (anadiplosis) – the end of the sentence is repeated at the beginning of the following: now he understood. He understood many things.

Chain repetition presents several successive anadiplosis and it usually produces the effect of developing logical reasoning: The more I study the more I know. The more I know the more I forget. The more I forget the more I forget.

Parallel – the syntactic structure of several successive sentences is repeated. It adds rhythm and balance to the utterance and helps to stress main idea. Sometimes it goes together with different types of repetition.

Chiasmus (хиазм) usually consists of two parts where the second part is the mirror reflection of the first part. It is the repetition of the same structure but with the opposite order of elements: I know the world and the world knows me. Треба їсти щоб жити, а не жити щоб їсти.

5. Types of climax

As to the structure climax can be:

Ascending (нарастающая): Better to borrow, better to beg, better to die.

Descending (спадающая): Be careful, not a look, not a wing, not a syllable, not a whisper.

Two-step: He was so helpless, so very helpless.

Three-step.

According to the meaning climax can be:

Logical. It means that next unit is more logically important.

Emotional. Each next unit is more emotionally stronger.

Quantitative.

6. Peculiarities of English and Ukrainian simile

Simile (сравнение) is an imaginative comparison of two objects belonging to different classes. It shouldn’t be mixed with logical comparing.

Simile consists of three elements:

The tenor (тема сравнения) is the object we compare.

Formal element (like, look like, as, as though, as…as, such as, resemble).

Vehicle (образ сравнения) is the object we compare with.

In simile two objects are compared on the grounds of similarity of some quality. This feature is called the foundation of simile.

Types of simile:

According to usage simile can be trite and fresh.

According to the expression simile can be simple and extended.

According to the usage of foundation simile can be explicit (she is as beautiful as rose) and implicit (she is like a rose).

Disguised simile is mostly found in English. The formal element is expressed by a verb.

Ukrainian similes can be also divided into trite and fresh, simple and extended, explicit and implicit. The only difference is in the usage of the formal element. In Ukrainian it can be expressed by:

Conjunction (мов, немов, як, ніби, наче…).

Predicate (подібний, схожий).

Asyndetically: Твої губи – розгулена рана, кров твоя – рубін коштовний.

Instrumental case (творительный падеж): Ти – зорею, а я – кленом.

7. Types of periphrasis and the peculiarities of its usage

The following types of periphrasis are singled out:

Logical: my better half (spouse), weak sex, автор «Мертвих душ».

Figurative periphrasis which are usually based either on metaphor or on metonymy: black gold, the sunflower state (Texas).

Euphemistic periphrasis (эвфемизм) is a more polite qualification instead of an unpleasant one or of taboo words. Euphemistic periphrasis are used:

To name the death: to pass away, to join the majority, to pass into the darkness etc.

To replace some unpleasant words: to hit the bottle (пьяница), to tell stories (лжец).

To raise the social and professional states of the person: the needed, to ill provided, the low incomed, team assistant (instead of secretary).

Gender-specific forms: chairperson (chairman), spokesman (representative).

8. Stylistic differentiation of the vocabulary: literary level

Bookish words are mainly used in the written form of the language. They are characteristic feature of official, scientific and poetic messages. They are mostly found in author’s narrative, descriptions and argumentations. They usually contribute to the massage, the tone of safistication and seriousness.

All bookish words are divided into:

General bookish words.

Special literary words which are subdivided into:

Terms are words denoting objects, process, phenomena of science and technique.

Barbarisms or foreign words these are borrowed words.  

Archaisms which on their turn can be proper archaisms (words which in the course of language history have been substituted by new forms):; Historical words;Poetic words mainly used in the poetry in the 19th century: woe – sorrow; quoth – said.

9. Stylistic differentiation of the vocabulary: colloquial level

Colloquial words are usually associated with oral form of communication. They are often used in dialogues and character’s monologue and they mark the message as informal nonofficial and conversational. They can be subdivided into:

General colloquial words.

Special colloquial words which in their term consists of:

Slang – the words which are used in very informal communication. They are highly emotive and expressive and are quickly replaced by new words.

Jargonisms – these are words which are spoken by a limited group of people united socially or professionally and this words are substandard, expressive and emotive. They can be subdivided into: proper jargonisms which originated from Thieves’ jargon and serve to conceal smth; professional words that are used by representatives of some professions; vulgarisms are strongly emotional, derogative and avoided in polite communication; dialectical words are usually phonemic or lexical variations of the language.

10. Graphical stylistic devices

Three groups of graphical SD are singled out:

Change of type and it includes: italics which usually shows the stress the speaker made on this word or syllable; CAPITALISATION which shows the intensity of speech; petite is change into smaller print, which shows that some information is not very important or is not pronounced loud.

Spacing of graphemes includes: multiplication of graphemes which shows the intensity of speech: Ууурааа!; hyphenation (слогоделение) usually shows the ride and clipped manner in which something is pronounced: О я-ка ра-дість зно-ву те-бе ба-чи-ти!;

Spacing of lines: lay-out (разбивка) is usually found in poetry.

11. Lexical stylistic devices: pun, zeugma, semantically false chain and their peculiarities.

Pun is a SD in which the usage of one word in two meanings either deliberately by the speaker or as a result of the listener's misinterpretations of the expression. Such usage produces humorous effect.

Zeugma (зевгма) is a usage of polysemantic verb followed by two nouns which are not connected semantically: She was a thief you got to believe, she stole my heart and my cat.

Semantically false chain is the usage of polysemantic verb followed by three or more nouns, the last of which falls out of the semantic group does producing humorous effect: He thought to himself give her what: a keys, a box of chocolate, a punch in the nose. Він любив свій дім, жінку, дітей і пиво.

12. Types of narration and narrative compositional forms

Types of narration (типы повествования)

Author’s narrative which can be of two types:

Proper author’s narrative which is usually given in the third person singular. If we speak about the proper author’s narrative we can say that the development of the plot is concentrated here, personages are given characteristics, the time and the place of the action are also described here, it gives information about the author’s preferences and objections, believes and considerations.

Entrusted author’s narrative which is given in the first person singular. It entrusted author’s narrative the writer hides himself behind the figure of the narrator, presents all the events of the story from his point of view and only sometimes emerges in the narrative with his own consideration. The structure of such narrative is much more complicated and sometimes can be even anonymous.

2. Dialogue. Personages express their minds in the form of attended speech. In their exchange of remarks the participants of the dialogue while discussing other people and their actions expose themselves too. It is the form of the personages self characterisation, and the author eliminates from this process.

3. Interior speech. It allows the author to pip into the world of the character.

Interior monologue which is rather long piece of the text, dealing with one major topic of the character’s thinking, offering causes of its past, present and future actions.

Short inserts (краткие вкрапления) of the interior speech. They usually present immediate mental and emotional reactions of the character to the remark or action.

Stream of consciousness. The reflection of the mental process undergoes some linguistic structuring to make it understandable to the reader. In some extreme situation they can be disjoint, associative manner of thinking which makes the interior speech almost incomprehensible.

4. Represented or reported speech. It is the blend of the viewpoints of both the author and the character. It serves to show either the mental reproduction of one’s remark or the character’s thinking. It is usually given in the third person singular with some author’s qualitative words and author’s view points.

Narrative compositional forms

Narrative proper (повествование) which is dynamic and usually unfolds the form.

Description (описание) which is static and gives details of the appearance and character of the personage, place and time of the action.

Argumentation (рассуждение) which is static and usually explains the causes and effects of the character’s actions, behaviour, considerations about moral and other issues.

[deniscollins]

The Lineman Got $63 an Hour. The Utility Was Billed $319 an Hour.

Hurricane Maria resulted in Puerto Rico experiencing the largest blackout in U.S. history and on Sunday, 54 days after the September 20, 2017 hurricane, the grid was working at 47.8 percent of capacity. Utility linemen are earning about $80 an hour. If you were a Whitefish Energy executive managing these repairs, how much would be a fair price to charge Puerto Rico’s public utility for the linemen’s work an hour: (1) $120, (2) $180, (3) $250, (4) $320, (5) some other amount, if so, how much? Why? What are the ethics underlying your decision?

The small energy outfit from Montana that won a $300 million contract to help rebuild Puerto Rico’s tattered power grid had few employees of its own, so it did what the Puerto Rican authorities could have done: It turned to Florida for workers.

For their trouble, the six electrical workers from Kissimmee are earning $42 an hour, plus overtime. The senior power linemen from Lakeland are earning $63 an hour working in Puerto Rico, the Florida utility said. Their 40 co-workers from Jacksonville, also linemen, are making up to $100 earning double time, public records show.

But the Montana company that hired the workers, Whitefish Energy Holdings, had a contract that allowed it to bill the Puerto Rican public power company, known as Prepa, $319 an hour for linemen, a rate that industry experts said was far above the norm even for emergency work — and almost 17 times the average salary of their counterparts in Puerto Rico.

A spokesman for Whitefish, Chris Chiames, defended the costs, saying that “simply looking at the rate differential does not take into account Whitefish’s overhead costs,” which were built into the rate.

“We have to pay a premium to entice the labor to come to Puerto Rico to work,” Mr. Chiames said. Many workers are paid overtime for all the time they work. Overtime pay varies by type of worker, union membership, mainland utility company and many other factors.

The markup is among the reasons that federal officials are scrutinizing all other contracts involving Puerto Rico. The control board that oversees Puerto Rico’s finances is seeking more authority over the billions headed the island’s way, including the power to review big contracts and randomly inspect smaller ones.

Two weeks after Prepa abruptly withdrew the contract from Whitefish following strong criticism by federal and congressional officials of the company’s expected ability to perform the work needed, more questions are being raised about the deal, including how much it will actually cost. Whitefish will keep repairing power lines until Nov. 30.

As the Trump administration prepares to spend billions of dollars on rebuilding Puerto Rico’s infrastructure, the Whitefish deal — hatched in a dim, powerless room six days after a storm packing winds of nearly 150 miles an hour knocked down thousands of power poles and lines — has served as a cautionary note about the potential for soaring costs that are common after disasters.

Questions are already being raised about a second contract that Prepa signed, this one with an Oklahoma company, Cobra, which was the highest bidder, required a $15 million down payment and — like the doomed Whitefish agreement — included a clause that said the deal could not be audited.

At issue is managing what can be conflicting dynamics — the need to get essential work done quickly and the potential for it to be done at exorbitant prices. With roads and bridges wiped out, schools across the island damaged and health care needs expected to soar, the repair contracts are just two of many that are expected to easily cost billions of dollars.

“We don’t do so well with emergency funding in this country,” said Leslie Paige, with Citizens Against Government Waste, a watchdog group. “We often do not see the final bill for these kinds of mistakes until after the fact, and the money is already gone.”

Representative Rob Bishop, a Utah Republican who is chairman of the House Natural Resources Committee that is investigating the contract, said Whitefish served as a red flag. “Based on Whitefish, all of the contracts need to be looked at, especially from the beginning until there is a process we are comfortable with,” he said.

The situation in Puerto Rico is dire: According to the research firm Rhodium Group, this is the largest blackout in United States history. After Hurricane Maria struck Puerto Rico on Sept. 20, power was knocked out at every home and business. On Sunday, 54 days later, the grid was working at 47.8 percent of capacity.

The Whitefish case has already influenced Puerto Rico’s recovery: President Trump agreed to increase aid to the island — but only if the Puerto Rican government does a better job of estimating costs. “We have a lot of work to do when it comes to grant-monitoring at all levels of government,” Brock Long, director of the Federal Emergency Management Agency, told Congress recently, vowing not to commit “one dollar” to the Whitefish deal.

The Whitefish contract has been particularly problematic.

The Army Corps of Engineers, which is overseeing power restoration in Puerto Rico, did not hire Whitefish because its prices were more than double what the agency considered reasonable, according to the Senate Committee on Homeland Security and Governmental Affairs.

“They are paying $3 million for hotels and $80 a day each for food,” said Johnny Rodríguez Ortiz, president of the organization of retired electrical workers in Puerto Rico. “I just had lunch with my wife, and it cost me $14.”

Prepa agreed to pay Whitefish three times the going rate for aviation fuel, and about double what a helicopter specially equipped for transmission line construction should cost, according to industry insiders and people with knowledge of the Whitefish contract. The company is also billing about $4,000 an hour to rent a helicopter; companies that specialize in transmission line construction said that price is more than double what they charge.

At least four congressional committees are investigating. The Office of Inspector General for the Department of Homeland Security has also begun a review of the Whitefish contract, as has the F.B.I., according to media reports.

Whitefish’s chief executive, Andy Techmanski, has called the investigations a “witch hunt.” The company said on Saturday that it had completed repair of more than 150 miles of transmission and distribution power lines.

To explain the differences in salaries paid to the workers and the rates Prepa was charged, Mr. Chiames, said in an email,“The rates in the contract were fairly negotiated between Prepa and the company and were based on the mutual knowledge about the difficulty of the work and associated risks.”

He said the company was making a “single digit” profit on the Florida workers because costs in Puerto Rico were higher.

Still the costs came as a surprise to the public utilities in Florida that had sent workers.

“We know what we are invoicing is our straight costs,” said Chris M. Gent, vice president for communications at the Kissimmee Utility Authority.

Normally, when utilities help each other recover from disaster under mutual aid agreements, “nobody is marking anything up,” Mr. Gent said.

“Linemen cost $60, $70, maybe $100 an hour,” said Luis A. Aviles, a former chairman at the Puerto Rico Electric Power Authority under the previous administration, and an energy law professor at the University of Puerto Rico. “Let’s say you put an overage on it, because it’s a special emergency circumstance. But $300 an hour? No way.”

Jacksonville Electric Authority said it had billed Whitefish for additional overhead to cover things like administrative costs and insurance, bringing the bill to about half what Whitefish was charging Prepa. A spokeswoman for Jacksonville Electric said she was not concerned about the markup because Whitefish was also handling food and lodging. (However, Whitefish is also charging Prepa another $412 a day per worker for food and lodging.)

Lakeland said it was charging Whitefish only for labor and was unaware of how much the Puerto Rican government was paying. Most of Whitefish’s subcontractors are from private companies, and officials with knowledge of the contract said that those workers were receiving more than the Florida linemen, but that there was still a significant gap between what the companies were billing Whitefish and what Whitefish was billing Prepa.

Jeffrey Bartel, a former senior executive at Florida Power & Light, the third-largest utility in the United States, said markups were routine in subcontracted work, as was charging double time for emergency work.

But “even at double time, the labor cost figures are empirically questionable,” Mr. Bartel said after reviewing the contract at the request of The New York Times. “Possibly most egregious is that this all takes place with a dire and desperate circumstance where people’s lives are at immediate danger without power, and, therefore, there is unequal bargaining position by Puerto Rico, which allows for the possibility of price gouging.”

In Puerto Rico, the reaction was more harsh and skeptical. Mr. Rodríguez, the former utility worker, says out loud what many critics say privately: that markups like those have been used in the past to pay kickbacks to corrupt officials.

Prepa has long dodged accusations that it created a slush fund by buying low-grade sludge and billing customers for high-grade oil.

Prepa would not answer specific questions or provide invoices because the matter is under investigation and the record no longer public. The company’s chief executive, Ricardo L. Ramos, said he had agreed to the contract because Whitefish did not demand money upfront, and decided to cancel it only because of the negative publicity.

“If people have the perception that there was an act of corruption where some benefited and became millionaires at the expense of the people of Puerto Rico, while they’re all going through a humanitarian crisis, look, that’s a huge offense,” he said at a news conference.

He acknowledged that Prepa could have contracted the Florida companies directly, but that it would then have had to feed and house the outside workers, which he said was more than the company could manage. He recently fired the company’s lawyer and procurement officer, and Prepa is now entering into its own mutual aid agreements with New York and Florida utilities.

Mr. Ramos and the Whitefish chief, Mr. Techmanski, deny any improprieties. Mr. Techmanski said he was the only one to rush to Puerto Rico under precarious conditions to get the lights back on. He told NBC News that he made contact with Prepa through LinkedIn in early September just before Hurricane Irma, an assertion Mr. Bartel said was so absurd that, if true, raised even more concerns about the due diligence that went into awarding the contract.

At a recent news conference, Mr. Ramos explained that Whitefish’s prices for subcontractors were high because initially it had to cover things like food and lodging. His explanation was unclear, though, because the contract has separate line items for such expenses.

He said that some of the more contentious clauses, like the one that suggested FEMA had reviewed and approved the deal, were included by accident, in what he described as “an oops.”

[drunk-math]

What the fuck is a contour integral?

So I was writing some thoughts on the prime number theorem (the theorem, at least as I learned it, that the chance of a random number up to a given cap being prime approaches one over the l.n. of the cap, which is such a CS-ey way to state it that I couldn't stop myself from writing natural log "l.n." even in natural language), which I still plan to do, but I planned to do it with what bill wurtz might call a Greekification overload.  I still hope to, although I had been thinking of giving up before my liver did, but with this post, I guess I'm going anemtheic.  It came from a deep dive into the (mostly pirated; I currently endeavor to finish this before the stolen Hamilton that showed up in my suggestions on guess which video in the other window ends, since it will certainly have been pulled by then) literature following skimming up on a course on number theory, in particular how they proved the PNT, which I was familiar with using, but had never learned to prove.  I was rather encouraged by the fact that at the time (they've changed them now, sadly) the lecture notes in question, the fifteenth in the series, opened with a definition of the derivative, then made it look easier than it really was.  I'm not going to go into the details at this time, since that would really only deceive you - I'll gloss over them at the end of this post, as well as the reason I gloss over them.  Basically, Newman found a relatively easy way to prove a restricted case of what's known as the "Wiener-Ikehara theorem" (which I can't help but read as "Wernicke-Korsakoff theorem"), that if you can show that if a function continuous in the complex sense (that is, the limit can come from any direction in the complex plane) for real part strictly greater than 1 can be expressed there as the integral from 1 to infinity of an everywhere positive, everywhere increasing function divided by the parameter of integration to the power of the parameter of the initial function, and the difference between that (initial) function and 1/(x-1) converges uniformly, meaning that in the usual "for every epsilon there is a delta," that single delta is for every imaginary component, not just that there is a delta for each imaginary component (to show it has an analytic extension will do), as the real part of x approaches 1 from above, then the function approaches the parameter in ratio as the parameter gets large.  Newman came up with a simple proof of an "auxiliary theorem" of Ingham, the seemingly obvious fact that if a function is analytic for all values with strictly positive real parts, and can be expressed there as the sum (Newman has sum, and I would have used sum in my first concept, but the proof is easily adapted to the integral) from one to infinity of some sequence of coefficients of absolute value less than some upper limit, divided by the index to the power of the parameter of the function being defined, and this can be extended to an analytic function whose domain includes the imaginary line, then the function at zero is equal to the sum of the coefficients.  This is enough to show that the Wiener-Ikehara theorem is true provided that the function in the integral increases no more quickly than a constant multiple of its parameter, basically by showing that the difference between the function you wish to put an asymptotic bound on divided by the square and 1/x (which doesn't converge per good old Nicole Oresme - no, not the space Randroid) converges.

...well, Hamilton (the Federalist, not the mathematician) has brought me to the massive copy-paste from the PNT post.  Now I have an excuse to kill myself further.

(Intermezzo: In reality, around the same time I was about to give up, I found an unpublished paper, written long after I'd begun my idiotic endeavor, from a Dutch physics professor that, doing some poking around his site, was really less a "paper" than a very formal blog post, which was basically a hit piece on Newman.  I disagree that Newman's proof is "not simpler," as he says, to modern eyes, but it's less suited to my purposes, so this paper has given me a fourth sheet to a second wind.)

(Several days later... but also weeks earlier... unlike the fictional Achaemenid Hemingway, I write drunk and edit drunk)

So the goal now is to explain to the nonexistent gremlins that might actually read this blog and yet not understand what the people who might read Newman's paper would call "basic math" how to prove the auxiliary theorem, and how it leads to the restricted version of the Wernicke-Korsakoff theorem.  Well, let's start with how you might explain it to someone fresh off a complex analysis course.  You choose two largish numbers, let's say natural numbers, a radius and a length of the partial.  So let's come up with a D (by pure coincidence, the grade I got in complex analysis) shape, that is, a semicircle of the radius chosen to the right of the imaginary line, the ends connected by a curve that in between is to the left of the imaginary line except at a finite number of points (the actual shape hardly matters), and inside the contour there are no points where the function in question isn't analytic (if the function has an analytic extension to and including the imaginary line, for any finite length of the line, it must have such an extension to some finite length beyond, since there can only be finite singularities in a finite area, since by chopping that area into quadrants continuously, you can come to an arbitrarily small area with infinite singularities, which kind of fucks up the whole "singular(ity)" thing).  Now, the function we're actually integrating on that contour isn't the function we get from the series; instead, it's that function multiplied by one plus the square of the point in question divided by the chosen radius, all multiplied by the length of the partial to the power of the point in question and divided by the point in question.

Now, it'd be clear to our hypothetical student that this would be equal to the value of (the limit of) that function times its own parameter at the origin times two times pi times i, because when you have a contour like that, where the function both on and everywhere inside the contour is analytic except at a finite number of points, you can express it as that imaginary coefficient multiplied by what's known as the "residue," which, as long as the clause that follows this exists, will be the value of the product of function and the transformation of the by the point you're looking for, at the point you're looking for.  In this case, the only such point is the origin, since you've divided a function that's everywhere analytic by the parameter itself.  So what's to be proven is that that contour integral approaches the partials as their length grows large.  For that, let's first consider each point on the semicircle - first consider the factor of one plus the square of the ratio, bearing in mind that on that semicircle the magnitude will be equal to the preset radius, so this is a point on the unit circle translated one unit, so what you've got is a side of a triangle of which the other two sides are of length 1 and 1 and the angle between them is pi minus twice the angle of x, and by the law of cosines and the fact that the cosine of pi minus a given angle is the negation of the cosine of that angle, you've got for the third side the square root of the sum of two and twice the sum of the cosine of twice the angle, which would be twice the angle.  Then we'll consider the initial function.  Since the function in the original statement of the theorem was bounded, the absolute values of the remainder around the semicircle, minus a sufficiently large partial, will be bounded by twice the original bound divided by the square of the chosen radius by the argument above combined with some facts about power sums.

As for the left side of the contour, considering only the ultimate sum (that is, the sum of the partial and the remainder), that goes to zero as the length of the partial grows, all else kept constant, since the length is finite and it has that factor of the length raised to the parameter, which has a negative real part "almost everywhere."  (A negative real part puts it on the denominator by the definition of a complex exponent.)  Now considering only the partial, that doesn't have the singularity since it's only a partial, so the left side of the contour negates the right.  Therefore, the difference is of absolute value bounded by the radio of a constant to the chosen radius plus a term that can be made arbitrarily small by extending the partial.  Therefore, by choosing a sufficiently high radius and length, an arbitrarily small bound can be placed on the remainder, so the series must converge.

So let's check the Greekification level.  Greekification underwhelming.  Let's fix that by breaking down the implicit train of thought of that student step by step.

Let's say there were no singularities in the region.  Then, since we know there exists a derivative at every point, the Cauchy-Riemann equations hold - that is, since for the derivative to exist, the Newton quotient must converge from every approach, including those parallel to either axis, some quick algebra shows that the derivatives of either component wrt its own parameter are equal, and the derivatives of each component wrt the opposite parameter negate one another.

So now let's chop the region up into a bunch of regions each of which can be swept out by an unbroken line in either a horizontal or a vertical direction.  This can get annoying (that wacky Jordan curve theorem) in some cases, but fortunately, all that comes up in this case is a D with a circle cut out of it.  Showing it for each of these regions shows it for the whole region, since on the cuts, the contours go in opposite directions and negate one another.

So now let's consider what the contour integral actually is; the differential is between points an infinitesimal distance apart on the contour.  So parameterizing it, you multiply the function by the sum of the derivative of the real part and i times the derivative of the imaginary part, all by an infinitesimal part of the parameter.  (Only I or the fictitious Epimenides Paul constructs to escape his denunciation of the euhemerism necessary to his own monotheism could abuse notation in natural language!)

So to begin with, let's just consider the product of the real part and the real differential, or rather, the difference between that product's values at opposite ends of a cut in the imaginary direction.  Per f.t.o.c. (the theorem that states the difference between two values of a thing is how much the thing's changed), you get that it's the integral of the partial of the function wrt the imaginary coefficient.  Since the contour goes counterclockwise (1 -> i -> -1 -> -i), and positive imaginary is up, the subtrahend goes in the positive real direction and the minuend in the negative, so the sign is reversed.  Thus the integral within can be expressed in terms of the integral around the contour, both dimensions now taken into account.

Likewise, let's consider just the difference in values of the product of the imaginary part and the imaginary differential at opposite ends of a cut in the real direction.  Same argument to get to the partial, but this time, the subtrahend points in the negative real direction and the minuend in the positive, so the sign isn't reversed.  Therefore, what you've got is the integral of the difference between the two partials, which is zero by the Cauchy-Riemann equations.

Now let's consider the imaginary parts of the product, that is to say, the real part by the imaginary differential and the imaginary part by the real differential.  The former consider at opposite ends of a cut in the real direction, the latter in the imaginary.  Unlike before, both the real and imaginary parts end up in the "wrong" order this time because of the extraneous i.  Therefore, we get the sum, which is also zero by the Cauchy-Riemann equations.

So now that you've got that you get zero in any region where there are no singularities, what if there are isolated singularities?  Then what you do is that you note that when you're very very close to the singularity, the value at every point, times the complex difference between that point and the singularity, is very very close to the residue.  (This, the limit that is, is actually the definition of the residue; the fact above follows pretty plainly from this.)

I said before, to think geometrically, we have to cease to think geometrically.  That is, this Cartesian paradigm we've been working in so far would have to be put aside, only recognizing the integrals as the Riemann sums they are.  To that end, the first step would be to reframe this in terms of polar rather than Cartesian coordinates, which would require rewriting the Cauchy-Riemann equations.  To that end, they have an equivalent in polar coordinates: i times the radial derivative of the function is equal to the angular derivative of the function divided by the radius, as can be seen by taking the equivalent equations in polar coordinates, still separating the function in Cartesian terms, the radial and tangential directions still being orthogonal enough to support the arguments from before (basically just a coordinate transformation, albeit one that would depend on which point you were considering), and adding them together.

To actually do the rewriting, it'd probably make sense to replace the left-hand side of the D with two lines radial from the origin running from the extension of the semicircle to the radius of the smaller circle from step 7, connected by an arc of the latter circle.  Because this is still to the left of the imaginary line a.e., the argument that it goes to zero still holds.  The advantage is that now we have one unbroken region.  However, now steps 4-6 above have to be rewritten.

Well, the basic idea, obviously, is that instead of lines in the real and imaginary direction, it's lines in the radial direction and arcs concentric around the origin.  The problem here is that you no longer have such a simple infinitesimal on the contour itself.  Integrating along the radial parts of the contour (the bit left of the imaginary line), the infinitesimal part of the variable is equal to the infinitesimal of the radius, times the variable itself, divided by the radius itself.  Likewise, integrating along the contours, the infinitesimal part of the variable is equal to i times the infinitesimal of the angle times the variable itself.  Therefore, the basic idea is that instead of applying the Cauchy-Riemann equations to the function itself, you have to apply them to the function divided by its variable, which is no hurdle, since a differentiable function divided by its variable, so long as you're not at the origin, is still differentiable.

So for the Greek version, you would use the method of exhaustion, putting finite limits that can be made arbitrarily small on the difference by using what would be recognizable to the modern reader as Riemann sums.  This would take a couple steps, but the same ideas allow bounds that can be made arbitrarily small.  Of course, this would be considering only the real part, which since we're not actually considering geometry, wouldn't be that hard, switching what equate to the real and imaginary parts of various functions in and out of the actual calculations as necessary.

So I've convinced myself that, in theory, it would be possible to do this but it seems extremely artificial, unlike, say Ramanujan's approximate squaring of the circle using 355/113.  Multiplying the logarithm of the zeta function by the exponent and the sum above leads to something so weird and unintuitive, and working out the Cauchy-Riemann equations in polar coordinates would be rough, but probably worse than that would be the fact that an angle would have to be chosen to put part of the sector to the left of the imaginary line, and it would have to be shown that a finite such angle existed.  The basic idea is that there have to be finite zeros, since otherwise there would have to be a point with infinite zeros within any finite distance of it (chop it up into a finite but arbitrarily large number of little bits, and no matter how small those bits are, one of them must contain infinite zeros), and that would wipe out the Taylor series around that point.  Yeah... that'd be tough to prove.

For that reason, I've given up on this tactic, but that friggin' Müger has convinced me of a better way to kill myself.  Again, I find Newman's approach more elegant, but both of Müger's - his other being a "Selbergian" proof (i.e., in the vein of Selberg's mid-century proof of the PNT - in his case, the basic idea is showing that since the sum of the second Chebyshev function - which I won't explain later, but it's just like the first Chebyshev function which I will, only you pretend that prime numbers reappear whenever in reality they have a power (i.e., 1,2,3,2,5,6,7,2,3,10,...) - of a given number over each denominator in turn up to that number is the same as the sum of the natural logs up to that number, and from that and the fact that that's pretty close to what you get when you pretend it's identity you can show it must be pretty close to identity), which one might think should be my initial approach, but the original is far too convoluted to fit, and right now it seems even Müger's more elegant one doesn't meet my needs as well as his other - lend themselves better to my approach, and for that reason, that's (...that one, I mean, whichever one it is I do mean) the approach I'll be taking.

つづく…

Actually, right, before I つづく, I forgot to gloss over why it is that that seemingly obvious statement demonstrated above implies the theorem that went unproven for a century.  First, that the prime number theorem is equivalent to the statement that the first Chebyshev function (which is the sum of the natural logarithms of the primes less than the input) increases at parity, and second, that the statement that the first Chebyshev function increases at parity is implied by the above.

As for the first, one bound comes from the fact that obviously the prime counting function times the log of the highest prime is going to be greater than the sum of the logs of the primes; the other bound can be established by expressing the prime counting function as the sum for all primes up to the parameter of the quotient of the log and the log.  For the denominator there, convert the fraction to the integral of the negation of the derivative from the index to infinity, and separate that into the integrals from the sum's index to the parameter of the initial function and from the parameter to infinity.  The parameter to infinity will be the same for each term, so for that part of the sum you've just got the first Chebyshev function divided by the logarithm.  The other part of the sum would come to the integral of the first Chebyshev function of the parameter of integration divided by the product of the parameter of integration and the square of its log from two to infinity, since as you break it down, you get that integral along the subsets beginning from each prime in turn.  Accepting that the first Chebyshev function increases at parity, you can, to a finite error, cancel it with the parameter of integration in the denominator, leaving the reciprocal of the square of the logarithm.  The derivative of the parameter divided by the square of the log of the parameter differs from the reciprocal of the square of the logarithm by twice the reciprocal of the cube of the logarithm, which vanishes in comparison, so they twiddle one another.  Therefore, what you've got for the prime counting function is the parameter divided by the log of the parameter plus/minus the parameter divided by the square of the log of the parameter, and again, the latter disappears, so the former is twiddled.

As for the second, let's consider what's known as the zeta function.  Right now, I'm not going to go into excessive detail, since having committed to going after this lunacy, I'll be doing that soon anyway.  So for now I'll state by fiat that, where the following exist, it can be expressed as:

The sum of the reciprocals of the counting numbers, starting with one, to the power of the input.

The alternating sum (i.e., every other term, starting with the second, is negative) of the same, all divided by one minus one-half to the power of the input.

The product of the reciprocals of one minus the reciprocal of each prime to the power of the input.

These come to the same result where they converge; the first and third can be shown fairly quickly to converge for all inputs with real part greater than one, and the second converges for all inputs with real part greater than zero, unless the input is exactly 1.  Moreover, if you multiply the second by one less than the parameter, the product will converge there as well (fiat again yay fiat! ...also l'Hôpital's rule combined with the alternating series test; the alternating harmonic series' convergence to log 2 means it'll converge to one).  Not only that, they're complex-differentiable, since the terms are complex-differentiable, and where they're not zero, the same is true of the logarithm.  What's important is the logarithm of the product of the parameter and the zeta function of one greater than the parameter.  By the second definition above, at least the product exists and is complex-differentiable for all inputs of real part strictly greater than zero.  So wherever the product exists and is nonzero, the logarithm will also exist and be complex-differentiable.  So what's next is to show that the product is nonzero where the real part is one, which, again, I'll leave for the next bit, saying for now only that if expression 3 above blew up in the right-neighborhood of any point with real part one, expression 1 at nearby points would blow up at that point with real part one and double the imaginary part based on some trig identities, and due to expression 2 that's impossible.

Okay, so to fit this to the restricted version of the Wernicke-Korsakoff theorem, which is, to remind, that if the function is nondecreasing and grows at a rate bounded by a constant multiple of its input - which implies that the integral from one to infinity of it divided by its parameter to some power must converge when the real part of that power is strictly greater than two (as well as for complex numbers with real part two and nonzero imaginary part) - and difference between the integral from that parenthetical and one over two less than the power converges to a limit wherever the real part is two, including two itself, then the function twiddles its own parameter.  The goal is to prove this for the first Chebyshev function.  First, the boundedness of the growth; this I'll have to go into detail on, since it won't be necessary in the next post.  It's enough to show the first Chebyshev function is at most the parameter by 1.39 (log 4 rounded up).  I so ache to say that “Chebyshev said it, and I’ll say it again, there’s always a prime between n and 2n," but what I’m actually trying to show is almost the opposite - that the product of all the primes between n and 2n is less than four to the power n; since the natural logarithm of this would be difference in the first Chebyshev function at n and 2n, this inequality would imply that this difference is less than log 4, which combined with the facts that the value at one is zero and that the function is nondecreasing would suffice to show that the function will always be less than the parameter by log 4.  So to show this, you only need to rely on the fact that the binomial coefficient 2n choose n is an integer less than four to the n; since this is the quotient of the factorial of 2n and the square of the factorial of n, it must be divisible by every prime in between, so it's greater than their product.

So the first Chebyshev function grows at a rate bounded by a constant multiple of its input, so the next thing would be to show that the difference specified above converges.  The way you do this is by noting that, by the definition of the first Chebyshev function, the integral from one to infinity of it divided by the power of the parameter of integration to something of real part greater than two would, from a similar argument as before to establish the function's asymptotic lower bound, yield the sum of the integrals of the logarithm of each prime divided by the product of one less than the power in question and the prime in question to that power one less.  Consider that the derivative of the logarithm of the zeta function, by definition 3 above, will be the negation of the sum of the logarithm of each prime divided by one less than that prime to the power of the input; if rather than the log of the zeta function of the input you consider that of one plus the input, and consider the difference between that and the integral just laid out, you'll get a difference that converges as the difference goes to one, to the sum of the logarithm of each successive prime divided by the difference between the square of that prime and the prime itself, and since adding this up for all natural numbers two or greater converges (to one), it has to converge for just the primes.  Now, since the derivative of the log is the reciprocal, the difference between the derivative of the log of the zeta function of one greater than the variable and one over the variable will be the derivative of the log of the product of the variable and the zeta function of one greater than the variable.  By expression 2 of the zeta function above, that converges, and it's within a term that also converges of the difference we're trying to show converges, so that difference converges.  (That it converges everywhere else on the line we've already seen.)  So, as Eddie Izzard might wrongly say, yeah.

つづく…

[douchebagbrainwaves]

HOW TO START A BIG DEAL

Read their job listings. And she too knows the creative director of GQ. This phenomenon is one of the reasons, though they may not be easy. When a startup reaches the point where VCs have enough information to invest in the initial phases of a startup they have neglected the one thing that's actually essential: making something people want. The VCs also insist that prior to the deal the option pool be enlarged by an additional hundred shares. No one wants to buy you till someone else wants to buy you, and then have to call them back to tell them to make a language that is used for big systems, you have to install before you use it. Doctors discovered that several of his arteries were over 90% blocked and 3 days later he had a quadruple bypass.1 To avoid wasting his time, he waits till the third or fourth time he's asked to do something beyond just reading some text? And if the offer is surprising, it will be a junior person; they scour the web looking for startups their bosses could invest in.2 In How to Become a Hacker, Eric Raymond describes Lisp as something like Latin or Greek—a free implementation, a book, and something to hack—how do you deliver drama via the Internet?

Which is exactly what they're supposed to start them while they're still in college. But is it really impossible? It's so easy to understand what it meant. With angels we're now talking about venture funding proper, so it's time to introduce the concept of exit strategy. But they're also desperate for deals. Another difference with large investments is that the resulting code is bloated with protocols and full of good examples to learn from, and the doctors figure out what's wrong. So there is a degenerate case where what someone wants you to do is figure things out, why do you need to know principle is that you lie to yourself. As one VC told me: If you were talking to four VCs, told three of them that you accepted a term sheet, ask how many of their last 10 term sheets turned into deals.3

The biggest ideas seem to threaten your identity: you wonder if you'd have enough ambition to carry them through. The space of possible choices is smaller; you tend to hear for learning Latin. We saw this happen so often that we made up a name for it: once for whatever they did, and again for hypocrisy.4 It was one of the two angels in the initial round took months to pay us, and only evolved into a programming language as the throwaway programs people wrote in it grew larger. There are only two things you need initially: an idea and cofounders. What was special about Brian Chesky and Joe Gebbia was not that they were stupid. Even if you don't, a low initial offer will demoralize you and make you easier to manipulate.5 Facebook got funded in the Valley and not Boston. I was a philosophy major. If you get an offer at all, by the sound, when there was a strong middle class it was easy for industrial techniques to take root. Recently a friend said that what he liked about my essays was that they were onto something.6

The second or third tier firms have a much higher break rate—it could be as high as 50%. When we started Viaweb, we had 1070 users. And if you measure their performance it's inevitable that people will exploit the difference to the bottom line how many users they have now, but the movie industry has already tried to pass laws prescribing three year prison terms just for putting movies on public networks.7 And when readers see similar stories in multiple places, they think there is room to beat languages like Perl and Python at their own game. Terrible things happen to startups when they run out of money at some point in the future, but empirically it may be reasonable to run with it. If I met an undergrad who knew all about convertible notes and employee agreements and God forbid class FF stock, I wouldn't think here is someone who is way ahead of their peers. Think about what you have to write in an hour. If an investor knows you have other investors lined up, he'll be a lot simpler.

No, there will also be a need for such infrastructure companies. Another way to figure out who the client is. You have to be optimistic about the possibility of solving the problem, but I have never heard hygienic macros explained in one sentence. In fact they were more law schools.8 The path it has discovered, winding as it is, right?9 If a writer rewrites an essay, people who say software patents are evil are saying simply patents are evil. Once you had enough good startups in one place, it would create a self-sustaining chain reaction.

To many people, rather than by, say, making the language strongly typed. There patents do help a little. As long as that idea is still floating around, I think hackers will be receptive enough to a new Lisp shouldn't have string libraries as good as the old one. And in fact one of the 10 worst spammers.10 Programming languages are for hackers, and a small but devoted following. Indeed, it evolved from actual warfare: most early traders switched on the fly from merchants to pirates depending on how strong you seemed. There are two possible problems with prefix notation. The big bang guys. Common Lisp has neither.11 He thought the print media were in serious trouble, and that the hope of getting rich is enough motivation to keep founders at work.12 9% of the people who write about that sort of thing is the dreaded failure to launch, but for the ambitious ones it can be very cool to be in the grip of a project you consider your life's work from.13 If your startup grows big enough, however, trust your gut.

Notes

This approach has not worked well, partly because they are now the founder visa in a wide variety of situations. Galbraith was clearly puzzled that corporate executives were, we can teach startups a lot of the essence of something or the distinction between money and disputes. Currently we do at least 10 minutes more.

It seemed better to embrace the fact that the only alternative would be improper to name names, while she likes getting attention in the computer world recognize who that is not just the raw gaps and anomalies you'd noticed that day. 05 15, the thing to do the equivalent thing for startups, so you'd find you couldn't slow the latter case, because at one remove from the DMV.

Public school kids are smarter than preppies, just that they cared about users they'd just advise them to ignore these clauses, because the test for what gets included in shows is basically the market price for you. So it is possible to transmute lead into gold though not economically at current energy prices, but he got killed in the 1920s to financing growth with retained earnings was one cause of accidents.

There are two ways to do. That's the trouble with fleas, they tended to be able to invest more. Its retail price is about 220,000 drachmae for the others. But that being so, why is New York.

If this is why we can't believe anyone would think Y Combinator.

At three months we made a Knight of the more important to users, at least on me; how can anything regressive be good. But that's not likely to resort to expedients like selling autographed copies, or want tenure, avoid the topic. They'll tell you them. Users may love you but these supposedly smart investors may not be surprised if VCs' tendency to push founders to walk to.

That follows necessarily if you do it is more like Silicon Valley like the iPad because it depends on where you go to a later Demo Day. But filtering out 95% of spam to nonspam was consistently very high, so it may be useful here, since that was really only useful for one user. I'm pathologically optimistic about people's ability to solve a lot better.

Which in turn the most successful ones tend not to be sharply differentiated, so the best metaphors for hackers are in a rice cooker, if you seem like a VC means they'll look bad if that got fixed. They shut down a few actual winners emerge with hyperlinear certainty. We walked with him for a year, but also the fashion leaders.

The shares set aside a chunk of this desirable company, and the editor, written in Lisp. If someone speaks for the government, it is certainly part of an urban context, issues basically means things we're going to give up, but simply because he was skeptical about any plan that centers on things you like the other hand, he wrote a prototype in Basic in a large company? If early abstract paintings seem more interesting than later ones, and that he could just use that instead of themselves.

Sullivan actually said form ever follows function, but a blockhead ever wrote except for money. If you actually started acting like adults. Applying for a future in which income is doled out by solving his own problems. Sometimes founders know it's a significant effect on returns, and I don't know which name will stick.

If they were saying scaramara instead of bookmarking. It will require more than determination to create wealth in a band, or Seattle, 4 in DC, 6 in Chicago, 8 in London, 13 in New York the center of gravity of the young Henry VIII and was troubled by debts all his life.

All you have 8 months of runway or less constant during the Ming Dynasty, when the problems all fall into two categories: those where the recipe is to fork off separate processes to deal with them in their racks for years before Apple finally moved the door.

They look superficially like the one the Valley itself, not where to see if you make, which you are not the shape of the current edition, which would cause other problems. Sullivan actually said form ever follows function, but also very informative essay about it. Programming languages should be working on your thesis.

Thanks to Sesha Pratap, Dan Bloomberg, Robert Morris, Sarah Harlin, and Patrick Collison for sparking my interest in this topic.

[nancyedimick]

Another oblivious critique of Neil Gorsuch and Originalism

In my previous post Out of touch law professor criticizes Judge Gorsuch and “originalism,” I characterized the argument by Richard O. Lempert, the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, University of Michigan, as “ignorant” because it was “apparently unaware of–and uninformed by–the past 25 years or more of originalist theory, methodology and practice.” Now in the National Law Journal (free registration required) comes a new and similarly flawed critique of Judge Gorsuch by David Rudenstine, a professor of law at Benjamin N. Cardozo School of Law at Yeshiva University (and its former Dean), which is entitled Gorsuch’s Adherence to Originalism Should Keep Him From SCOTUS. I am sad to say that this piece, like Professor Lempert’s, presents a highly distorted description of originalism, which once again attacks a straw man. Let’s see what Professor Rudenstine has to offer (with my additions in bold):

Many oppose the nomination of Neil Gorsuch to the Supreme Court because, as one Washington Post headline trumpeted, he favors “big business, big donors and big bosses.” While I agree that the values Judge Gorsuch supports or rejects are cause for deep concern, I want to offer a different reason for opposing Gorsuch’s nomination.

Oops, even before we get to originalism, we are off to a bad start. Professor Rudenstine says he shares the concerns about “the values Judge Gorsuch supports or rejects,” but here is the oath he took as a federal judge: “I, Neil Gorsuch, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.” So what matters is not whether Judge Gorsuch has ever ruled in favor of “big business, big donors and big bosses” or (as the oath specifies) “the rich” but whether he is biased in favor of these groups. And to answer that question requires an analysis of the merits of the legal arguments presented by the parties before him. About this Professor Rudenstine offers us nothing, and I strongly suspect he has not studied the arguments and facts of the cases decided by Judge Gorsuch to reach an expert opinion about his bias or lack thereof. And yet he published his agreement with the “many” who hold such views. (For links to detailed analyses by Ed Whelan of the very few cases on which this charge is based, see here.)

On the other hand, if Professor Rudenstein judges judges by who they rule for, rather than the merits of the legal arguments presented to them by the parties–whether poor or rich–then he favors federal judges who violate rather than adhere to their oaths. But, without knowing him personally, I would be loath to attribute such a position to a fellow law professor, so let me now turn to his critique of originalism.

I would vote against any nominee to the Supreme Court who stated that he or she adhered to originalism in construing the U.S. Constitution. Given that Gorsuch’s judicial writings are widely understood as presenting him as an originalist, that would be my main objection.

Here’s why.

At its heart, originalism claims to eliminate improper judicial law-making in construing the Constitution. It does that by promising that historical materials pertaining to the Constitution’s adoption contain definitive answers to contemporary constitutional questions.

That attractive idea falls apart upon analysis.

The theory requires that we determine whose understanding of the original Constitution is definitive. But originalists disagree on this critical point.

Some concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.

While it is true that some originalists have favored framers intent or ratifiers understanding, most today seek the original public meaning of the text at the time it was enacted. Regardless, for this criticism to be telling, Professor Rudenstein needs to identify circumstances where these different stances would lead to different results or outcomes. After all, the meaning of the words in the text to its framers, to its ratifiers, or to the general public, were very likely to be identical, since the meaning of the English language they employed was the same for all. Indeed, even originalists who ultimately seek the original public meaning of the text consider the meaning attributed to the text by its framers and ratifiers as probative evidence of original public meaning.

To take two examples where I am familiar with the available evidence, the word “commerce” in the Commerce Clause and “arms” in the Second Amendment meant the same thing to all three groups. So the practical constraining effect of originalism is preserved unless these differing audiences can be shown to have had differing understandings of the text, which is quite unlikely. At any rate, Professor Rudenstein offers no such examples of differential meanings.

Although this is not what he wrote, Professor Rudenstein may have in mind the difference between the overwhelming proportion of originalists who seek the original public meaning of the text, and the small minority who today seek the original framers intent. Even here, the results of these inquiries are likely to be identical. But where they differ–as, for example, Justice Scalia’s conclusions about the original public meaning of the Second Amendment in Heller differed from Justice Stevens’ analysis of original framers intent–we can criticize a judge for applying a version of originalism we consider to be incorrect, just as we can criticize the judge for employing any other incorrect approach to constitutional interpretation.

As with Professor Lempert’s critique, this objection by Professor Rudenstein betrays the fact that he does not fully understand the position he has chosen to attack. He continues:

But assuming originalists did agree on this matter, this interpretative methodology is fundamentally flawed for additional reasons.

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

This is fundamentally inaccurate. Originalism does not require “judges to to be historians.” It merely requires judges to identify the meaning–or communicative content–of the text of the Constitution. More specifically, it requires them to identify where that public meaning when enacted differed from the meaning these words have today. For example, although the Supreme Court has never expanded the actual meaning of the word “commerce” in the Commerce Clause (instead, it expanded the powers of Congress by a capacious construction of the Necessary and Proper Clause), some today may identify the word “commerce” with “economic activity,” though its original meaning was narrower than that. At the time of the Founding, and at least into the mid-Twentieth Century, the word “commerce” referred to an activity distinct from the economic activities of agriculture, husbandry, or manufacturing. While the latter words referred to different manners of producing things, the former referred to the trade and transportation of things that are so produced.

You don’t need a PhD. in history to discover this. But regardless of whether you do, the scarcity of a judicial time and expertise recommends a division of labor in which academics investigate and debate the evidence of original meaning, and judges rely upon the conclusions that emerge from this scholarly peer reviewing process. Moreover, the Constitution is a finite document. As the meaning of each term is settled, judges need only learn the conclusions of this research as these matters are investigated or settled. Once correctly identified and incorporated into judicial decisions, judges are free to move on to other matters.

But in any rate, neither judges nor scholars ought to employ “law office history,” if what is meant by this is “cherry-picking” evidence to fits the conclusions they may wish to reach. An argument against bad originalism is not an argument against originalism.

By the same token, professional historians ought not employ “history office law” that misunderstands the legal doctrines and concepts of the period they are studying. Historians today are largely preoccupied, not with linguistic usage, but with the motives and purposes of historical figures, as well as the effects of their actions. This is why many historians who engage in constitutional analysis insist on reducing “meaning” to the intentions of the framers, by which which they mean what the framers hoped to accomplish rather than what they said. In other words, many historians today adhere to the old proto-originalism based on original framers intent–the position that was tellingly criticized by such nonoriginalists as Paul Brest in the 1980s–the vision of originalism that Professor Rudenstein rejects in this essay!

Originalism assumes that historical evidence yields definitive and comprehensive answers to contemporary constitutional questions. The fallacies here are evident. History is complex and historical inquiries into important and open-ended questions are likely to yield a variety of plausible answers to the same question.

Thus, the premise of originalism is naive, unrealistic and unsupportable.

No, public meaning originalism assumes that language had a meaning–or communicated content–when it was adopted, just as the English language that Professor Rudenstein employed in his essay has a public meaning today. How else are we to understand what he is intending to say when he refers to “diaries, letters, memoranda and newspapers”? He certainly would be unwise to adopt his own private language in which these words refer to, say, methods of public conveyances. That would irrational on his part, as it would have been irrational for the framers of the Constitution and its amendments to use words, the public meaning of which failed to convey their intentions. (An usual exception to this were the various euphemisms the framers of the original Constitution employed to refer to slavery. But because the context of these euphemistic p would have conveyed to the general public that these clauses referred to slavery, that was their original meaning.)

Moreover, what would late 18th century figures have to say about the constitutional authority of a president to use atomic weapons in a peremptory strike against a foreign power when the Congress has not declared war and with which the United States was not then involved in a military conflict?

Are we really looking for “their” answers to such questions, or are we wondering what they would have thought about the Constitution’s meaning if they lived in our time and knew what we now know? This is magical and it makes originalism a farce.

I can assure Professor Rudenstein that originalists are not looking for these things, which the “living originalist” Jack Balkin helpfully labeled “original expected applications.” Way back in the 1980s, I disparagingly characterized the position Professor Rudenstein is describing as that of “channeling the framers.” There is a rich literature about the difference between identifying the communicated content of the text and applying that meaning to particular facts and circumstances–which sometimes goes under the rubric of “interpretation” vs. “construction.” Originalist and nonoriginalist scholars who are familiar with originalism know to what I am referring. Professor Rudenstein would be wise to avail himself of this literature before opining further on this subject.

Originalism also implodes over rights not mentioned in the Constitution — so-called un-enumerated rights — but which are nonetheless considered fundamental.

For example, the text of the Constitution does not guarantee the right to have children. Nonetheless, originalists agreed with others that this is a basic right and that the Constitution protects it as it does rights explicitly mentioned in its text, such as the right to a free press, free speech and the free exercise of religion.

Thus, if a state made it a felony for a person to be the biological parent of more than one child, an originalist would invalidate such a law because it conflicts with an un-enumerated right that should be protected. While that result would be generally applauded, it is flatly inconsistent with originalism’s promise to constrain judicial discretion.

As someone who has been investigating the original meaning of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment for decades,  I can assure Professor Rudenstein that these clauses do have an original meaning–though there is some disagreement among originalists about it. (Most disputes among originalists about unenumerated rights, however, is not about meaning but about the appropriate judicial role, which is the subject of Our Republican Constitution.)

But the issue he is raising about “judicial discretion” is a bit to complicate to unpack, even in a blog post as lengthy as this one. Suffice it to say that no originalist claims that judges have zero discretion or choices to make in applying the the original meaning of the text to the facts of particular cases. They merely claim that the original meaning of the text constrains the decision making of judges to the extent that this meaning must remain the same until properly changed; and that judges cannot properly change the meaning of the text “in light of changing circumstances.” Unless Professor Rudenstine can produce an example of an originalist who claims that the original meaning of the text eliminates all judicial discretion, then he is attacking a straw man.

At this point, it is only fair to ask Professor Rudenstine to identify his own approach to constitutional interpretation and application to see if it performs better or worse than originalism. For is that not the fair test of the relative strengths of competing constitutional approaches? My guess is that, whatever his approach, it will perform worse by every criteria he judges originalism as wanting. But I cannot know this for certain until he informs readers like me of his own allegedly superior approach.

Lastly, although this is not an exhaustive list — the framers of the Constitution were ultimately pragmatists who endorsed a brief Constitution. That meant that only the Constitution’s “great outlines [were] … marked” and its “important objects” designated. The duty of all who were called upon to construe the Constitution was, as Chief Justice John Marshall wrote, “never [to] forget that it is a constitution we are expounding,” by which he meant that it was written in general terms to permit it to be construed in light of changing circumstances.

Thus, the Supreme Court appropriately adapted the Constitution to modern technology when it applied the Fourth Amendment to telephone surveillance and broadly construed the commerce clause power. Nonetheless, an originalist must reject such sensible thinking as inconsistent with the theory’s basic tenets.

Uh, no. With respect to the Fourth Amendment, they mustn’t because it isn’t. But with respect to the Commerce Clause, they should, because it is.

However, what to do about these “constitutional mistakes” today is separate issue than whether or not the original meaning of the text when enacted is discoverable. Many originalists adhere to the doctrine of stare decisis or precedent. And even an originalist (like me) who doubts that erroneous past judicial decisions can ever trump the original meaning of the text, can hold the view that settled cases have been settled–res judicata–but that the mistaken reasoning of these decisions of long-dead justices should not rule us from the grave; that, even if we do not reopen previously decided cases, originalism has a gravitational force in deciding future ones. In particular, erroneous reasoning should not be further extended, and we should gradually return to the original meaning in a case-by-case fashion as new statutes are enacted and challenged.

Because of its fatal flaws, originalism fails to be descriptive of more than 200 years of Supreme Court history and makes promises that cannot be kept.

Anyone who is as able as Gorsuch knows that. As a result, instead of being a modest judge who states that he will not make law, he knowingly misleads the American public as to the scope of discretionary authority originalism invests in a judge. In my mind, this disqualifies him from becoming a Supreme Court justice.

Here, by so publicly claiming that an honorable man like Neil Gorsuch is “disqualified … from becoming a Supreme Court justice” because he “knowingly misleads the American people,” Professor Rudenstine is arguing in a manner unbefitting a member of the academy. Nevertheless, even though he chose to publish this woefully inaccurate and unfair account of originalism, I would not characterize Professor Rudenstine the way he characterizes Judge Gorsuch. Rather than “knowingly misleading” the readers of the National Law Journal, a more charitable explanation is–whatever else may be his academic expertise–that Professor Rudenstein just doesn’t know what he’s talking about.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/14/another-oblivious-critique-of-neil-gorsuch-and-originalism/

[wolfandpravato]

Another oblivious critique of Neil Gorsuch and Originalism

In my previous post Out of touch law professor criticizes Judge Gorsuch and “originalism,” I characterized the argument by Richard O. Lempert, the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, University of Michigan, as “ignorant” because it was “apparently unaware of–and uninformed by–the past 25 years or more of originalist theory, methodology and practice.” Now in the National Law Journal (free registration required) comes a new and similarly flawed critique of Judge Gorsuch by David Rudenstine, a professor of law at Benjamin N. Cardozo School of Law at Yeshiva University (and its former Dean), which is entitled Gorsuch’s Adherence to Originalism Should Keep Him From SCOTUS. I am sad to say that this piece, like Professor Lempert’s, presents a highly distorted description of originalism, which once again attacks a straw man. Let’s see what Professor Rudenstine has to offer (with my additions in bold):

Many oppose the nomination of Neil Gorsuch to the Supreme Court because, as one Washington Post headline trumpeted, he favors “big business, big donors and big bosses.” While I agree that the values Judge Gorsuch supports or rejects are cause for deep concern, I want to offer a different reason for opposing Gorsuch’s nomination.

Oops, even before we get to originalism, we are off to a bad start. Professor Rudenstine says he shares the concerns about “the values Judge Gorsuch supports or rejects,” but here is the oath he took as a federal judge: “I, Neil Gorsuch, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.” So what matters is not whether Judge Gorsuch has ever ruled in favor of “big business, big donors and big bosses” or (as the oath specifies) “the rich” but whether he is biased in favor of these groups. And to answer that question requires an analysis of the merits of the legal arguments presented by the parties before him. About this Professor Rudenstine offers us nothing, and I strongly suspect he has not studied the arguments and facts of the cases decided by Judge Gorsuch to reach an expert opinion about his bias or lack thereof. And yet he published his agreement with the “many” who hold such views. (For links to detailed analyses by Ed Whelan of the very few cases on which this charge is based, see here.)

On the other hand, if Professor Rudenstein judges judges by who they rule for, rather than the merits of the legal arguments presented to them by the parties–whether poor or rich–then he favors federal judges who violate rather than adhere to their oaths. But, without knowing him personally, I would be loath to attribute such a position to a fellow law professor, so let me now turn to his critique of originalism.

I would vote against any nominee to the Supreme Court who stated that he or she adhered to originalism in construing the U.S. Constitution. Given that Gorsuch’s judicial writings are widely understood as presenting him as an originalist, that would be my main objection.

Here’s why.

At its heart, originalism claims to eliminate improper judicial law-making in construing the Constitution. It does that by promising that historical materials pertaining to the Constitution’s adoption contain definitive answers to contemporary constitutional questions.

That attractive idea falls apart upon analysis.

The theory requires that we determine whose understanding of the original Constitution is definitive. But originalists disagree on this critical point.

Some concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.

While it is true that some originalists have favored framers intent or ratifiers understanding, most today seek the original public meaning of the text at the time it was enacted. Regardless, for this criticism to be telling, Professor Rudenstein needs to identify circumstances where these different stances would lead to different results or outcomes. After all, the meaning of the words in the text to its framers, to its ratifiers, or to the general public, were very likely to be identical, since the meaning of the English language they employed was the same for all. Indeed, even originalists who ultimately seek the original public meaning of the text consider the meaning attributed to the text by its framers and ratifiers as probative evidence of original public meaning.

To take two examples where I am familiar with the available evidence, the word “commerce” in the Commerce Clause and “arms” in the Second Amendment meant the same thing to all three groups. So the practical constraining effect of originalism is preserved unless these differing audiences can be shown to have had differing understandings of the text, which is quite unlikely. At any rate, Professor Rudenstein offers no such examples of differential meanings.

Although this is not what he wrote, Professor Rudenstein may have in mind the difference between the overwhelming proportion of originalists who seek the original public meaning of the text, and the small minority who today seek the original framers intent. Even here, the results of these inquiries are likely to be identical. But where they differ–as, for example, Justice Scalia’s conclusions about the original public meaning of the Second Amendment in Heller differed from Justice Stevens’ analysis of original framers intent–we can criticize a judge for applying a version of originalism we consider to be incorrect, just as we can criticize the judge for employing any other incorrect approach to constitutional interpretation.

As with Professor Lempert’s critique, this objection by Professor Rudenstein betrays the fact that he does not fully understand the position he has chosen to attack. He continues:

But assuming originalists did agree on this matter, this interpretative methodology is fundamentally flawed for additional reasons.

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

This is fundamentally inaccurate. Originalism does not require “judges to to be historians.” It merely requires judges to identify the meaning–or communicative content–of the text of the Constitution. More specifically, it requires them to identify where that public meaning when enacted differed from the meaning these words have today. For example, although the Supreme Court has never expanded the actual meaning of the word “commerce” in the Commerce Clause (instead, it expanded the powers of Congress by a capacious construction of the Necessary and Proper Clause), some today may identify the word “commerce” with “economic activity,” though its original meaning was narrower than that. At the time of the Founding, and at least into the mid-Twentieth Century, the word “commerce” referred to an activity distinct from the economic activities of agriculture, husbandry, or manufacturing. While the latter words referred to different manners of producing things, the former referred to the trade and transportation of things that are so produced.

You don’t need a PhD. in history to discover this. But regardless of whether you do, the scarcity of a judicial time and expertise recommends a division of labor in which academics investigate and debate the evidence of original meaning, and judges rely upon the conclusions that emerge from this scholarly peer reviewing process. Moreover, the Constitution is a finite document. As the meaning of each term is settled, judges need only learn the conclusions of this research as these matters are investigated or settled. Once correctly identified and incorporated into judicial decisions, judges are free to move on to other matters.

But in any rate, neither judges nor scholars ought to employ “law office history,” if what is meant by this is “cherry-picking” evidence to fits the conclusions they may wish to reach. An argument against bad originalism is not an argument against originalism.

By the same token, professional historians ought not employ “history office law” that misunderstands the legal doctrines and concepts of the period they are studying. Historians today are largely preoccupied, not with linguistic usage, but with the motives and purposes of historical figures, as well as the effects of their actions. This is why many historians who engage in constitutional analysis insist on reducing “meaning” to the intentions of the framers, by which which they mean what the framers hoped to accomplish rather than what they said. In other words, many historians today adhere to the old proto-originalism based on original framers intent–the position that was tellingly criticized by such nonoriginalists as Paul Brest in the 1980s–the vision of originalism that Professor Rudenstein rejects in this essay!

Originalism assumes that historical evidence yields definitive and comprehensive answers to contemporary constitutional questions. The fallacies here are evident. History is complex and historical inquiries into important and open-ended questions are likely to yield a variety of plausible answers to the same question.

Thus, the premise of originalism is naive, unrealistic and unsupportable.

No, public meaning originalism assumes that language had a meaning–or communicated content–when it was adopted, just as the English language that Professor Rudenstein employed in his essay has a public meaning today. How else are we to understand what he is intending to say when he refers to “diaries, letters, memoranda and newspapers”? He certainly would be unwise to adopt his own private language in which these words refer to, say, methods of public conveyances. That would irrational on his part, as it would have been irrational for the framers of the Constitution and its amendments to use words, the public meaning of which failed to convey their intentions. (An usual exception to this were the various euphemisms the framers of the original Constitution employed to refer to slavery. But because the context of these euphemistic p would have conveyed to the general public that these clauses referred to slavery, that was their original meaning.)

Moreover, what would late 18th century figures have to say about the constitutional authority of a president to use atomic weapons in a peremptory strike against a foreign power when the Congress has not declared war and with which the United States was not then involved in a military conflict?

Are we really looking for “their” answers to such questions, or are we wondering what they would have thought about the Constitution’s meaning if they lived in our time and knew what we now know? This is magical and it makes originalism a farce.

I can assure Professor Rudenstein that originalists are not looking for these things, which the “living originalist” Jack Balkin helpfully labeled “original expected applications.” Way back in the 1980s, I disparagingly characterized the position Professor Rudenstein is describing as that of “channeling the framers.” There is a rich literature about the difference between identifying the communicated content of the text and applying that meaning to particular facts and circumstances–which sometimes goes under the rubric of “interpretation” vs. “construction.” Originalist and nonoriginalist scholars who are familiar with originalism know to what I am referring. Professor Rudenstein would be wise to avail himself of this literature before opining further on this subject.

Originalism also implodes over rights not mentioned in the Constitution — so-called un-enumerated rights — but which are nonetheless considered fundamental.

For example, the text of the Constitution does not guarantee the right to have children. Nonetheless, originalists agreed with others that this is a basic right and that the Constitution protects it as it does rights explicitly mentioned in its text, such as the right to a free press, free speech and the free exercise of religion.

Thus, if a state made it a felony for a person to be the biological parent of more than one child, an originalist would invalidate such a law because it conflicts with an un-enumerated right that should be protected. While that result would be generally applauded, it is flatly inconsistent with originalism’s promise to constrain judicial discretion.

As someone who has been investigating the original meaning of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment for decades,  I can assure Professor Rudenstein that these clauses do have an original meaning–though there is some disagreement among originalists about it. (Most disputes among originalists about unenumerated rights, however, is not about meaning but about the appropriate judicial role, which is the subject of Our Republican Constitution.)

But the issue he is raising about “judicial discretion” is a bit to complicate to unpack, even in a blog post as lengthy as this one. Suffice it to say that no originalist claims that judges have zero discretion or choices to make in applying the the original meaning of the text to the facts of particular cases. They merely claim that the original meaning of the text constrains the decision making of judges to the extent that this meaning must remain the same until properly changed; and that judges cannot properly change the meaning of the text “in light of changing circumstances.” Unless Professor Rudenstine can produce an example of an originalist who claims that the original meaning of the text eliminates all judicial discretion, then he is attacking a straw man.

At this point, it is only fair to ask Professor Rudenstine to identify his own approach to constitutional interpretation and application to see if it performs better or worse than originalism. For is that not the fair test of the relative strengths of competing constitutional approaches? My guess is that, whatever his approach, it will perform worse by every criteria he judges originalism as wanting. But I cannot know this for certain until he informs readers like me of his own allegedly superior approach.

Lastly, although this is not an exhaustive list — the framers of the Constitution were ultimately pragmatists who endorsed a brief Constitution. That meant that only the Constitution’s “great outlines [were] … marked” and its “important objects” designated. The duty of all who were called upon to construe the Constitution was, as Chief Justice John Marshall wrote, “never [to] forget that it is a constitution we are expounding,” by which he meant that it was written in general terms to permit it to be construed in light of changing circumstances.

Thus, the Supreme Court appropriately adapted the Constitution to modern technology when it applied the Fourth Amendment to telephone surveillance and broadly construed the commerce clause power. Nonetheless, an originalist must reject such sensible thinking as inconsistent with the theory’s basic tenets.

Uh, no. With respect to the Fourth Amendment, they mustn’t because it isn’t. But with respect to the Commerce Clause, they should, because it is.

However, what to do about these “constitutional mistakes” today is separate issue than whether or not the original meaning of the text when enacted is discoverable. Many originalists adhere to the doctrine of stare decisis or precedent. And even an originalist (like me) who doubts that erroneous past judicial decisions can ever trump the original meaning of the text, can hold the view that settled cases have been settled–res judicata–but that the mistaken reasoning of these decisions of long-dead justices should not rule us from the grave; that, even if we do not reopen previously decided cases, originalism has a gravitational force in deciding future ones. In particular, erroneous reasoning should not be further extended, and we should gradually return to the original meaning in a case-by-case fashion as new statutes are enacted and challenged.

Because of its fatal flaws, originalism fails to be descriptive of more than 200 years of Supreme Court history and makes promises that cannot be kept.

Anyone who is as able as Gorsuch knows that. As a result, instead of being a modest judge who states that he will not make law, he knowingly misleads the American public as to the scope of discretionary authority originalism invests in a judge. In my mind, this disqualifies him from becoming a Supreme Court justice.

Here, by so publicly claiming that an honorable man like Neil Gorsuch is “disqualified . . . from becoming a Supreme Court justice” because he “knowingly misleads the American people,” Professor Rudenstine is arguing in a manner unbefitting a member of the academy. Nevertheless, even though he chose to publish this woefully inaccurate and unfair account of originalism, I would not characterize Professor Rudenstine the way he characterizes Judge Gorsuch. Rather than “knowingly misleading” the readers of the National Law Journal, a more charitable explanation is–whatever else may be his academic expertise–that Professor Rudenstein just doesn’t know what he’s talking about.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/14/another-oblivious-critique-of-neil-gorsuch-and-originalism/