1089: Puppet Mouth

Adam Curry & John C. Dvorak

2h 49m
November 25th, 2018
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Executive Producers: Anonymous

Associate Executive Producers: Wlodek Zieleniec

Cover Artist: MartinJJ

Chapters

0:00
Start of Show
Woodstock
1:17
Fourth National Climate Assessment by US Global Change Research Program
Woodstock
10:04
Yellow Vest Protests in France Against Carbon Tax
Woodstock
25:32
Global Compact for Migration
Woodstock
30:26
Hillary Clinton Calls for Europe to Curb Migration
Woodstock
32:37
UK Police use Cars for "Tactial Contact" with Mopeds
Woodstock
35:45
E-Scooters
Woodstock
37:12
Black Friday
Woodstock
52:48
AC's iPhone Shopping Experience at the T-Mobile Store
Woodstock
57:59
Conspiracy Theorists Described on CBS This Morning
Woodstock
59:21
Credits
Woodstock
1:06:33
Russian Threat on Madam Secretary TV Show
Woodstock
1:07:38
The Clinton Affair TV Show
Woodstock
1:13:55
MPAA Net Neutrality Recommendations
Woodstock
1:33:12
Podcast Advertisement for Crickstart
Woodstock
1:41:26
AC Annoyed by the Phrase: "I'm gonna go ahead and"
Woodstock
1:42:14
Zuckerberg Explains New Ban Appealing Process in CNN Interview
Woodstock
1:47:12
The War on Christmas
Woodstock
1:49:18
Long Lines for Pre-Cooked Meals on Thanksgiving at Whole Foods
Woodstock
1:50:38
Instant Pot, Programmable Pressure Cooker
Woodstock
1:54:25
The Guardian's Pitch Against the Attack on Press Freedom by Trump
Woodstock
1:57:01
Donations
Woodstock
2:04:59
Birthdays & Title Changes
Woodstock
2:07:26
Russian Space Agency Tasked to Find out if Americans Landed on the Moon
Woodstock
2:08:09
Crowd Mood Detection through Artificial Intelligence
Woodstock
2:10:53
Erin Burnett Interprets Trump's Complaint Against Judge as a Threat
Woodstock
2:12:38
Michael Hayden Hospitalized After Suffering a Stroke
Woodstock
2:13:20
Rumored US/Mexico Migration Deal
Woodstock
2:20:25
Kim Jong Yang Elected as New Interpol President
Woodstock
2:22:06
Trump Allegedly Disagrees with CIA Assessment of Khashoggi Murder
Woodstock
2:31:10
AC's No Agenda Subreddit Simulation Theory
Woodstock
2:39:44
Toy Story 4 Teaser Controversy
Woodstock
2:42:02
End of Show
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TODAY
Black Friday 2018: A Not-So-Wild Day for American Shoppers - The New York Times
Sat, 24 Nov 2018 04:56
Image Shoppers walking along Fifth Avenue in New York on Friday. Credit Credit Jeenah Moon for The New York Times Here we are again: Mildly annoyed by the obvious consumerism, but totally in love with the deals. It must be Black Friday.
The Friday after Thanksgiving is still the official start of the holiday shopping season, but things are changing. For starters, Thanksgiving is no longer sacred '-- shoppers head outside or online to get an early start before the turkey is even cold. And instead of lining up at the crack of dawn after sleeping off their feasts, more people are shopping on their phones. In fact, if you follow the advice of our friends at Wirecutter, you'll stay home and shop in your P.J.s. (Check out our full breakdown of how Black Friday has changed in recent years.)
Shoppers won't want for time this year: The gap between Thanksgiving and Christmas '-- 32 days if you don't count the holidays themselves '-- is long (next year it will be just 26 days). That means procrastinators get more time to put things off and retailers get one more shot at luring you in. But beware: Hanukkah is coming on the early side this year.
We'll be covering it all here, with reporters weighing in from near and far.
Going to the Mall '-- But Not for the ShoppingJust before 11 a.m. at the Fashion Island mall in Orange County, Calif., the line to see Santa Claus was about 15-people deep, including parents and grandparents. Laura Natale, who lives nearby, brought her three-year-old son Christopher to see Santa. Asked if the crowds were any larger than a typical Friday, she said: ''Not really.''
Others had anticipated more bustle at this palm-and-Christmas-tree-laden outdoor mall near Newport Beach, saying they remembered a bigger post-Thanksgiving rush last year. ''It's more empty than I expected,'' said Michelle Gorczyza, who also lives in the area. She did encounter a long line at Anthropologie, so she skipped the store, deciding she could just as easily buy online.
Her husband Danny said that nowadays people come to the mall more for the food and the experience than the shopping. ''You don't see people running around with 10 bags,'' he said. ''They're happy to spend $50 on lunch and just soak in the atmosphere.''
That's what 28-year old Mitch Williams did on this sunny morning, sitting beneath one of the palm trees. ''My grandpa is visiting from Ohio, so we're having coffee and omelets.''
Image Shoppers in the shoes section at Macy's in New York on Friday. Credit Jeenah Moon for The New York Times Was he doing any shopping? He shook his head no: ''I do that online.''
'-- Cade Metz
Black Friday Has Lots of CompetitionBlack Friday, a ''holiday'' that wasn't a holiday until it was deemed to be by American retailers a few decades ago, has a remarkably enduring position on the calendar as the year's most significant celebration of commercialism.
Retailers start marketing it months in advance. Hordes of shoppers turn out in person and online. Google even programmed it into its calendar as an official holiday.
But Black Friday has competition. Lots of it.
Shopping holidays abound. World Fair Trade Day was May 12. Small Business Saturday falls on the Saturday after Thanksgiving. The Monday after that is Cyber Monday '-- a creation of the not-so-long-ago era when shopping online seemed almost exotic. And Dec. 14 is Free Shipping Day.
Those are just the free-for-alls, where all retailers can participate.
Many companies have laid claim to their own corporate holidays. Alibaba's Singles Day festival on Nov. 11 topped $30 billion in sales. Customers bought more than 100 million products in Amazon's Prime Day event in July.
There was also Overstocktober, which Overstock.com used to push promotions before rebranding it as Customer Day on Oct. 15 of this year. eBay declared the second Monday of each December to be Green Monday. Wayfair had Way Day in April for what it calls ''better-than-Black-Friday deals.'' Macy's held a ''Black Friday in July'' sale over the summer.
''If we've seen anything in retail over the last 20, 30 years, it's that consumers need to be motivated to shop,'' said Michael Brown, a partner with A.T. Kearney's retail practice. ''They need to be provoked.''
And not just in the United States. Boxing Day in Britain, which comes after Christmas, has evolved into a day to observe hallowed shopping rituals. In Australia, Click Frenzy in February focuses on online shopping.
Image Customers shopping on Black Friday at Target in Brooklyn. Credit David Dee Delgado for The New York Times For anyone above all that crass consumerism? There's a day for them, too.
The website for Buy Nothing Day urges consumers to ''escape the Shopocalypse,'' noting that the ''anarchy that ensues on Black Friday has now become an absurd dystopian phenomenon.''
'-- Tiffany Hsu
A Strong Start for RetailersRetailers and analysts said Black Friday 2018 got off to a strong start '-- and all indications were that it finished strong, too.
Adobe Analytics, reported that as of 8 p.m. Eastern, consumers had already spent about $4.1 billion on Black Friday '-- a 23 percent increase from the same period last year.
Though the cold weather in the eastern United States may have kept some shoppers home, Mastercard SpendingPulse said that generally ''online sales appear to be filling in any weather related soft spots in brick and mortar sales.'' The clothing, electronics and interior furnishing sectors were seeing especially good traction, the analysis said.
The upbeat prognosis was supported, at least in part, by photos and videos posted Friday morning on Twitter, which showed long lines and bunches of bundled shoppers gathered at places including a Kohl's in Mansfield, Mass., and the Mall of America in Bloomington, Minn.
''Stores are busy, there's good traffic, the queues are manageable and well-staffed, and inventory levels appear to be good for the time of day too,'' said Frank Layo, managing director of Kurt Salmon, which is part of Accenture Strategy. ''Retailers helped themselves by starting promotions much earlier this year to spread out the holiday shopping traffic and mitigate chaos. Their efforts appear to be paying off.''
'-- Matt Stevens
But There Are HiccupsEarly in the day, J. Crew wrote on Twitter that it was ''experiencing some technical difficulties'' with its website. The site appeared to be functioning fine soon afterward.
Image Shoppers lined up in the early morning at a Best Buy store in Costa Mesa, Calif., on Friday. Credit Eugene Garcia/EPA, via Shutterstock About three hours later, the home page for Lowe's displayed a message that it was undergoing maintenance. The site was soon restored.
Still, analysts monitoring Black Friday said online sales were chugging along, driven in part by the cold, wet weather in some parts of the country, which they said may have nudged some shoppers away from stores and toward their computers or smartphones.
'-- Matt Stevens
What to Buy: A Cheat SheetFeeling overwhelmed by deals? You're not alone. In the hope of clearing out inventory, retailers bombard us with thousands of items that are marked on sale. Many of these products are of subpar quality, or they aren't actually on sale at all. We wrote a cheat sheet of the types of products that are hot '-- and the ones that are not '-- on Black Friday to help you home in on the quality, deeply discounted goods.
Here's the upshot: Black Friday is a great time to buy a new video game console, a television, headphones or a smart home product like the Amazon Echo or Google Home. One of the most notable deals we've seen: Best Buy, Amazon and many retailers are selling Sony's PlayStation 4 with a new Spider-Man game for $200, down from the normal price of $300 for the console alone. So come prepared: Jot down a list of things you'd like to buy in those categories and look out for price drops.
'-- Brian X. Chen
You Look Hungry for MoreYou clearly have an insatiable appetite for The Times's Black Friday coverage! Here are a few recent stories you might enjoy about this very American ''holiday'' and how it fits into the broader economy.
' Some stores haven't embraced the Black Friday madness. Among the holdouts: Dunham's department store in rural Pennsylvania. Michael Corkery recently visited to learn why it doesn't participate in Black Friday.
' F.A.O. Schwarz '-- the iconic but then shuttered toy store '-- is back, under new management: private equity. The new business model involves outposts in airports and ''stores within stores'' at larger retailers.
Image Shoppers on Black Friday in New York. Credit Stephanie Keith/Getty Images ' Over in the Opinion section, David Leonhardt has a cool idea for anyone who is preparing to join the Black Friday scrum and spend on gifts or other purchases: Instead, use that money to subscribe or donate to a local news media organization!
' And for anyone who assumes that Amazon has put the final nail in the coffin of the bricks-and-mortar retail industry, not so fast: It turns out that more Americans are venturing back into stores, and some old-school retailers are actually doing better than in the recent past.
'-- David Enrich
Hey Hey, Ho Ho, Black Friday Has Got to GoBelieve it or not, not everyone is a fan of Black Friday.
REI, the outdoor equipment retailer, has generated headlines every year since 2015 when it first said it would not open the day after Thanksgiving. Instead, REI urged people to spend time with friends and family in nature, with the hashtag #OptOutside.
This year will be no different. Even as major retailers plan to promote blockbuster sales, labor groups like Occupy New Hampshire Sea Coast say they will be staging protests in front of stores to draw attention to employment issues.
''We're fighting for respect and a fair wage at work,'' David Holt, one of the organizers of the demonstration, said in an interview on Wednesday. He added that Black Friday was an especially appealing time for labor movements to organize. ''One of the things this Black Friday protest is about is consumerism.''
Mr. Holt said he hoped that holding the demonstration in front of a Walmart would encourage shoppers to think about labor conditions for the store's employees.
'-- Zach Wichter
Black Friday Goes Global '...There is no Thanksgiving holiday in Europe, but that hasn't stopped the associated consumer bonanza from hitting shops there. French retail brands like Darty, Fnac and Monoprix joined Apple, Sephora and Uniqlo in efforts to attract bargain hunters on Friday.
Image Amazon opened a pop-up shop and had Black Friday sales in London this year. Credit Alex Mcbride/Getty Images In Britain, where sales used to take place after Christmas, shops have added Black Friday to their promotional calendars. Offers have been trickling in for at least a week. Amazon started its sales on Nov. 16.
Most other stores have joined the fray with even discount supermarkets offering money off everything from vintage turntables to legs of ham.
'-- Amie Tsang
'... With Even Canadians on the Bandwagon '...Yes, Black Friday is everywhere '-- even Canada.
The ''holiday'' '-- in French-speaking Montreal, they call it ''Vendredi Fou'' '-- has reportedly become Canada's busiest shopping day of the year, eclipsing Boxing Day (or Dec. 26), when the traditional post-Christmas Day sales would bring out hordes of shoppers.
This Black Friday, the stores in Montreal were packed, especially in the underground, labyrinth-like malls such as Eaton Center, which was crowded with people seeking shelter from the subfreezing weather. Athletic wear, women's shoes and men's suits were marked off at 50 percent or more in the Eaton Center mall. Outside one electronics store, velvet ropes were set up to keep the queues under control.
It's said that Black Friday first migrated to Canada in the early 2000s, when the American and Canadian dollars were roughly on par. These days the greenback is worth 1.32 Canadian dollars, making these discounts even greater.
'-- Stuart Emmrich
'... Though China Has Its Own VersionChina celebrated its own invented shopping holiday this month. The country's economic ascent has turned hundreds of millions of people into eager consumers. And they are buying stuff online with great gusto thanks in part to low wages that make shipping fast and cheap.
The Chinese e-commerce giant Alibaba said it sold $30.8 billion worth of goods on Nov. 11, the annual online bonanza known as Singles Day. The company rang up $1 billion in sales in the first 85 seconds of this year's frenzy. It took an hour to reach $10 billion. All in all, the company says it generated more than a billion delivery orders that day.
Image Shoppers rushed through the corridors of Macy's flagship store at Herald Square in Manhattan on Thursday evening. Credit David Dee Delgado/Getty Images For some context: In the United States last year, online shopping from Thanksgiving through Cyber Monday totaled about $19.62 billion, according to Adobe Analytics. (Yes, it's true, that doesn't include all the in-store shopping that took place on Black Friday.)
In addition to inundating phone owners with coupons and deals for weeks in advance, Alibaba deploys subtler methods to gin up sales on Singles Day. This year, users of the company's Taobao shopping app could see how their spending on Nov. 11 compared to that of other people in their area.
[Read more about this year's Singles Day, and why the party may not last]
'-- Raymond Zhong
Shopping on 'Black Thursday' (a.k.a. Thanksgiving)For many shoppers, Black Friday actually begins right in the middle of Thanksgiving dinner.
Even on this, the second coldest Thanksgiving in New York City history, and the coldest since 1901, revelers still took to the Macy's Thanksgiving Day Parade, and shoppers still lined up for Black Friday deals (or at least paid someone to do it).
Walmart took the lead competing head-on with Thanksgiving dinner by throwing in-store parties with free food. Calling it a way to ''pump up customers,'' the company expected to be handing out 4 million free Kuerig coffees and 2 million Christmas-themed cookies starting at 4 p.m. In-store Black Friday deals began at 6 p.m., but it wasn't customers' first crack at them: The chain began offering holiday bargains on Nov. 8.
Target opened its doors at 5 p.m. on Thanksgiving (same with Kohl's). In announcing its Black Friday plans, Target admonished customers to ''head to the store after dinner.''
'-- Nellie Bowles
Shopping from the Dinner TableOnline shoppers, too, were busy on Thanksgiving Day. They shelled out $3.7 billion on Thursday, an increase of about 28 percent compared to last year, according to a report from Adobe Analytics, which tracks transactions from 80 of the country's top 100 online retailers.
Image A Kmart store open early with Black Friday sales on Thanksgiving Day in Rosemead, Calif. Credit Frederic J. Brown/Agence France-Presse '-- Getty Images And many of those online shoppers aren't heading to their desks or even grabbing their laptops. Thanksgiving marked the first day during which $1 billion in sales came from smartphones, Adobe said. And consumers spent more on their phones, with average order values up 8 percent compared with Thanksgiving Day last year.
'-- Zach Wichter
Shopping on the 'GramSocial media is playing a bigger role than ever in people's holiday shopping habits. According to Accenture, 15 percent of shoppers in 2018 will use social media for some of their purchases, up from 8 percent last year. With a growing share of retail sales taking place online '-- and nearly half of those sales coming on mobile devices '-- social media might be a way for brands to counter the competition.
It could help retailers offset some of the deep discounts that consumers expect on Black Friday.
''If you can grab people in the inspirational moment, they're not going to be as price-sensitive and maybe they won't shop around,'' said Jill Standish, Accenture's global lead for retail.
Ms. Standish compared selling via social media to Amazon's 1-click ordering (something that, according to one survey, had 70 percent of respondents spending more money).
Another advantage? Online, Ms. Standish said, it can be easy ''for a small brand to look big'' if they know how to present themselves, and know how to attract the right influencer profiles to promote their products. A strong social media presence can make a company seem instantly reputable.
'-- Zach Wichter
When Bargains Become a TraditionThere are three reasons that Black Friday is so popular, and two of them are the deals, according to Tulin Erdem, a marketing professor at New York University's Stern School of Business.
''The economic savings, feeling good about yourself having found a good deal, being a shrewd consumer,'' she said, all add up to one key factor. Plus, because so many stores offer Black Friday sales, it's easier to find discounts without having to search as hard as you might during the rest of the year.
But, Dr. Erdem said, another reason Black Friday remains so popular is tradition.
''It still has its appeal because of this ritualistic aspect,'' she said. ''It's like going to a big important baseball game or Super Bowl as an American family.''
[See how one family spent their Black Friday last year.]
Consider that the National Retail Federation surveyed 7,516 consumers about their shopping plans this year, and 26 percent of those who planned to shop on Black Friday said it was because of tradition. An additional 23 percent said they would shop because it's just something to do. (As far as we know, nobody was asked whether they're shopping just to get away from family members.)
Of course Black Friday is just the start of things. If retailers don't start discounting before Thanksgiving '-- and most seem to '-- they are certainly using the holiday shopping season to push merchandise at every turn. The biggest discounts tend to come on ''Super Saturday'' '-- the last Saturday before Christmas, said Craig Johnson, president of Customer Growth Partners, a retail analysis firm.
But Black Friday does matter. Consumers surveyed by the retail federation said they planned to shop more on Black Friday than on any other day of the Thanksgiving weekend.
And Black Friday maintains cultural cache, especially for ''new Americans,'' said Mr. Johnson, as recent immigrants are more likely to take part. ''That's how you learn to be an American consumer, by showing up and shopping on Black Friday.''
'-- Zach Wichter
A version of this article appears in print on
, on Page
B
5
of the New York edition
with the headline:
A Modest Horde Of Savvy Shoppers Descends Again For Black Friday
. Order Reprints | Today's Paper | Subscribe
Knight Assistance Request
Hoping the show
can help...
Almost six months out of work with seven people depending
on me to pay the bills. Money runs out on Christmas Day, would you believe it!
I’m hoping a producer somewhere can help.
Long story short, I was made redundant from my job as a
product manager for a Silicon Valley tech company in July after seven years. I
have a weird set up as I’ve been working from home in Brisbane Australia for US
companies for over a decade. I’ve been a remote worker for over a decade and I
make it work REALLY well.
Trouble is this: it seems that no one these days will
consider a product manager who’s remote. Not even Australian companies out of
Sydney or Melbourne. Unfortunately relocation isn’t possible for family
reasons.
So I’ve spent the last six months looking for work with
local BRISBANE based companies, and I’ve hit a different problem: they all
think I’m great but no one will hire me because I’m “over qualified” and the
roles here “won’t give me enough of a challenge”... I’ve had a half a dozen
responses along these lines so far.
I had a company tell me I totally knocked their socks off
in the interview but they didn’t want to hire me because they think I’ll only
stay till I find something better in 3-6 months.
It’s bananas.
I’ve got a strong track record and amazing references.
So here’s the ask: attached is a link to my one page CV.
If there are any producers out there who need or know someone who needs a
rockstar product manager, please send them my CV or give them my email address:
(not for reading in the air: snrkl@snrkl.org)
My cv is attached and also available on the link below
(also not for reading on the air)
http://files.clarkefamily.co/AidanClarkeCV.pdf
Thanks in advance. I’m hoping the NA family can help a
fellow knight out in his time of need.
Sir Snrkl, Knight, producer and long time subscription
donor (even though I’m going broke!!)
Dockless Mobility
e-scooters lithium ion battery
Electric scooters burst into flame due to bad batteries, company says | US news | The Guardian
Fri, 23 Nov 2018 11:37
It was a late night in late August when an employee at a Lime scooter facility in Tahoe, heard a loud bang. One of the bright-green rental scooters '' which have meteorically swarmed streets in crowded cities around the world over the past year '' had burst into flames, seemingly, all on its own.
According to a blog posted by Lime on Tuesday, nearly two months later, bad batteries were to blame. Stating that the defect had affected less than 0.01% of the ''fleet'', the company conceded that a ''manufacturing defect could result in the battery smoldering, or in some cases, catching fire''.
It's the latest controversy over the dockless scooters, that have spread to cities across the globe in recent years. The Washington Post, which first reported the story, found that employees had alerted the company to potential issues and felt they had not been adequately addressed, putting riders and ''juicers'', people paid to charge the scooters overnight, at unnecessary risk.
Since starting just over a year ago, Lime boasts it has millions of riders. The company emphasized in its response that it has taken extra precautions to ensure the safety of anyone who uses or charges its scooters.
Writing that the batteries were manufactured by Segway Ninebot, a company merged from a Chinese company and an American one that produces transportation products, Lime stated it had created software to detect any that were defective. Then, it made a second software program to find all the Scooters that might have one, bringing them all home to local headquarters.
''When an affected battery was identified '' with a red code '' we promptly deactivated the scooter so that no members of the public could ride or charge it,'' the company wrote in the statement.
Reiterating that it did not want to take any chances, it also will now have employees familiar with the issue on hand for 24 hours a day at facilities where the Segway Ninebot Scooters are held and will run daily diagnostics on all scooters, regardless of where they were made and if they might have rogue batteries.
But according to Lime mechanics, who spoke anonymously to the Post, their concerns over the scooters were dismissed by senior staff, especially over the safety of ''juicers'' who may have unknowingly charged machines with potentially dangerous defects.
''These people are plugging these scooters into their house at night and going to sleep thinking they're safe and that they just earned an easy $15,'' one employee told the Post. ''When I asked my managers if we were going to tell them all I got was shrugged shoulders and 'I don't know'.''
Others voiced frustrations in their mechanic Slack chat, calling for the company to remove the scooters from the market until the issues were better addressed.
''I get that the scoots are expendable and replaceable,'' one person wrote. ''But are we now resigned to say the same for the safety of employees and customers?''
This isn't the first safety issue raised, as scooter companies have rapidly descended on cities around the world. Seen as either the scourge or saviors in crowded cities, where cheap, efficient transportation is scarce, proponents have argued for their use as a sustainable solution, while critics point out the dangers.
Scooter-caused emergency-room visits are becoming increasingly common, and there have been allegations that the proper upkeep has not been done by startup scooter companies.
In cities like San Francisco, the response was swift, and scooters that did not end up in trashcans or in local lakes were taken off the streets by regulatory officials, before they were brought back in smaller doses. Other cities are working to create better scooter rules, as scooter startups continue to increase their scale.
Lime disputes any questions over its intentions, and emphasized safety is of utmost importance. ''Lime takes full responsibility for our scooters,'' it wrote. ''The safety of our riders, Juicers, and community is our highest priority, and we will continue to hold our equipment manufacturers and ourselves to the highest possible standard.''
Agenda 2030
U.N. Environment Envoy Quits After Audit of Expenses - The New York Times
Fri, 23 Nov 2018 13:56
Climate | U.N. Environment Envoy Quits After Audit of Expenses Image Erik Solheim was found to have spent nearly $500,000 on travel in 22 months. Credit Credit Manish Swarup/Associated Press Want climate news in your inbox? Sign up here for Climate Fwd:, our email newsletter.
There were too many trips to Paris. And it wasn't helping to save the environment.
That was among the conclusions of an internal audit that resulted in the resignation Tuesday of Erik Solheim, a veteran Norwegian diplomat, from his post as head of the United Nations Environment Program. The investigation, conducted by the United Nations Office of Internal Oversight Services, criticized the environment agency for ''a culture of scant regard for internal controls and existing rules'' on the use of public funds.
Mr. Solheim said in a statement he had decided ''with a heavy heart'' to step down after receiving the final audit results on Saturday. He admitted no wrongdoing and, in a statement, said that he remained ''committed to doing what I believe to be in the best interest of U.N. Environment and the mission we are here to achieve.''
The United Nations secretary general, Ant"nio Guterres, without mentioning the audit, said Tuesday he had accepted Mr. Solheim's resignation. In a statement later in the day, Mr. Guterres described Mr. Solheim as ''a leading voice in drawing the world's attention to critical environmental challenges.''
The scrutiny of Mr. Solheim and his travel expenses came at a time of shrinking resources at the world body, so much so that some donors to the environment program decided to withhold funds pending the final audit results.
The audit, which was seen by The Times, cited ''uneconomical routing of flight itineraries, opting for more expensive airlines, implementation of teleworking arrangements that were outside the existing policy on flexible working arrangements.'' It also noted a failure to account for absences from the office.
At issue in particular were his frequent trips to Paris and Oslo. The audit found that Mr. Solheim, referred to in the audit as ''a senior manager,'' had spent 79 percent of his time away from the agency's headquarters in Nairobi and incurred $488,519 in travel expenses over a 22-month period.
According to the audit, he selected flight itineraries that passed unnecessarily through Oslo and Paris and failed to account for what he did in those cities for a total of 72 days. The audit found that the travel arrangements were ''uneconomical'' and contravened United Nations travel rules.
''Most of the rerouted trips to the two cities were made prior to or during weekends or public holidays,'' the audit found. Immediately after taking office, in July 2016, the audit found, Mr. Solheim flew to Paris for a one-day meeting but stayed for a month, accounting for nine days as his annual leave. Then, he went on a six-city tour of North and South America. His travel costs for the whole trip exceeded $14,000.
Separately, he flew through Oslo on his way to Addis Ababa, Ethiopia, which is only a two-hour flight from Nairobi. On another occasion, he flew to Paris between meetings in Washington and New York. He refunded the world body $7,022 in travel expenses after an internal investigation of that trip.
For more news on climate and the environment, follow @NYTClimate on Twitter.
Somini Sengupta covers international climate issues and is the author of "The End of Karma: Hope and Fury Among India's Young." @ SominiSengupta ' Facebook
A version of this article appears in print on
, on Page
A
9
of the New York edition
with the headline:
U.N. Environment Envoy Quits After Audit Finds $500,000 Spent on Travel
. Order Reprints | Today's Paper | Subscribe
UN Environment Chief Resigns After Racking Up Huge Carbon Footprint | Zero Hedge
Fri, 23 Nov 2018 13:56
Members of the United Nations recoiled in horror last year when President Trump slashed the US's UN budget by nearly $300 million after the international agency rebuked the US over its decision to move its embassy to Jerusalem. Looks like the jokes on them.
UN Secretary General Antonio Guterres has accepted the resignation of UN Environmental Chief Erik Solheim, a veteran Norwegian diplomat, after an internal audit by the UN Office of Internal Oversight Services criticized the environment agency for "a culture of scant regard for internal controls and existing rules" on the use of public funds. This "misuse" included Solheim racking up hundreds of thousands of dollars on personal flights to Paris (sound familiar?), according to the New York Times. Unfortunately for Solheim, those flights had nothing to do with the agency's work on the Paris Accords.
What's even more embarrassing for the agency, the alleged overspending happened at a time when resources for combating climate change were shrinking. Some of the agency's biggest donors even decided to withhold funds pending the final results of the audit.
Aside from the profligate spending, the report also found Solheim was routinely absent from the office without accounting for where he was or why.
The report found "uneconomical routing of flight itineraries, opting for more expensive airlines, implementation of teleworking arrangements that were outside the existing policy on flexible working arrangements."
In fact, Solheim spent as much as 80% of his time away from the agency's office in Nairobi, and frequently took flights to Paris and Oslo for what appeared to be personal reasons. Right after accepting the position in July 2016, Solheim flew to Paris for a "one-day meeting." He ended up staying for a month. Many of the "official" trips were also taken during public holidays when he apparently had no official business there.
At issue in particular were his frequent trips to Paris and Oslo. The audit found that Mr. Solheim, referred to in the audit as ''a senior manager,'' had spent 79 percent of his time away from the agency's headquarters in Nairobi and incurred $488,519 in travel expenses over a 22-month period.
According to the audit, he selected flight itineraries that passed unnecessarily through Oslo and Paris and failed to account for what he did in those cities for a total of 72 days. The audit found that the travel arrangements were ''uneconomical'' and contravened United Nations travel rules.
''Most of the rerouted trips to the two cities were made prior to or during weekends or public holidays,'' the audit found. Immediately after taking office, in July 2016, the audit found, Mr. Solheim flew to Paris for a one-day meeting but stayed for a month, accounting for nine days as his annual leave. Then, he went on a six-city tour of North and South America. His travel costs for the whole trip exceeded $14,000.
Sometimes, Solheim took flights on circuitous routes, or flew back to Europe between back-to-back meetings in the US - without any apparent reason.
Separately, he flew through Oslo on his way to Addis Ababa, Ethiopia, which is only a two-hour flight from Nairobi. On another occasion, he flew to Paris between meetings in Washington and New York. He refunded the world body $7,022 in travel expenses after an internal investigation of that trip.
But tell us again how President Trump is dismantling crucial international institutions for wanting to cut costs, abuse and waste?
Humans didn't cause animal extinctions in Africa, Science study says
Fri, 23 Nov 2018 20:58
In this file photo, a herd of adult and baby elephants walks in the dawn light as the highest mountain in Africa Mount Kilimanjaro in Tanzania is seen in the background, in Amboseli National Park, southern Kenya. Elephants are one of a few megaherbivores still in existence. (Photo: Ben Curtis, AP)
A new study disagrees with a longstanding view that humans wiped out large animals that previously occupied Africa.
In research published in the journal Science on Friday, authors analyzed records on megaherbivore communities in eastern Africa over seven million years. A megaherbivore is a mammal weighing more than 2,000 pounds. They concluded that extinctions of diverse mammal communities in Africa occurred before evidence of human hunting.
The animal decline might have instead been because of environmental factors such as declining atmospheric carbon dioxide and expansion of grasslands, researchers write.
"Low CO2 levels favor tropical grasses over trees, and as a consequence savannas became less woody and more open through time," John Rowan, a postdoctoral scientist from the University of Massachusetts Amherst who was involved in the research, said in a statement. "We know that many of the extinct megaherbivores fed on woody vegetation, so they seem to disappear alongside their food source."
Analysis suggests 28 lineages of megaherbivores went extinct, starting around 4.6 million years ago, according to lead author Tyler Faith, an assistant professor in the Department of Anthropology at the University of Utah. Today, only elephants, hippopotamuses, giraffes and white and black rhinoceroses exist.
More: Buried? Feds to release major climate report day after Thanksgiving
More: Milu deer fighting its way out of extinction
University of Oxford, U.K., researchers cautioned that it isn't exactly clear when humans began affecting large animal populations, but there is strong evidence that human impact played a role in losses tens of thousands of years ago.
"The causes of megaherbivore decline are probably complex, multidimensional, and varied across time and space," Ren(C) Bobe and Susana Carvalho wrote in the same issue of Science.
Follow Ashley May on Twitter: @AshleyMayTweets
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Gore Rips Trump for Trying to Bury Climate Report
Sat, 24 Nov 2018 06:34
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November 23, 2018 at 8:27 pm EST By Taegan Goddard Leave a Comment
Al Gore blasted the White House, saying it was trying to ''bury'' a long-awaited government report on climate change by releasing it on the day after Thanksgiving, CBS News reports.
Said Gore: ''Unbelievably deadly and tragic wildfires rage in the west, hurricanes batter our coasts '-- and the Trump administration chooses the Friday after Thanksgiving to try and bury this critical U.S. assessment of the climate crisis. The President may try to hide the truth, but his own scientists and experts have made it as stark and clear as possible.''
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Waarom klimaatdoel onhaalbaar en onbetaalbaar is - Elsevier Weekblad - Blendle
Sat, 24 Nov 2018 06:29
Marcel Crok
190 sea turtles found frozen to death along Cape Cod
Sat, 24 Nov 2018 13:41
Nov. 23, 2018 / 3:42 PM ET
By Didi Martinez and Julmary Zambrano
Close to 190 dead sea turtles were found frozen off the coast of Cape Cod Friday after low temperatures stifled their ability to make it safely to shore.
The Mass Audubon wildlife sanctuary said a ''once in a lifetime weather system'' of ''gale force winds,'' cold temperatures and high tide caused the migrating turtles to become ''incapacitated'' by the time they were found along the Massachusetts peninsula around 6 a.m. ET Friday.
''A lot of the turtles were found frozen in the water still,'' Mass Audubon's director Bob Prescott told NBC News. ''I picked up two to three myself that were still in the water, the slushy water.''
Prescott said that while the organization will help facilitate tests on the turtles to determine the exact cause of death, the turtles did ''essentially freeze.'' Overall, the Mass Audubon said they have found over 400 dead turtles this season.
Close to 400 sea turtles have been found dead along the Cape Cod this season as cold water temperatures cause some of them to die in frozen waters, said Mass Audubon wildlife sanctuary director Bob Prescott. Mass Audubon's Wellfleet Bay Wildlife SanctuaryAccording to researchers, the timing of the species' migration has only increased the chances of turtles getting frozen. Back in 1990s, sea turtles used to arrive to the Cape Cod area in October but now, they have been coming to shore around November when the water is much colder.
''Sea turtles are moving further north along our coast, or south to the southern hemisphere, as waters are warming and they are expanding their ranges,'' said Wallace J. Nichols, a research associate at California Academy of Sciences and sea turtle biologist. ''So when we get these quick swings from warm to cooler, the turtles that haven't made it south definitely get into trouble.''
Migration is a seasonal way of life for sea turtles '-- traveling thousands of miles to feed and lay their eggs, according to the U.S. National Oceanic and Atmospheric Administration.
Conservation efforts in recent years have helped to stabilize the sea turtle population and allowed them to make their way to locations they haven't visited in years, according to Nichols. However, changing temperatures have made them unprepared for what is headed their way in those areas.
''Climate change is impacting sea turtles very clearly,'' Nichols said, adding that ''cooked'' turtle eggs caused by warmer waters has affected the animals' migration patterns both ways.
Since the discovery, Prescott said that water temperatures have gotten a ''little warmer'' allowing some turtles to make it to shore, and about a dozen turtles have been sent to the New England Aquarium. Most of the turtles coming into the Cape Cod area this time of year are tropical or subtropical in nature, preferring water temperatures of 75-85 degrees Fahrenheit, Prescott said.
He added that they were unable to revive the turtles found Friday morning '-- some of which were the critically endangered species Kemp's Ridley sea turtle.
"The problem here is that they can't get out of Cape Cod Bay in time," Prescott said, adding that they still don't know how many turtles have been frozen to death in areas like Brewster, Massachusetts, where the beaches have been iced in. "The shape of the bay just confuses them."
CORRECTION (Nov. 23, 2018, 5:07 p.m. ET): An earlier version of this article misstated the location of Brewster. It is in Massachusetts, not New York.
Didi Martinez writes for NBC News.
State AGs for Rent - WSJ
Sun, 25 Nov 2018 15:10
With the courts and Trump Administration rolling back federal climate regulation, green activists have turned to the states. But there's a troubling ethical twist: Instead of merely lobbying, activists are placing employees in Attorneys General offices in dubious private-public condominiums.
Consider a remarkable arrangement brokered by the NYU Law School's State Energy and Environmental Impact Center to fund legal services for state AGs. The group was launched in August 2017 to advance a liberal climate and energy agenda, courtesy of a $6 million grant from Bloomberg Philanthropies, which also financed the Sierra Club's Beyond Coal campaign.
In August 2017 the NYU outfit emailed then-New York Attorney General Eric Schneiderman's office, offering to cover the salary and benefits of ''special assistant attorneys general,'' pending an application from the office that demonstrated how the new attorneys would be used. These privately funded staffers would work out of an AG's office for two years and deliver quarterly progress reports to the State Energy and Environmental Impact Center.
Those progress reports would explain ''the contribution that the legal fellow has made to the clean energy, climate change, and environmental initiatives'' within the attorney general's office, according to a December 2017 draft of an agreement between the Center and the New York AG obtained by Chris Horner of the Competitive Enterprise Institute.
Attorneys General do sometimes bring on legal fellows or outside help to handle unique cases. But subject-matter experts aren't in-house or chosen with specific intent to promote specific policies, according to Randy Pepple, who was chief of staff for former Washington Republican AG Rob McKenna. In the New York case, a special interest is funding staffers who could wield state law-enforcement power to punish opponents.
The State Energy and Environmental Impact Center made clear that state AG offices would only qualify for special assistant AGs if they ''demonstrate a need and commitment to defending environmental values and advancing progressive clean energy, climate change, and environmental legal positions,'' according to the August 2017 email to numerous AGs. Mr. Schneiderman's office suggested in its application for the fellows that it ''needs additional attorney resources to assist'' in extracting compensation from fossil-fuel emitters.
That's exactly what's happening. The New York AG currently has two NYU fellows on staff, according to the State Energy and Environmental Impact Center. One of the fellows, Gavin McCabe, signed off as ''special assistant attorney general'' on an amicus brief in June in support of New York City's suit for damages against BP, Chevron , ConocoPhillips , Exxon Mobil , and Royal Dutch Shell for alleged climate sins. That case was thrown out in July by federal Judge John Kennan on grounds that problems arising from climate change ''are not for the judiciary to ameliorate.''
The other, Matthew Eisenson, signed New York state's suit filed last month against Exxon for allegedly misleading investors about the risks that climate-change regulations pose to its business. The free help will also make for welcome reinforcements in New York-led litigation against the Trump Administration, including a suit against the EPA for its methane regulation.
A lack of government transparency makes this arrangement especially troubling. The New York AG's office, now run by Acting AG Barbara Underwood, declined to comment. Mr. McCabe and Mr. Eisenson could not be reached for comment by our deadline.
The State Energy and Environmental Impact Center said in a statement that the state offices it works with ''has the authority consistent with applicable law and regulations to accept a Legal Fellow whose salary and benefits are provided by an outside funding source.'' It added that it places workers with AGs who already have a long history of advancing the center's energy priorities. ''The work that NYU law fellows perform is directed by those AGs and not by the Center,'' the Center said.
At least six state AG offices have already brought on board a special assistant attorney general, according to an August report by Mr. Horner. Besides New York, the jurisdictions include Maryland, Massachusetts, Oregon, Washington and the District of Columbia. In September, Mr. Horner learned that Illinois and New Mexico have brought on special assistant AGs as well, which was confirmed by the NYU outfit.
The ethical problems here should be obvious. Private interests are leveraging the police powers of the state to pursue their political agenda, while a government official is letting private interests appear to influence enforcement decisions. None of this is reassuring about the fair administration of justice.
Virginia AG Faces Lawsuit for Claiming He Could Hire Privately Funded Environmental Activists
Sun, 25 Nov 2018 15:10
PoliZetteHe said there was no law prohibiting the execution of the Bloomberg-funded program '-- but was unable to prove itBy Connor D. Wolf | Wednesday, November 14, 2018
Virginia Attorney General Mark Herring (shown above right) was hit with a lawsuit on Wednesday for his involvement in a questionable program that places privately funded environmental activists in his office.
The Competitive Enterprise Institute filed the lawsuit as part of its continuing efforts to expose what it sees as a scheme.
Former New York City Mayor Michael Bloomberg (above left) launched a program alongside the New York University School of Law that places lawyers in the offices of state attorneys general. The purpose: to go after energy companies and advance environmental policies.
Democratic state attorney generals in several states signed onto the program '-- but it has seemed to taper out since facing increased legal scrutiny in recent weeks.
Virginia posed a rather interesting case and thus attracted the lawsuit over the other states.
The top attorney in the state simply said there was no law prohibiting the action, but then was unable to prove that assertion.
Related: Bloomberg Buying State AG Jobs to Launch Anti-Trump Enviro, Energy Lawsuits
''The question is, did they, in fact, conclude this,'' CEI senior fellow Chris Horner told LifeZette. ''Or did they just say it? Because it is inconceivable that the top legal office for the state, if it looked at the law, could conclude there are no legal impediments to a privately funded Special Assistant Attorney General in Virginia. And it's equally inconceivable the top lawyer for the state would just say that, without looking at the law.''
Every attorney general in the program had to first certify that it was legal in his or her particular state before participating. A few states were able to point to statutes that showed it was. Virginia supposedly checked the state code of professional responsibility and didn't find any prohibitions.
CEI then asked for any memorandums, analyses, conclusions and opinions asserting that this is authorized.
The Virginia attorney general responded to the request by claiming there were no records backing up that assertion. This raised a red flag '-- for if they did look into whether the program was legal, there would likely be records and some analysis to that effect.
CEI was essentially left with the question of whether the attorney general concluded it on legal grounds or just said it as his opinion.
''Which of these two inconceivable scenarios is the reality? This is the AG's office. It could not possibly have simply declared that it can do what it wants, without an analysis. And no analysis or opinion could conclude that those statutes, they're no problem. This is a very curious situation.''
Related: Trump Acts to Keep America Running with Crisis Power
The University of California Board of Regents was also sued under the state public records law to compel UCLA Law School for information related to the program including alleged secret meetings.
The meetings were apparently used to talk with prospective funders. CEI accused the college of stonewalling its request for information.
The board also noted concern over how such scheme could erode trust in the justice system.
The Wall Street Journal editorial board published a piece last week arguing that the ethical problems should be obvious when looking at the program generally.
The board also noted concern over how such scheme could erode trust in the justice system.
Herring, Bloomberg, the UCLA Law School and the New York University School of Law did not respond to requests for comment by LifeZette.
And if you didn't catch this video on midterm-related activity by Michael Bloomberg, click below:
Scientists have new plan to fight global warming: Dimming the sun '-- RT World News
Sun, 25 Nov 2018 02:52
Scientists have come up with a new and ingenious way of fighting global warming: use chemicals to blot out the sun. Whether we'll then have to fight (and do everything else) in the shade, the research doesn't quite spell out.
Since the world can't seem to agree on reducing CO2 emissions, why not tackle the problem from the other end, scientists from Harvard and Yale have surmised. The researchers recently published a study which says that spraying large amounts of sulfate particles into the Earth's lower stratosphere in order to literally dim out the sun could cut the effects of global climate change in half, and it might even be cheap!
With all the excitement over the ''hypothetical'' and ''highly uncertain and ambitious'' plan, there are no guarantees that it will not actually make things worse in a catastrophic sort of way. There is a suspicious lack of information about what 'dimming the sun' could possibly do to those of us who rely on it for basic things '' like growing food, or not freezing to death.
Instead, the study published in Environmental Research Letters discusses the potential costs and necessary technology to realize the ambitious, if not hubristic, plan. The researchers discuss a variety of potential ways to accomplish the large-scale 'geoengineering' project: planes, balloons, or even just shooting chemicals in the air with large guns.
Scientists: We need to dim the sun to avoid a climate change disasterMe: Is it gonna rain tomorrow?Scientists: Weather is an extremely complicated system, I can only give my best guess.Me: Leave the Fucking Sun alone.
'-- Carpe DonktumðŸ--¹ (@Carpedonktum) November 23, 2018Even apart from that, there's a fairly serious problem with the proposal: no aircraft currently exists that could actually deliver the payload. Adapting an existing version of SpaceX's Falcon Heavy rocket has been ruled out, citing the cost.
The proposal suggests a launch could be accomplished within 15 years, with an initial cost of around $3.5 billion, followed by another 15-year running period costing an additional $2.5 billion '' a relatively low price given the scale and significance of the project, they argue. An initial fleet of eight ships would initially expand to nearly 100 in order to deploy the necessary amount of chemicals around the world.
There are other less technical drawbacks to the proposal as well. Among the most obvious is that the plan would require international coordination between numerous countries, including the United States '' whose president, Donald Trump, regularly expresses doubt about climate change in general.
Brutal and Extended Cold Blast could shatter ALL RECORDS - Whatever happened to Global Warming?
'-- Donald J. Trump (@realDonaldTrump) November 22, 2018Dr Phil Williamson, an Honorary Reader at University of East Anglia, critiqued the proposal, saying that nations which ''continued to experience extreme climate events'' might then ''consider that solar geoengineering had been responsible'' and would need to be compensated. In other words, cutting the earth off from the heavens might be a real liability issue.
Others have critiqued the strategy for being a band-aid response that ignores the actual causes of the problem.
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Global Compact for Migration
Nederlandse Grondwet - Artikel 94: Voorrang internationale rechtsorde boven nationale wet
Fri, 23 Nov 2018 15:07
Binnen het Koninkrijk geldende wettelijke voorschriften vinden geen toepassing, indien deze toepassing niet verenigbaar is met een ieder verbindende bepalingen van verdragen en van besluiten van volkenrechtelijke organisaties.
In andere talen:English "English"
Fran§ais "Fran§ais"
Deutsch "Deutsch"
Espa±ol "Espa±ol"
EnglishStatutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.
Fran§aisLes dispositions l(C)gales en vigueur dans le Royaume ne sont pas appliqu(C)es si leur application n'est pas compatible avec des dispositions de trait(C)s ou de d(C)cisions d'organisations de droit international public qui engagent chacun.
DeutschInnerhalb des K¶nigreichs geltende gesetzliche Vorschriften werden nicht angewandt, wenn die Anwendung mit allgemein verbindlichen Bestimmungen von Vertr¤gen und Beschl¼ssen v¶lkerrechtlicher Organisationen nicht vereinbar ist.
Espa±olLos preceptos legales en vigor dentro del Reino no sern de aplicaci"n, si la aplicaci"n de los mismos fuere incompatible con estipulaciones de tratados y de acuerdos de organizaciones internacionales de derecho pºblico que obligan a toda persona.
Inhoud sopgave van deze pagina:
Het is mogelijk dat nationale wettelijke voorschriften in strijd zijn met internationale bepalingen. Dan gaan de internationale bepalingen voor. Zo was bijvoorbeeld het ontbreken van een weduwnaarspensioen in de (inmiddels vervallen) Algemene Weduwen- en Wezenwet in strijd met het gelijkheidsbeginsel uit het internationaal verdrag inzake burgerrechten en politieke rechten.
Deze voorrang geldt niet voor het ongeschreven volkenrecht omdat de werking van verdragen en van besluiten van volkenrechtelijke organisaties bekend gemaakt moet zijn door middel van publicatie (artikel 93). Met het ongeschreven recht is dat niet het geval.
Mocht blijken dat nationale wettelijke voorschriften in strijd zijn met internationale bepalingen in verdragen en besluiten van volkenrechtelijke organisaties, dan moet de toepassing van de nationale voorschriften achterwege worden gelaten; de internationale bepalingen gaan dan voor.
Zo is, om een voorbeeld te noemen, het ontbreken van een weduwnaarspensioen in de (inmiddels vervallen) Algemene Weduwen- en Wezenwet in strijd geacht met het gelijkheidsbeginsel uit het Internationaal Verdrag inzake burgerrechten en politieke rechten.
Deze voorrang wordt in artikel 94 niet toegekend aan het ongeschreven volkenrecht. De werking in de nationale rechtsorde van verdragen en van besluiten van volkenrechtelijke organisaties, is afhankelijk gesteld van hun bekendmaking.
Met het oog daarop bepaalt artikel 95, dat de wet regels dient te geven omtrent die bekendmaking. Deze wettelijke regeling is sinds 1994 opgenomen in de .
Afspraken in internationale verdragen en beslissingen van internationale organisaties die voor burgers gelden zijn belangrijker dan Nederlandse wetten.
Uitleg
In dit artikel staat dat afspraken in internationale verdragen en beslissingen van internationale organisaties belangrijker zijn dan Nederlandse wetten.
Dit betekent dat iedere overheidsorganisatie en iedere rechter de plicht heeft een Nederlandse wet niet toe te passen, als een internationaal verdrag iets anders zegt dan onze wet. Dit is alleen zo als in het verdrag rechten en plichten van burgers staan.
Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.
Les dispositions l(C)gales en vigueur dans le Royaume ne sont pas appliqu(C)es si leur application n'est pas compatible avec des dispositions de trait(C)s ou de d(C)cisions d'organisations de droit international public qui engagent chacun.
Innerhalb des K¶nigreichs geltende gesetzliche Vorschriften werden nicht angewandt, wenn die Anwendung mit allgemein verbindlichen Bestimmungen von Vertr¤gen und Beschl¼ssen v¶lkerrechtlicher Organisationen nicht vereinbar ist.
Los preceptos legales en vigor dentro del Reino no sern de aplicaci"n, si la aplicaci"n de los mismos fuere incompatible con estipulaciones de tratados y de acuerdos de organizaciones internacionales de derecho pºblico que obligan a toda persona.
1953
Binnen het Koninkrijk geldende wettelijke voorschriften vinden geen toepassing, wanneer deze niet verenigbaar zou zijn met overeenkomsten, die hetzij v""r, hetzij na de totstandkoming der voorschriften zijn bekend gemaakt overeenkomstig artikel 66.
1956
Binnen het Koninkrijk geldende wettelijke voorschriften vinden geen toepassing, wanneer deze toepassing niet verenigbaar zou zijn met een ieder verbindende bepalingen van overeenkomsten, die hetzij v""r, hetzij na de totstandkoming der voorschriften zijn aangegaan.
1983
Binnen het Koninkrijk geldende wettelijke voorschriften vinden geen toepassing, indien deze toepassing niet verenigbaar is met een ieder verbindende bepalingen van verdragen en van besluiten van volkenrechtelijke organisaties.
Global compact for migration | Refugees and Migrants
Fri, 23 Nov 2018 14:18
The global compact for migration is the first, intergovernmentally negotiated agreement, prepared under the auspices of the United Nations, to cover all dimensions of international migration in a holistic and comprehensive manner.
Today, there are over 258 million migrants around the world living outside their country of birth. This figure is expected to grow for a number of reasons including population growth, increasing connectivity, trade, rising inequality, demographic imbalances and climate change. Migration provides immense opportunity and benefits '' for the migrants, host communities and communities of origin. However, when poorly regulated it can create significant challenges. These challenges include overwhelming social infrastructures with the unexpected arrival of large numbers of people and the deaths of migrants undertaking dangerous journeys.
In September 2016 the General Assembly decided, through the adoption of the New York Declaration for Refugees and Migrants, to develop a global compact for safe, orderly and regular migration.
The process to develop this global compact started in April 2017. The pages in this section detail 18 months of consultation and negotiation, and provide the relevant documentation for each of the events.
On 13 July 2018 UN Member States finalized the text for the Global Compact for Safe, Orderly and Regular Migration (Text available in all official languages).
The Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration will be held on 10 '' 11 December in Marrakech, Morocco.
Global CompactThe Global Compact for Migration is the first-ever UN global agreement on a common approach to international migration in all its dimensions. The global compact is non-legally binding. It is grounded in values of state sovereignty, responsibility-sharing, non-discrimination, and human rights, and recognizes that a cooperative approach is needed to optimize the overall benefits of migration, while addressing its risks and challenges for individuals and communities in countries of origin, transit and destination.
The global compact comprises 23 objectives for better managing migration at local, national, regional and global levels. The compact:
aims to mitigate the adverse drivers and structural factors that hinder people from building and maintaining sustainable livelihoods in their countries of origin;intends to reduce the risks and vulnerabilities migrants face at different stages of migration by respecting, protecting and fulfilling their human rights and providing them with care and assistance;seeks to address the legitimate concerns of states and communities, while recognizing that societies are undergoing demographic, economic, social and environmental changes at different scales that may have implications for and result from migration;strives to create conducive conditions that enable all migrants to enrich our societies through their human, economic and social capacities, and thus facilitate their contributions to sustainable development at the local, national, regional and global levels.The list of the 23 objectives can be found in paragraph 16 of the Global Compact for Migration.
Hillary calls on Europe to control migrants to thwart populism
Sun, 25 Nov 2018 15:48
The New York Times spoke to a number of shocked progressives reeling from Mrs. Clinton's statements to the Guardian:
"I was kind of shocked," Eskinder Negash, the president and chief executive of the U.S. Committee for Refugees and Immigrants, said of Mrs. Clinton's comments. "If she's simply saying you need to cut down on refugees coming to Europe to ask for asylum because they have a well-founded fear of persecution, just to appease some right-wing political leaders, it's just not the right thing to do."
Tanja Bueltmann, a history professor at Northumbria University in Britain who focuses on migration issues, said Mrs. Clinton's perspective was "tragically misjudged."
"Ultimately, immigration is not actually the problem that inflamed voters: Much more foundational issues, such as austerity, are the real reason," Professor Bueltmann said. "Immigrants and refugees are simply the scapegoats populists have chosen to use to drive forward their ideas."
The context in which the interview took place may (or may not) explain Mrs. Clinton's straying away from the Party Line that uncontrolled immigration is an absolute good. The Guardian, you see, is attempting to raise an alarm about global populism and conducted interviews with that it called three "center-left" politicians: Mrs. Clinton, Tony Blair, and former Italian P.M. Matteo Renzi, whom it called "rightwing populism's greatest scalps." In this hypothesis, with the danger of listening to what non-elite voters think on her mind, Mrs. Clinton committed a gaffe in the Michael Kinsley sense: telling the truth by mistake. Her focus was actually on the dangers of the right. The amount of verbiage disparaging her enemies that made it to print is considerable and reeks of projection:
File photo by Gage Skidmore.
Clinton, Blair and Renzi all said rightwing populism had not just fed off issues of identity but was also driven by a disruptive way of conducting politics that dramatises divisions and uses a rhetoric of crisis. The centre left struggles to get its voice heard over the simplistic, emotional language used against it, they said.
This is laughable. The left controls mass media, academia, and popular culture in all three nations, and social media chip in suppressing distribution of conservative voices. And yet they are feigning the role of vici suable to make their voices heard. This would be psychotic-level denial of realty if it were more than a talking point.
The disparagement of her enemies leads to an absurd caricature of them as big-government liberals like Mrs. Clinton:
Clinton said rightwing populists in the west met "a psychological as much as political yearning to be told what to do, and where to go, and how to live and have their press basically stifled and so be given one version of reality."
Remind me: is the Nanny State a goal of conservatives or Democrats?
Almost as if she has been hanging out in lectures at the Heritage Foundation, Mrs. Clinton suddenly is a fan of the Founders' intent:
"The whole American system was designed so that you would eliminate the threat from a strong, authoritarian king or other leader and maybe people are just tired of it. They don't want that much responsibility and freedom. They want to be told what to do and where to go and how to live ... and only given one version of reality.
And we know that it is conservatives (AKA, for now, "populists") who want to run a Nanny State:
"I don't know why at this moment that is so attractive to people, but it's a serious threat to our freedom and our democratic institutions, and it goes very deep and very far and we've got to do a better job of shining a light on it and trying to combat it."
She also reveals her contempt for Steve Bannon, whose attempt to bolster rightwing populist parties in Europe is stalling everywhere outside of Italy. "Rome is the right place for him since it is bread and circuses and it's as old as recorded history. Keep people diverted, keep them riled up appeal to their prejudices, give them a sense they are part of something bigger than themselves '' while elected leaders and business leaders steal them blind. It's a classic story and Bannon is the latest avatar of it."
Tom Maguire suggests that this interview signals that she is not running in 2020:
But one more thing for which to be thankful '' with an anti-immigrant message like this, she won't be running.
I disagree. I think she is attempting to "triangulate" the way her husband did in the 1990s, heeding the advice and terminology of Dick Morris. The venerable technical term for this is co-opting a rival's issue. But Bill Clinton had far more political talent and was a much, much better liar than Hillary, and he was already in office with the left committed to keeping him there because he was their guy.
Hillary may be opening up a world of trouble for herself by speaking out clumsily, or she may be attempting to run against the leftward lurch of her party, with the Sandernista faction feeling its oats. After all, equally inarticulate Nancy Pelosi seems to have vanquished the Progs and secured a return to the speakership. I don't think her lust for power as POTUS has abated.
If this is part of a conscious triangulation strategy, President Trump may well attempt to work his deal-making on her and her allies in Congress, with an appeal for border wall funding.
So far, there is nothing in Trump's Twitter feed on Hillary latest, but then again, it is still early on the start of the holiday weekend.
Triangulation or too much chardonnay? Stay tuned.
In what may be either a instance of triangulation or too much chardonnay, Hillary Clinton has confounded both friends and foes by taking a position against mass, uncontrolled immigration (in Europe, not the USA). Of course, she says the reason has nothing to do with the crime wave, displacement, and sharia that accompanied the arrival of over a million "migrants," but rather is necessary to contain the rise of "populism" in Europe.
The interview with the U.K. Guardian in which she expressed these opinions was conducted before the midterms (according to a separate Guardian article) and for some reason was published only after the voters had spoken. Gee, did the Guardian editors want to avoid depressing (or, as Stacey Abrams would say, "suppressing") Democrat voter turnout by causing some open borders enthusiasts to stay home?
The New York Times spoke to a number of shocked progressives reeling from Mrs. Clinton's statements to the Guardian:
"I was kind of shocked," Eskinder Negash, the president and chief executive of the U.S. Committee for Refugees and Immigrants, said of Mrs. Clinton's comments. "If she's simply saying you need to cut down on refugees coming to Europe to ask for asylum because they have a well-founded fear of persecution, just to appease some right-wing political leaders, it's just not the right thing to do."
Tanja Bueltmann, a history professor at Northumbria University in Britain who focuses on migration issues, said Mrs. Clinton's perspective was "tragically misjudged."
"Ultimately, immigration is not actually the problem that inflamed voters: Much more foundational issues, such as austerity, are the real reason," Professor Bueltmann said. "Immigrants and refugees are simply the scapegoats populists have chosen to use to drive forward their ideas."
The context in which the interview took place may (or may not) explain Mrs. Clinton's straying away from the Party Line that uncontrolled immigration is an absolute good. The Guardian, you see, is attempting to raise an alarm about global populism and conducted interviews with that it called three "center-left" politicians: Mrs. Clinton, Tony Blair, and former Italian P.M. Matteo Renzi, whom it called "rightwing populism's greatest scalps." In this hypothesis, with the danger of listening to what non-elite voters think on her mind, Mrs. Clinton committed a gaffe in the Michael Kinsley sense: telling the truth by mistake. Her focus was actually on the dangers of the right. The amount of verbiage disparaging her enemies that made it to print is considerable and reeks of projection:
File photo by Gage Skidmore.
Clinton, Blair and Renzi all said rightwing populism had not just fed off issues of identity but was also driven by a disruptive way of conducting politics that dramatises divisions and uses a rhetoric of crisis. The centre left struggles to get its voice heard over the simplistic, emotional language used against it, they said.
This is laughable. The left controls mass media, academia, and popular culture in all three nations, and social media chip in suppressing distribution of conservative voices. And yet they are feigning the role of vici suable to make their voices heard. This would be psychotic-level denial of realty if it were more than a talking point.
The disparagement of her enemies leads to an absurd caricature of them as big-government liberals like Mrs. Clinton:
Clinton said rightwing populists in the west met "a psychological as much as political yearning to be told what to do, and where to go, and how to live and have their press basically stifled and so be given one version of reality."
Remind me: is the Nanny State a goal of conservatives or Democrats?
Almost as if she has been hanging out in lectures at the Heritage Foundation, Mrs. Clinton suddenly is a fan of the Founders' intent:
"The whole American system was designed so that you would eliminate the threat from a strong, authoritarian king or other leader and maybe people are just tired of it. They don't want that much responsibility and freedom. They want to be told what to do and where to go and how to live ... and only given one version of reality.
And we know that it is conservatives (AKA, for now, "populists") who want to run a Nanny State:
"I don't know why at this moment that is so attractive to people, but it's a serious threat to our freedom and our democratic institutions, and it goes very deep and very far and we've got to do a better job of shining a light on it and trying to combat it."
She also reveals her contempt for Steve Bannon, whose attempt to bolster rightwing populist parties in Europe is stalling everywhere outside of Italy. "Rome is the right place for him since it is bread and circuses and it's as old as recorded history. Keep people diverted, keep them riled up appeal to their prejudices, give them a sense they are part of something bigger than themselves '' while elected leaders and business leaders steal them blind. It's a classic story and Bannon is the latest avatar of it."
Tom Maguire suggests that this interview signals that she is not running in 2020:
But one more thing for which to be thankful '' with an anti-immigrant message like this, she won't be running.
I disagree. I think she is attempting to "triangulate" the way her husband did in the 1990s, heeding the advice and terminology of Dick Morris. The venerable technical term for this is co-opting a rival's issue. But Bill Clinton had far more political talent and was a much, much better liar than Hillary, and he was already in office with the left committed to keeping him there because he was their guy.
Hillary may be opening up a world of trouble for herself by speaking out clumsily, or she may be attempting to run against the leftward lurch of her party, with the Sandernista faction feeling its oats. After all, equally inarticulate Nancy Pelosi seems to have vanquished the Progs and secured a return to the speakership. I don't think her lust for power as POTUS has abated.
If this is part of a conscious triangulation strategy, President Trump may well attempt to work his deal-making on her and her allies in Congress, with an appeal for border wall funding.
So far, there is nothing in Trump's Twitter feed on Hillary latest, but then again, it is still early on the start of the holiday weekend.
Triangulation or too much chardonnay? Stay tuned.
John Kerry joins Hillary warning Europe of threat of immigration
Sun, 25 Nov 2018 15:47
It's starting to look like some members of the Democrat establishment understand that open borders is a losing issue. It would be too dangerous to take on the issue domestically, so acknowledging that Europe is being harmed by mass immigration/asylum and turning to politicians who will control the borders is a first step. When Hillary Clinton warned of the danger of Europe turning to populists in order to stop the influx, it was startling. But now, it is a trend.
John Kerry has joined fellow failed presidential nominee Clinton in warning Europe that its refugee policies have been a disaster. Ryan Saavedra reports in the Daily Wire:
Former U.S. Secretary of State John Kerry admitted last week during a trip to Europe that the continent has been "crushed" by a transformation that has taken place due to immigration.
Kerry made the remarks while speaking at a Guardian Live event at Central Hall in London where he weighed in on a number of issues and also used the opportunity to bash President Donald Trump.
"Europe is already crushed under this transformation that is taking place due to migration," Kerry said. "In Germany, Angela Merkel is weakened. Italian politics is significantly impacted."
Illegal immigration is currently the top concern of Americans. While the radical wing of the Democrats is explicitly in favor of open borders, the issue drives support to Republicans in key states. It is possible that the old guard of the Democrats is citing Europe and urging border control there as a means of opening the issue for debate in choosing the 2020 nominee.
On the other hand, there is a striking similarity in both the Clinton and Kerry announcements. Both came under the auspices of the UK Guardian, which is pushing the issue of European populists gaining victories. It is possible that after discussing the issue in interviews and other sessions with The Guardian, both Hillary and Kerry independently changed their minds. But because both of them waited until after the midterms (with the cooperation of the Guardian that withheld those comments before the vote was in), it suggest that a strategy is being implemented.
I would love these the Democrats turn against each other, with open borders openly advocated by one faction and the importance of national sovereignty acknowledged by the others, the rhetoric could escalate and even end up with a third part challenge from the left.
Watch closely for public reactions to Hillary and Kerry. I am waiting for Ocasio-Cortez to speak up.
Image credit: Donkey Hotey
It's starting to look like some members of the Democrat establishment understand that open borders is a losing issue. It would be too dangerous to take on the issue domestically, so acknowledging that Europe is being harmed by mass immigration/asylum and turning to politicians who will control the borders is a first step. When Hillary Clinton warned of the danger of Europe turning to populists in order to stop the influx, it was startling. But now, it is a trend.
John Kerry has joined fellow failed presidential nominee Clinton in warning Europe that its refugee policies have been a disaster. Ryan Saavedra reports in the Daily Wire:
Former U.S. Secretary of State John Kerry admitted last week during a trip to Europe that the continent has been "crushed" by a transformation that has taken place due to immigration.
Kerry made the remarks while speaking at a Guardian Live event at Central Hall in London where he weighed in on a number of issues and also used the opportunity to bash President Donald Trump.
"Europe is already crushed under this transformation that is taking place due to migration," Kerry said. "In Germany, Angela Merkel is weakened. Italian politics is significantly impacted."
Illegal immigration is currently the top concern of Americans. While the radical wing of the Democrats is explicitly in favor of open borders, the issue drives support to Republicans in key states. It is possible that the old guard of the Democrats is citing Europe and urging border control there as a means of opening the issue for debate in choosing the 2020 nominee.
On the other hand, there is a striking similarity in both the Clinton and Kerry announcements. Both came under the auspices of the UK Guardian, which is pushing the issue of European populists gaining victories. It is possible that after discussing the issue in interviews and other sessions with The Guardian, both Hillary and Kerry independently changed their minds. But because both of them waited until after the midterms (with the cooperation of the Guardian that withheld those comments before the vote was in), it suggest that a strategy is being implemented.
I would love these the Democrats turn against each other, with open borders openly advocated by one faction and the importance of national sovereignty acknowledged by the others, the rhetoric could escalate and even end up with a third part challenge from the left.
Watch closely for public reactions to Hillary and Kerry. I am waiting for Ocasio-Cortez to speak up.
Image credit: Donkey Hotey
Net Neutrality
Hollywood Wants Hosting Providers to Block Referral Traffic From Pirate Sites - TorrentFreak
Sun, 25 Nov 2018 09:08
The US Intellectual Property Enforcement Coordinator is working hard to update his copyright enforcement plans. In a written submission, Hollywood's MPAA shared a few notable ideas. The group calls for more cooperation from Internet services, including hosting providers, who should filter infringing content and block referral traffic from pirate sites, among other things.
Under US law, hosting companies are seen as neutral intermediaries, but according to the MPAA, these companies should take more responsibility for their role in the piracy ecosystem.
In a letter sent to the US Intellectual Property Enforcement Coordinator (IPEC) Vishal Amin last week, Hollywood's MPAA requests the Government's assistance in this matter.
The IPEC requested input from the public on the new version of its Joint Strategic Plan for Intellectual Property Enforcement to which the MPAA replied with a broad range of suggestions.
The group notes that while there has been a lot of progress on the legal supply side, piracy remains a problem. This is in part due to a lack of involvement from third-party Internet services, who could do more to combat piracy.
''Compounding matters is the lack of accountability of some major online platforms for their failure to prevent content theft and other illicit conduct over their services,'' the MPAA's Senior Vice President Neil Fried writes.
In its submission, the MPAA highlights that there are some voluntary agreements in place, with payment services and advertisers for example, but that's not enough. Other platforms and intermediaries should follow suit, they argue.
This includes hosting providers, which have the ability to shut pirate sites down. However, according to the MPAA, many refuse to do so, voluntarily at least.
''Given the central role of hosting providers in the online ecosystem, it is disconcerting that many refuse to take action when notified that their hosting services are being used in clear violation of their own terms of service prohibiting intellectual property infringement and in blatant violation of the law,'' the MPAA notes.
This should change, and the Hollywood group has some concrete examples of how these companies can improve.
Besides processing takedown notices and terminating repeat infringers, as they are required to do by law, the MPAA also wants hosting companies to use automated piracy filters on their servers.
''Hosting providers should filter using automated content recognition technology; forward DMCA notices to users, terminate repeat infringers after receipt of a reasonable number of notices, and prevent re-registration by terminated users,'' the MPAA suggests.
In addition, hosting providers should not challenge suspension court orders, when copyright holders go up against pirate sites. Going a step further, hosts should keep an eye on high traffic volumes which may be infringing, and ban referral traffic from pirate sites outright.
The MPAA wants these companies to ''implement download bandwidth or frequency limitations to prevent high volume traffic for particular files'' to ''remove files expeditiously'' and ''block referral traffic from known piracy sites.''
Some of the MPAA's recommendationsSome of these suggestions go pretty far. The referral ban, for example, means that hosting providers would have to make sure that Pirate Bay visitors are blocked from entering one of the sites they host through a direct link, even if that site itself is perfectly legal.
The referral ban may be aimed at stopping pirate linking sites from using legitimate storage services for infringing content, but that would result in collateral damage as well.
Hosting companies are not the only web-services that can 'improve' their anti-piracy policies, of course. The MPAA also wants reverse proxy servers, such as Cloudflare, to terminate infringing sites, or at least identify their true location.
Regular ISPs don't have to block pirate sites, at least not voluntarily. However, the MPAA notes that this changes when they are subject to a court order in the applicable jurisdiction.
The Hollywood group hopes that IPEC will continue its efforts to encourage these companies to implement ''voluntary'' measures. It anticipates that some will argue that this violates free expression, but MPAA notes that it does the opposite.
''[C]urbing illegal activity promotes free expression by creating a safer environment where individuals feel comfortable to communicate and engage in commerce, and to create and lawfully access content.''
The push for voluntary agreements with Internet services is just the tip of the iceberg though.
The MPAA further asks IPEC to make sure that that access to WHOIS data should be made public again, to ensure that trade agreements include proper copyright protections, and to encourage other Government departments including the Department of Justice to beef up their anti-piracy efforts.
'---
MPAA's full submission to the US Intellectual Property Enforcement Coordinator is available here (pdf).
What Is Congress Supposed to Promote?
Sun, 25 Nov 2018 09:53
Repeated Supreme Court dicta characterize the Intellectual Property Clause of the UnitedStates Constitution as containing both grants of power and limitations. The Court, however, hasyet to explicate the limit imposed by the Clause's opening words, 'to Promote the progress ofScience and the useful Arts.-- Scholars and jurists have assumed without investigation that'progress-- bears the meaning most potent in Nineteenth Century American civilization: acontinuous qualitative improvement of knowledge inevitably leading to consensus and humanhappiness. This article presents empirical evidence that the 1789 meaning of 'progress-- is'spread.-- The original meaning of Article I, section 8, clause 8 of the Constitution is that
Congress has power to pass only such time-limited copyright and patent statutes as increase thedissemination of knowledge and technology to the public. Congress' modern focus on providingmaximum control and economic benefit to copyright holders is constitutionally illegitimate. TheCourt, therefore, should hold the Copyright Term Extension Act to be unconstitutional when itdecides Eldred v. Ashcroft next term. The same fate should await the anticumvention provisionsof the Digital Millennium Copyright Act. Article I, section 8, clause 8 is most properly referredto as the 'Progress Clause.--
The Congress shall have the power . . . To Promote the Progress of Science and the useful Artsby securing for limited times to Authors and Inventors the exclusive right to theirrespective writings and discoveries.
U.S. Const. Art. I, Sec. 8, Cl. 8
('Progress Clause,-- formerly 'Copyright and Patent Clause,-- 'Intellectual PropertyClause,-- or 'Exclusive Rights Clause--)
Progress Is Our Most Important Product
Ronald Regan, for General Electric [FN 3]
I. Introduction: Why Define 'Progress--?
A. The Stakes in Positive Law
B. The Definitional Hole
C. How the Suggested Reading Fits The Constitutional Scheme
1. Originalism
2. An Evolving Constitution
II. Starting Points and Assumptions for Textual Analysis
III. Drafting and Ratification
IV. Testing Definitions in Context
V. Linguistic Evidence
A. Dictionaries
B. The Pennsylvania Gazette
C. Idea of Progress LiteratureVI. Conclusion
I. Introduction: Why Define 'Progress--?
A, The Stakes in Positive Law
I am fairly sure of what Article I, section 8, clause 8 means. I am hopeful, furthermore,that the core of my reading will be accepted by otherwise disparate interpreters of theConstitution: 'progress-- means 'spread,-- i.e. diffusion, distribution. [FN 4] To the extent that Congress chooses not to act under this clause, [FN 5] the default position is that each person in theUnited States has a property right not to be excluded from publicly accessible knowledge andtechnology. [FN 6] Congress has only a very limited power to create private quasi-property, i.e. rightsto exclude the rest of the commoners. [FN 7] Congress may only create temporary individual rights for'authors-- or 'inventors-- to exclude others from use of 'their respective writings and discoveries--when such individual rights 'promote-- the spread of knowledge ('science--) and technology('useful arts--).
I am much more certain that my suggested doctrine is not yet positive law. Following myanalysis should reverse the pro-copyright holder decisions of Universal City Studios v. Corley [FN 8] and Eldred v. Ashcroft. [FN 9]
My research shows four possible 1780s meanings of 'progress-- in the Progress Clause:quality improvement in the knowledge base, quantity improvement in the knowledge base(numerically), quantity improvement in the knowledge base (judged economically), and spread(distribution to the population). [FN 10] Of these, quantity is the least supportable. [FN 11] Quality has lowsupport and creates problems in context. [FN 12] Spread has the highest support. [FN 13]
The most charitable reading of Congress' post-1970 intellectual property enactmentsmight be that Congress sees the 'Copyright and Patent Industries-- as the strongest part of thecurrent United States economy [FN 14] and, therefore, assumes that giving these industries whateverthey request is the best policy. This approach ignores the probability that current majorstakeholders are merely trying to protect and enlarge their own profit shares _ even when self-protection blocks 'the progress of science and the useful arts,-- in any meaning of the phrase. [FN 15]
If Congress is actually considering the language of the Constitution, Congress appears tobe operating on the naive theory that since some protection promotes writings and discoveries,more protection necessarily better promotes writings and discoveries. [FN 16] Even leaving aside majornormative and baseline problems, one entity's exclusive rights block other creative people fromproducing related works and discoveries. [FN 17] Transaction costs [FN 18] and right-holders' biases [FN 19] increase these blocks.
Correcting the reading of the Progress Clause by recognizing that 'progress-- involvesdissemination, as opposed to qualitative improvement of the knowledge base, has importantresults. Using the proper original reading should result in judicial trimming of congressionalover-protection. For the argument in this section, I will assume mere rational basis review. Thereview standard should be higher because (i) Congress has never bothered to take the limits inthe Clause seriously, (ii) Congress is treading close to textual limits on its power, [FN 20] and (iii)copyright statues are limitations on speech. [FN 21] The review standard issue, however, will have towait for another article. [FN 22]
Let us assume, just for the current argument, that Congress asserts that it has a rationalbasis [FN 23] for believing that e.g. making digital circumvention and circumvention technologyillegal [FN 24] will affect the supply of new writings and discoveries at the margin. Let us also assume,arguendo, that the only relevant arguments pertain to the purpose section of the Progress Clause. Somewhere some writers would not compose and release new works if they cannot preventpersistent computer wizards from bypassing technological envelopes. They will write andpublish the works if they are assured protection from computer wizards. Let us dub this set of writers 'Digital Control Driven.-- Some other writers, of course, would be blocked fromcomposition by a ban on technological circumvention and circumvention devices. They will beunable to get permission to incorporate indispensable bits of pre-existing works into theircreations and will be unable to act on the assumption that the uses are fair [FN 25] because they areunable to bypass the technological envelopes guarding the older works. [FN 26] Let us dub this set ofwriters 'Public Domain Driven.--
Congress bases the ban on circumvention and circumvention technology on alternatetheories. First, if this protection is granted, the Digital Control Driven are likely to produce morewritings than the Public Domain Driven will fail to produce. [FN 27] Second, the writings produced bythe Digital Control Driven are likely to improve human understanding more than would thewritings produced by the Public Domain Driven. Similar arguments could be made regardingextensions of the term or scope of either copyright or patent.
As long as 'progress-- refers to the Idea of Progress, the constitutional issue involves thevalue or quantity of the works produced _ largely regardless of their availability or cost to users. Of course, 'The Idea of Progress-- and 'spread-- are not a dichotomy; they are opposite poles on acontinuum. 'Spread-- requires works to share. 'Quality works-- are useless without some users;the users, however, may be limited to a small elite section of the populace who work on thecutting-edge of knowledge. [FN 28] Nevertheless, if the core meaning of 'progress-- is 'qualityimprovement of the knowledge base,-- the courts are extremely unlikely to hold the legislationunconstitutional. To void the statute, a court would have to insist that Congress' theoreticallyinformed guess on the Digital Control Driven/Public Domain Driven balance is irrational. Considering the complexity and diverse conclusions of the relevant literature, [FN 29] a court is unlikelyto go this far. If 'progress-- means 'spread,-- a court is more likely to second guess Congress. Now,Congress is required to prioritize public access to works over the existence of works. The changein priorities forces Congress to show that the additional rights to exclude create sufficient newaccess [FN 30] to works to counter balance (a) the ability of right holders to restrict access to workswhose copyrights have expired, (b) the ability of right holders to restrict fair uses of workscovered by copyright, (c) the ability of right holders to restrict access to the uncopyrightableelements of copyrightable works, and (d) the ability of right holders to leverage technologicalprotection into contracts limiting downstream distribution of works. [FN 31] Now Congress has a muchhigher evidentiary problem with showing a good faith belief in a 'rational basis-- for itslegislative balance of the creation/dissemination balance. [FN 32] What about the Copyright Term Extension Act? [FN 33] The District of Columbia Circuit heldthe act constitutional because 'to promote the progress of science and the useful arts-- was not asubstantive limit on Congress' power. [FN 34] The majority, however, went one unnecessary stepfurther, and asserted in dicta that even if this language contained some limit, the necessary andproper clause allows Congress to promote progress by increasing the incentive for copyrightholders to preserve old works, providing the sole example of movies in need of restoration. [FN 35] Does this demonstrate that reading 'progress-- as 'spread-- would make the CTEA harder toassail? I think the opposite. Eldred was decided on the vacuity of the purpose section of theProgress Clause. If a court thoughtfully considers 'progress-- (under any definition), the CTEAshould be held unconstitutional in all its applications. The Eldred court merely invoked thealleged upside of the change without considering the downside_ an improper way to do any typeof cost/benefit analysis.
My reading does destroy one argument against the retrospective section of the act _ theargument that extending existing copyrights cannot promote progress because this phraserequires each grant to be paid for with a new work. [FN 36] However, the same limitation can bereached by other textual argument. Let me explain.
The best arguments against the CTEA are not related to the word 'progress.-- First,looking at policy, the CTEA should fail rational basis scrutiny because it is a subsidy granted asmall number of large corporations; copyright is merely a subterfuge used to deflect publicscrutiny and outrage. Any such camouflaged wealth transfer should be suspect as corrupt [FN 37] _ notrationally related to any legitimate legislative purpose. Such a disguised subsidy to powerfulpolitical backers is even more unacceptable when tied to a copyright grant. The historicalancestor of the Progress Clause, the English Statute of Monopolies [FN 38] was the first step inParliament's control of the royal purse strings. No Authors' Exclusive Right (AER) orInventors' Exclusive Right (IER) [FN 39] may be used to bypass full public scrutiny of politicalpayoffs. [FN 40]
Second, looking at the words of the Progress Clause, the CTEA's extension of existingcopyrights breaches the barrier erected by the interaction of 'writers,-- 'authors,-- and 'limitedtimes.-- The Supreme Court has already read the junction of 'writers-- and 'authors-- to requireoriginality. [FN 41] The structure of the Progress Clause ties 'limited times-- tightly to author/writingand inventor/discovery. Therefore, in context, 'limited times-- should mean that any new termmust be premised on additional contributions of 'writings-- from 'authors-- (or discoveries frominventors) _ new original material. Lengthening existing copyrights is unconstitutional,regardless of the meaning of 'progress.--
Third, the words 'limited times-- by themselves require a definite term limit set at thebeginning of protection. [FN 42] Like patent, copyright is strongly analogous to a contractual bargain. [FN 43] In return for public availability, the copyright holder is granted a set of rights to exclude. IfCongress later grants additional rights, the copyright holder most provide new consideration. IfCongress enlarges the copyright holder's power without requiring a quid pro quo, Congress is adishonest agent. [FN 44]
Third, the CTEA only claims to promote 'progress,-- if 'progress-- means 'economicvalue.-- The CTEA's announced primary rationales are (i) to give copyright holders more of thefinancial value of works, and (ii) to help the United States' balance of payments by supporting astrong export industry. [FN 45] Neither of these goals conceivably promote 'progress-- if that wordmeans either 'quality improvement-- or 'spread.-- At best, these goals might increase theeconomic value of 'writings.-- Any such increase, however, is created by statutorily distortingthe market _ which clearly demonstrates that economic value and statutory grants are notindependent. If 'promoting progress-- is a limitation on Congress, therefore, 'economic value-- isnot a possible translation of 'progress.-- [FN 46]
Worse, the CTEA's implied assertion that it increases the economic value of works is anempirical claim made without supporting evidence. The large entities which lobbied for theCTEA obviously believed that the act would increase the economic value of certain copyrights to them. Congress made no apparent effort to determine if the shift of power lowered the totalvalue of copyrights in general or of any specific copyright. The legislative history does notdiscuss the economic value of the non-licensed uses foreclosed by term extension. Cost/benefitanalysis cannot be done by listing benefits and ignoring costs.
If 'progress-- means 'quality improvement,-- Congress could state that it believes the extramoney which will be acquired by large copyright-holding corporations is likely to fund thehighest quality works which will be created in next century. This assumption, however, iseconomically irrational. [FN 47] Furthermore, the legislative history of the CTEA does not demonstratethis as Congress' intent. If a court were to invoke this as Congress' rational basis for the CTEA,it should be faulted for using a contrived apologia to side-step judicial responsibility. Unfortunately, I doubt that the CTEA's opponents could prove the opposite _ that individuallywritten works (which will not be created because of the CTEA) would have been of higherquality. How do you prove the quality of works that will not be created? Over-deference toCongress, therefore, might result in a court's upholding the CTEA.
If 'progress-- means increase in the number of works, the CTEA should fail _ but proofwould be very hard to acquire. At the time an author is considering creation, or a publisher isconsidering initial publication, the additional twenty years (coming only twenty years after theauthor dies) is worth about zero. [FN 48] Humans, however, are not always good at, or interested in,making this type of cost/benefit prediction. [FN 49] Notoriously, few athletes make it rich; yet adisproportionate number of economically disadvantaged youths drop out of school with theintention of becoming basketball superstars. [FN 50] Certainly, the longer term would cut downavailability of building blocks for new works, but holders of large copyright portfolios would stillhave enough stock to keep writing. I do not know of any evidence I could show the court thatwould prove the numerical balance favors a shorter term. Again, proving counterfactuals aboutlikely creation is rather difficult. Again, judicial over-deference to Congress might result in theCTEA surviving.
If progress means 'spread,-- I cannot guarantee that the CTEA would fail, but itsopponents would have more evidence to show a court. Extending the United States copyrightterm extends the term inside the United States both for domestic works and for works from othercountries. [FN 51] By exploring government records, opponents should be able to develop somequantitative approximation of how many works of various types are being fenced out ofcompetitive circulation for an additional twenty-years. [FN 52] This large number of works which maybe denied to the entire population of the United States for an additional twenty-years shouldcompute into an impressive quantity of lost access. Opponents would still have difficultyquantifying how many new works would be created under the different legal regimes, but now,they would have some very strong figures to show the court _ figures Congress seemingly madeno effort to obtain. Since the supporters of the CTEA have better access to such statistics than itsopponents, opponents might even convince the court to place a higher evidentiary burden on thegovernment.
The progress by dissemination claim (that an additional term is necessary for preservationof old works) furthermore, seems facially unrealistic. [FN 53] Generally, by fifty years after the death ofits author, a work's market potential has already been tested. An interested distributor wouldknow which works were worth continued marketing. Risk would be almost completelyeliminated. Common experience shows that works without copyright protection continue to bepublished _ Shakespeare, Milton, and the Bible are easy to find in book stores. [FN 54] If Congressconsidered crumbling old works to be important, furthermore, the CTEA is hardly a proportionalresponse. The number of crumbling old works is presumably only a small subset of the oldworks granted the additional term. [FN 55] Preservation seems mere camouflage; Congress did notlimit the liability of persons who restored old-works after a reasonable, but unsuccessful, searchfor the current copyright holder. A court should have enough hard evidence to overthrow theCTEA on the ground that no rational legislature could conclude that it increased public access towritings.
In sum, reading 'progress-- as 'spread-- increases the possibility of effective court over-sight of Congress' intellectual property legislation. [FN 56] This definition might also effect how thecourts deal with Internet issues such as causes of action for trespass to websites, and attempts torequire permission to set up hyperlinks. [FN 57] I do not, of course, claim that this change wouldrequire the Supreme Court to reign-in Congress.
B. The Definitional Hole
The Supreme Court has never purported to define the individual word 'progress-- in theIntellectual Property Clause, more properly the Progress Clause. [FN 58] So far, the Court has said thatthe entire progress limitation _ in conjunction with the requirement that the res protected beeither the 'writing-- of an 'author-- or the 'discovery-- of an 'inventor-- _ relates to Congress'supposed inability to remove res from the public domain, [FN 59] the non-obviousness requirement toobtain a patent, [FN 60] and the minimal standard of originality in copyright. [FN 61] Additionally, the entireprogress limitation has some relationship both to public availability of technology and writings, [FN 62] and to the uncopyrighabilty of facts. [FN 63]
Academic literature is also oddly reticent about the eighteenth century meaning of theword 'progress.-- I know of no article presenting a detailed explication. Most scholars seem toassume that 'progress-- in the Progress Clause relates to the well-known Enlightenment Idea ofProgress: [FN 64] all is getting better in this, the best of all possible, worlds [FN 65] (smile when you say that,post-modern human). [FN 66] Accepting this premise, Robert Merges asserts that the Framers'unfounded optimism cannot support any meaningful limitations on Congressional power. [FN 67]
Oh, the power of rampant anachronism and assumption! I agree with some of the generalassumptions about 'progress.-- The Idea of Progress had begun to flower by the late eighteenthcentury. [FN 68] This Idea of Progress was an axiomatic, background, cultural assumption in theUnited States by the mid-nineteenth century. [FN 69] But none of this evidences that the American-English word 'progress-- meant the same thing in 1789 that it meant in 1850 or means in 2001. This definitional reticence has practical consequences. Unless 'progress-- is anindependently monitored, objectively measurable goal, Congress' discretion to transfer the publicdomain to private right- holders is effectively almost unbounded. The other textual fences in theProgress Clause have already been breached. 'Limited times-- has been statutorily stretched fromfourteen years [FN 70] to seventy years after the death of the author. [FN 71] One court even approvedCongress's purported creation of perpetual rights to prevent fixation of sound recordings withoutthe performers' permission. [FN 72] An 'author-- is '"he to whom anything owes its origin; originator;maker; one who completes a work of science or literature." [FN 73] 'Writings,-- congruently, include'the literary productions of those authors . . . [including] all forms of writing, printing, engraving,etching, &c., by which the ideas in the mind of the author are given visible expression-- [FN 74] limitedonly by a weak originality requirement. [FN 75] 'Inventions-- may include 'anything under the sun thatis made by man-- [FN 76] including living entities [FN 77] and business methods, [FN 78] provided that any purportedinvention is not obvious to a person of ordinary skill in the relevant art. [FN 79]
True, the Supreme Court [FN 80] has repeatedly stated that Congress' power to create privateintellectual property is limited by the 'promot[ion] of the progress of science and the useful arts,--the recited purpose of Authors' Exclusive Rights (AERs) and Inventors' Exclusive Rights(IERs). [FN 81] The Court, however, has yet to void any Congressional largess on this basis. [FN 82] TheCourt has never even checked to see if Congress purposely or rationally reached the conclusionthat some statutory scheme does, or is likely to, 'promote progress.-- [FN 83] The Court's invocationsof 'progress,-- furthermore, are clearly dicta in all but two cases; [FN 84] even in these cases, most (orperhaps all) of the articulated limitation rests on other words in the Clause. [FN 85] These cases,furthermore, merely construe and enforce statutes. By the narrowest definition of 'holding,-- wehave no Supreme Court holding on the meaning or enforceablity of the 'progress-- limitation inthe Progress Clause.
The Progress Clause's limit should have real bite, because it should constrain theCommerce Clause by negative implication. [FN 86] Such an implied limit should exist because theCourt has held that the 'uniformity-- limit in the Bankruptcy Clause cannot be bypassed byinvocation of the Commerce Clause. [FN 87] The Progress Clause/Commerce Clause interaction iscurrently under attack by the anti-circumvention provisions of the Digital Millennium CopyrightAct [FN 88] and proposed database protection statutes. [FN 89] Congress' increase of the copyright term isunder attack as violative of the 'limited times-- provision. [FN 90] Another issue which seems over-ripefor litigation is the intersection between Constitutional/Congressional policy and state-basedlegal rights, including contractual expansion of AERs and IERs. [FN 91] In sum, the Court has yet to enforce the negative implication of the Progress Clause, [FN 92] butthe pressure to do so is rising. [FN 93] To enforce this limit, the Court will need a definition of'progress.-- This article posits 'spread.--
C. How the Suggested Reading Fits The Constitutional Scheme
1. Originalism
No matter how good my empirical research, I would not expect anyone to accept myanalysis if it was incongruent with basic principles held by the Federalists who drafted andratified the Constitution. This section briefly demonstrates that my reading of the ProgressClause makes sense inside the Federalist belief structure. I am not, of course, claiming that mineis the only reading of the Progress Clause congruent with Federalist principles. A stronger claimis impossible. 'Federalist principles-- is an umbrella name, a short hand designation, for the differing, inconsistent, often incompletely analyzed beliefs held by a multitude of human beingswho cooperated in supporting ratification of a political document.
First, according to Enlightenment Idea of Progress theorists, wide dissemination ofinformation was a requirement for qualitative improvement of arts and sciences. Any subgroupof humans, any nation, might stagnate or regress. Mankind as a whole would 'progress-- becauseof the large number of individuals who would have the opportunity to add onto what earlierindividuals had learned. [FN 94] Writing, therefore, was very important. Committing information to alasting, mobile format allowed more people to share and build on earlier work. [FN 95] This,presumably, is why AERs are only allowable for 'writings.-- [FN 96]
Second, according to both Enlightenment Idea of Progress theorists and many of theFramers, relative equality of all humans was part of the perfect society. According to Condorcet,'Our hopes for the future condition of the human race can be subsumed under three importantheads; the abolition of inequality between nations, the progress of equality within each nation,and the true perfection of mankind.-- [FN 97] This true perfection includes universal education. [FN 98] 'Allmen,-- after all, 'are created equal and endowed by their Creator with certain inalienable rights--including the 'pursuit of happiness-- [FN 99] which requires intelligent, educated choice. Generalpublic education was a common, central tenet. [FN 100] Even the Bill of Rights created institutions forteaching governance skills to the general public. [FN 101]
As Madison famously said, '[k]nolwledge will forever govern ignorance--; '[a] populargovernment without popular information[] or the means of acquiring it is but a prologue to afarce or a tragedy or perhaps both.-- [FN 102] Madison, nevertheless, argued that the Constitution didnot need a Bill of Rights. [FN 103] Presumably, he thought the Progress Clause was not a danger to thepublic's ability to acquire knowledge. This may be because 'progress-- meant 'spread,-- i.e.distribution. Certainly the tension between the First Amendment and the Progress Clause istamed by my reading of 'progress.-- [FN 104]
The Framers' infamous focus on preserving unequal private property [FN 105] does notundermine my argument. Some have argued that Madison, among other Framers, believedauthors had a natural right to copyright protection. [FN 106] This argument, however, overlooks thelimited quasi-property right such Framers seemingly supported. Besides the much narrowerscope of both copyright and patent in English law at the time, we have contemporaneousstatements to that effect by influential persons. Both Francis Hutchinson [FN 107] and JohnWitherspoon [FN 108] taught that an inventor has a natural right to reasonable compensation for hisefforts, but does not have any right to hoard his learning if such reasonable compensation isavailable. [FN 109] The Federalist asserts that the rights of inventors and authors stand on the samelogical premises. [FN 110]
2. An Evolving Constitution
Allowing the meaning of 'progress-- to evolve results in the same reading of the ProgressClause as using the original meaning of the word 'progress.-- Both methods converge on'spread-- as the meaning of 'progress--; both, therefore, construe the Progress Clause to allowonly such private property as helps the dissemination of science and the useful arts. [FN 111] Let meexplain.
If the 'progress-- we want Congress to promote is the latest, most evolved meaning of'progress,-- we should not turn back to the nineteenth century 'Idea of Progress.-- As post-moderns we know, of course, that a poll of the current common use of the word 'progress--would result in a useless cacophony. The language in the Constitution has been removed fromevery day speech and imbued with an almost religious aura. Certainly the aura is toooverpowering, too vague, and too disputed for this type of simplistic empirical research to be anacceptable method of defining legal limitations.
We have, however, a very simple way of determining the modern meaning of 'progress.-- At its core, the post-Renaissance concept of progress is the claim that humans will change overtime into more knowledgeable residents of a better society. To modernize 'progress,-- therefore,we can ask how 'We, The People of the United States-- [FN 112] improved our fundamental charter, theConstitution. What did We enact as constitutional 'progress--?
'We, the People-- changed the Constitution to allow more of us to be part of 'We, thePeople.-- This conclusion does not require any subjective evaluation. Just look at theAmendments to the Constitution. [FN 113] The first ten can be viewed in two different ways. First,they are part of the original document because the Constitution would not have been ratifiedwithout a promise to enact them; they are merely part of the baseline before we look for change. Alternatively, they protect individual citizens against the power of the newly created federalgovernment. [FN 114] Either view is consistent with my thesis.
As for the other Amendments, the general trend is an increase in participation by moreindividual citizens. In 1804, the Twelfth Amendment separates out the votes for President andVice President to allow the viability of the political party; a pooling of resources allowing somegroups to overcome collective action problems. [FN 115] 1865 through 1870 give us the ReconstructionAmendments ending slavery, giving former slaves the vote, and starting the process of forcingthe rest of 'We, the People-- to treat African-Americans with equality. In 1913, the SixteenthAmendment allows the direct federal income tax _ a democratization of the cost of government. Amendment Seventeen makes the election of Senators more direct. In 1920, the NineteenthAmendment gives women the right to vote. Sections one and two of the Twentieth Amendmentenhance popular control of Congress by severely limiting the power of lame-duck members. [FN 116] The Twenty-Second Amendment creates a term limit for the Presidency. In 1961, the Twenty-Third Amendment finally allows the residents of the District of Columbia to vote for Presidentand Vice President. The Twenty-Fourth Amendment, in 1964, outlaws the poll tax as a methodof curtailing the right to vote. In 1971, the Twenty-Sixth Amendment lowers the voting age toeighteen. In 1992, the Twenty-Seventh Amendment restrains the power of Senators andRepresentatives to raise their own salaries without electoral feedback.
Some of these changes are minor. Some are major. All however are part of an ongoingmovement towards allowing more people to have more power over their government. 'We, thepeople,-- therefore, have demonstrated unequivocally that 'progress-- in 'promoting the generalwelfare-- [FN 117] means spread, dissemination, sharing of power.
In sum, if we want to find an evolved meaning for 'progress,-- we can look at theevolution of the Constitution. Constitutional 'Progress-- means sharing, spreading, disseminatingthe power. 'Progress,-- therefore, means 'spread.-- The Progress Clause, thus, allows Congressto create individual rights to exclude only when those rights promote the spread of science andthe useful arts. The explanation is supported by the undoubted dependance of political decisionmaking on access to information. If more people are involved in governing, more people need tobe informed; information needs to be spread throughout the politically empowered population.
II. Starting Points and Assumptions for Textual Analysis
Constitutional construction is generally divisible into four methods: (a) asking what thewords meant when enacted, (b) asking the intent of the drafters or ratifiers of the language atissue, (c) asking how the principles of the drafters or ratifiers counsel us to act in the present caserequiring decision, and (d) asking how modern principles counsel us to act in the present caserequiring decision. [FN 118] The last two methods often involve using modern definitions ofamorphous words such as 'reasonable-- or 'due process.-- [FN 119] As discussed in the next section,original intent, choice (b), seems unavailable for lack of evidence. [FN 120] Choices (c) and (d) founderon the lack of consensus. Both now and in 1789, people disagree about both the correct baselineand the empirical outcome of different protection levels. [FN 121] If we wish to convince disparateothers, therefore, we are left with only method (a), Original Meaning. Original Meaning also hasthe virtue of current Supreme Court approval. [FN 122]
Completely rejecting the original meaning approach as to this particular constitutionalclause, furthermore, would seriously upset current practice. 'Writings-- has been expanded toinclude two and three dimensional art objects and music. [FN 123] Under original meaning analysis, thismove is easily supportable. 'Author-- in eighteenth century English was a very broad term. 'God-- was commonly described as the 'author-- of the physical world. [FN 124] The physical worldwas a text in which man could read divine messages congruent with those in the Scriptures,God's verbal text. [FN 125] Do we wish to cancel copyright protection of art and music? Do we wish toadmit the level of inconsistency required to use an eighteenth century definition of 'author,-- yetinsist on a mid-nineteenth century definition of 'progress--? I suggest that all interpreters of theConstitution admit that we should at least start construction of the Progress Clause with lateeighteenth century word use.
To make any headway, even under Original Meaning theory, I need to make severalassumptions. All are reasonable, but all are merely assumptions.
First, I will assume that the words of the Progress Clause were carefully chosen forsubstantive reasons. [FN 126] As discussed below, the wording does not follow any of the suggestionsmade at the 1787 Constitutional Convention. It does not quote any ancestral document. Perhapsthe drafting committee merely considered the sound of the words. I will assume, however, thatthe committee purposefully chose words that were not legal terms of art. I will assume that thecommittee chose these words because of what they meant.
Second, I will assume that the Progress Clause contains no surplusage. Eighteenthcentury authorities on style demanded brevity and clarity. [FN 127] The no surplusage rule is a timetested cannon of statutory construction. [FN 128] I admit that the Court has been known to be less kindto constitutional language. [FN 129] The Court, however, usually gives intent-related reasons for suchlapses. [FN 130] Intent, however, is too murky in this instance to be a useful tool for someone whowishes to persuade.
Third, I will assume that the word 'progress-- has the same meaning as to the discoveriesof inventors as it does regarding the writings of authors. [FN 131] The parallel construction of theProgress Clause implies this conclusion. At least one leading scholar, however, argues that'commerce-- may have a different meaning in Article I, Section 8, Clause 3 when applied to'commerce among the several states-- than when applied to commerce 'with foreign nations.-- [FN 132] That argument, however, claims an original intent basis for the distinction and admits that, absentan original intent record, the default position should be to give a word the same meaningthroughout.
Before I discuss 'progress,-- I need to provide 1789 definitions for some of the otherwords in the Clause. 'Useful arts-- are the technological arts, as opposed to the liberal arts. [FN 133] Inthe eighteenth century,--science-- included all knowledge and all subjects of organized study. [FN 134]
With this background, we are prepared to construe the word 'progress.--
III. Drafting and Ratification
The standard explicative sources from the constitutional drafting and ratification processare not helpful in defining 'progress' as used in the Progress Clause.
First, the historical precursors of the Progress Clause do not use the same language. TheEnglish 1624 Statute of Monopolies [FN 135] ('Statute--) is the recognized ancestor of American utilitypatents. [FN 136] This Statute was an early Parliamentary attempt to limit monarchial power bypreventing royal access to revenue sources unguarded by Parliament. [FN 137] The Statute opens bybanning all legal claims of 'monopoly,-- [FN 138] but excepts from this general ban certain privilegesgranted to 'the first and true inventor-- of any 'new manufacture.-- [FN 139] The Statute does notmention anything akin to 'progress.-- The purpose preamble discusses only preventing harm tothe public from improper grants. [FN 140] The English Statute of Anne [FN 141] ('Anne--) is theacknowledged ancestor of American copyright statutes. [FN 142] Anne is labeled 'An act for theencouragement of learning-- and declares that it is enacted both to prevent 'printers, booksellersand other persons-- from printing books 'without the consent of the authors or proprietors-- and'for the encouragement of learned men to compose and write useful books.-- [FN 143] Anne doesforeshadow the Progress Clause's assumption that legal control creates monetary rewards which,in turn, may provide a motive for publishing books. The word 'progress,-- however, is absent.
During the Articles of Confederation period, a committee of the Continental Congress didsubmit a report requesting the member states to pass copyright statutes. Twelve enacted suchstatutes. Neither the committee report nor the statutes, however, mention the 'progress-- oftechnology, learning, knowledge, science, or literature. [FN 144] The word 'progress-- does appear in the preambles to the almost identical Massachusetts,New Hampshire, and Rhode Island statutes:
Whereas the improvement of knowledge, the progress of civilization, the public weal ofthe community, and the advancement of human happiness, greatly depend on the effortsof learned and ingenious persons in the various arts and sciences . . . . [FN 145]
'Progress-- is not tied to 'knowledge--; it is tied to 'civilization.-- This phrase may easily meanthat civilization is to spread geographically and throughout the population_ hardly an oddthought considering how little of the available land had been settled and how many niceties ofsociety were confined to large settlements with water transport. [FN 146] This geographic reading of'the progress of civilization-- is congruent with the wording of the then-current constitution of thestate of Massachusetts.
Wisdom and knowledge, as well as virtue, diffused generally among the body of thepeople, being necessary for the preservation of their rights and liberties; and as thesedepend on spreading the opportunities and advantages of education in the various parts ofthe country, and among the different orders of the people, it shall be the duty of thiscommonwealth to cherish the interests of literature and the sciences, and all seminaries ofthem; especially the university at Cambridge, public schools and grammar schools in thetowns; to encourage private societies and public institutions, rewards and immunities, forthe promotion of agriculture, arts, sciences, commerce, trades, manufactures, and anatural history of the country; to countenance and inculcate the principles of humanityand general benevolence, public and private charity, industry and frugality, honesty, andpunctuality in their dealings; sincerity, good humor, and all social affections, andgenerous sentiments among the people. [FN 147]
This passage is repeated almost verbatim in the New Hampshire state constitution; [FN 148] it is slightlyechoed in the Rhode Island Constitution. [FN 149] Similarly, four of these early copyright statutes assertthat new works help 'mankind,-- [FN 150] and five make provision for overriding the author's privilegeif he fails to make sufficient copies of his work available locally at reasonable prices. [FN 151]
In summation, eight of the twelve pre-U.S. Constitution copyright statutes officiallyendorse the spread of knowledge.
At the 1787 Constitutional Convention, delegates voiced several relevant suggestions forcongressional powers. 'To grant to literary authors their copy rights for a limited time.-- [FN 152] 'Toencourage by premiums & provisions, the advancement of useful knowledge and ofdiscoveries.-- [FN 153] 'To grant patents for useful inventions.-- [FN 154] 'To secure to Authors exclusiverights for a limited time.-- [FN 155] While several of these suggestions rely on the concept of monetaryincentive, none uses the word 'progress.-- Madison's notes, furthermore, do not include anydiscussion of these suggestions. All we know is that the current language of Art. I, section 8,clause 8 emerged complete from committee on September 5, 1787 and was accepted with no onecontradicting. [FN 156]
The ratification debates and related literature are unhelpful. They barely mention theProgress Clause. No one defined the word 'progress.-- [FN 157] The fullest discussion we have isMadison's short paragraph in the Federalist Papers. [FN 158] Madison claimed that, as to patents andcopyrights, 'the public good fully coincides with the claims of individuals.-- This seemssimplistic at best. We might consider Madison's words a gloss on the word 'progress,-- but I ammore inclined to dismiss The Federalist's squib as a rapidly penned attempt to discuss all clausesin the proposed Constitution. The Federalist paragraph misstates then-current English law. [FN 159] The Federalists, furthermore, were rather too busy replying to objections to the Constitution tospend much thought on a clause whose positive grant of power had not been attacked. [FN 160]
In sum, while many scholars assume that the words in the Progress Clause invoke theIdea of Progress and paraphrase earlier documents, these are mere assumptions. The ProgressClause has unique wording and comes without an official set of definitions. [FN 161] We must,therefore, turn to other evidence.
IV. Testing Definitions in Context
The Progress Clause makes more linguistic sense when 'progress' is defined as 'spread'of knowledge and technology rather than either 'qualitative improvement-- or 'quantitativeimprovement,-- whether quantity is judged numerically or by economic value.
The first problem with accepting either of these alternative definitions is surplusage. If,as I have assumed, the Progress Clause contains no surplusage, 'promoting the progress ofscience and the useful arts-- must mean something different from 'promoting science and theuseful arts.-- [FN 162] This alone bars both the quantity and quality definitions.
'Quality improvement-- makes the language redundant. Telling a legislature 'to promotethe quality improvement of science and the useful arts-- is the same as instructing it to 'topromote science and the useful arts--; both reduce to encouraging the investment of time andmoney into work in science and the useful arts. My hunt through seventeenth and eighteenthcentury sources, furthermore, located numerous usages of the shorter phase or its equivalent withthis meaning. Francis Bacon's leading book arguing the practical usefulness of the search forknowledge is titled 'The Advancement of Learning,-- not 'The Advancement of the Progress ofLearning.-- [FN 163] Mandeville's 'Fable of the Bees-- repeatedly refers to 'promoting-- arts andsciences, [FN 164] but never to 'promoting the progress-- of any art or science. Alexander Hamilton'sfamous manufacturing group called itself the Pennsylvania Society for Encouragement ofManufactures and the Useful Arts, [FN 165] not the Pennsylvania Society for the Encouragement of theProgress of Manufactures and the Useful Arts. The Statute of Anne is 'An act for theencouragement of learning,-- not for 'the encouragement of the progress of learning.-- TheMassachusetts and New Hampshire Constitutions call for the 'promotion of agriculture, arts,sciences, commerce, trades, manufactures, and a natural history of the country,-- not for the'promotion of the progress of agriculture, [etc.].-- Even the Continental Congress' committeereport argues that 'the protection and security of literary property would greatly tend toencourage genius [and] to promote useful discoveries--; [FN 166] it does not speak of 'encouraging theprogress of genius-- or 'promoting the progress of useful discoveries.-- [FN 167]
The quantitative definition makes 'the progress of-- even more clearly redundant. Whatdoes it mean to 'promote science and the useful arts,-- if not to take action that will increase thequantity of time, effort, money, or other resources devoted to 'science and the useful arts-- so asto increase the probable output? What about an economic interpretation of quantity? Under aneconomic reading, Congress is supposed to create those rights to exclude which result in thecreation of works with the greatest total economic value. Unfortunately, the economic value of awork depends on the legal rights Congress creates. [FN 168]
As the chart on the Pennsylvania Gazette demonstrates, [FN 169] furthermore, the quantitativeincrease meaning of 'progress-- was quite rare. I found only twenty-one numerical uses out of atotal of 575 occurrences of the word 'progress.--
The next problem is clarity. Why use an unusual meaning of a common word whenmore usual words exist? [FN 170] My research evidences that an eighteenth century writer of Englishwho wanted to indicate a desire for qualitative improvement would have been more likely to usesome form of 'improvement,-- [FN 171] 'perfection,-- [FN 172] or 'advancement.-- [FN 173] Pinkney, for example,suggested that Congress have the power 'to encourage by premiums & provisions, theadvancement of useful knowledge and of discoveries,-- echoing Bacon's treatise. [FN 174]
Additionally, the wide meaning of 'science-- makes 'qualitative improvement-- anunreasonable goal for an eighteenth century American. 'Science-- included all knowledge,especially all subjects of study. [FN 175] Not all of these can reasonably be supposed capable ofqualitative improvement. Consider the 'science-- often touted as central to education, moralphilosophy. [FN 176] If 'progress-- means 'qualitative improvement,-- we seem to be imputing to a massof eighteenth century Christians the belief that human effort will improve on the lessons taughtby Jesus and the Scriptures. [FN 177] The literary sciences are also problematic. Rhetoric, poetry, anddrama are 'sciences-- in eighteenth century terminology. Would the general public of the UnitedStates (or even a major segment of the Framers) go on record that later authors will out shineCicero, Homer, and Sophocles? I find this doubtful in light of these ancients almost canonicalplacement in the scholarly pantheon. [FN 178]
The contrary assumption makes the Framers bad politicians. Fear that any denigration ofrevealed religion would lead to the total breakdown of civilization was common in the eighteenthcentury. [FN 179] Even if the majority of the drafters took an extreme modernist position on literatureand religion, why enshrine this position in a constitution? At the least, antagonizing supportersof ancient writers or apostles seems an absurd way to start an important, contentious, politicalbattle.
Assuming, arguendo, that 'progress-- originally meant 'qualitative improvement,-- whathappens to the Progress Clause if we accept current scepticism about the possibility of objectivedecisions on qualitative improvement in some types of 'science--? [FN 180] Many commentators havenoted the later importance of scientific advances which were originally seen as merecuriosities. [FN 181] As for literature, art, and music, Justice Holmes warned us in 1903 that '[i]t wouldbe a dangerous undertaking for persons trained only to the law to constitute themselves finaljudges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.-- [FN 182] If Congress can only grant intellectual property rights which promote 'progress,-- but wehave no objective way to decide what constitutes 'progress,-- we have three options _ all bad
First option, because we must take the Constitution's limits seriously, and becauseCongress cannot tell if any proposed action is within constitutional limits, Congress no longerhas power to grant intellectual property rights. No one wants this result.
Second option, because no one can demonstrate that Congress' 'progress-- guess iswrong, and because Congress is presumed to act constitutionally, [FN 183] Congress can grant anyexclusive intellectual property rights it wishes. This seems to be Merges' position. [FN 184] Optiontwo, however, stands the Federalists' claims of a limited government on their head. Albeit indicta, furthermore, the Supreme Court has repeatedly asserted a limit lurking in the phrase 'topromote the progress of science and useful arts.-- [FN 185]
Third option, Congress cannot be sure what produces higher quality, so Congress may actto promote greater quantity on the assumption that some of the additional writings anddiscoveries will raise quality. This is the best of the three approaches, but it still has severalproblems. First, we are amending the Constitution without the required process. Second, we areselectively allowing the Constitution's words to change meaning over time _ discarding bothconsistency and the Original Meaning approach.
In sum, the leading alternatives to 'spread-- as the definition of 'progress-- do not work inthe context of the Progress Clause. Now that I have explained why 'spread-- should be acceptedif it is a possible definition, let us turn to the overwhelming linguistic evidence that 'spread-- isthe most likely eighteenth century American meaning of the word 'progress.--
V. Linguistic Evidence
A. Dictionaries
Dictionary definitions have a pedigree in constitutional interpretation. The SupremeCourt cited dictionaries in approximately two hundred cases during the 1990s. [FN 186] Chief JusticeRehnquist famously used 'the first American Dictionary,-- Noah Webster's 1828 edition, todefine 'establishment-- in the Bill of Rights. [FN 187] Dr. Samuel Johnson's famous tome has alsofigured in constitutional jurisprudence. [FN 188] I will, therefore, start with these judicially approvedsources _ and then discuss why they are problematic evidence.
Johnson provides five definitions of the noun 'progress.-- First 'course; procession;passage-- as illustrated by Shakespeare's line 'I cannot, by the progress of the stars, Give guesshow near to day.-- [FN 189] Second is 'advancement; motion forward,-- illustrated only by linesinvolving physical motion. [FN 190] As definition three, Johnson separates out 'intellectualimprovement; advancement in knowledge; proficience.-- [FN 191] Fourth, 'progress-- may mean'removal from one place to another.-- Fifth, a 'progress-- is 'a journey of state; a circuit-- asBacon describes, 'He gave order, that there should be nothing in his journey like unto a warlikemarch, but rather like unto the progress of a king in full peace.-- [FN 192] In sum, Johnson suppliesdefinitions including both physical movement and mental change. Physical motionpredominates.
The 1828 Webster also emphasizes the physical motion aspect of 'progress.-- The firstdefinition is 'a moving or going forward,-- for example, 'a man makes a slow progress or a rapidprogress on a journey.-- [FN 193] The second is 'a moving forward in growth; increase; as the progressof a plant.-- Third is 'advance in business of any kind; as the progress of a negotiation; theprogress of arts.-- Fourth, is an 'advance in knowledge; intellectual or moral improvement;proficiency.-- For example, '[t]he student is commended for progress in learning; the christianfor his progress in virtue and piety.-- The fifth definition is 'removal; passage from place toplace.-- Sixth is 'a journey of state, a circuit,-- a usage credited to Addison and Blackstone. [FN 194] The source is interesting because American colonists were devotees of Blackstone'sCommentaries. [FN 195] A royal visit to the outlying districts may, therefore, be the eighteenth-century's core example of a 'progress.-- [FN 196]
Webster's third definition is confusing. Why is 'advancement in business-- the samemeaning as 'advancement in arts--? Is Webster using 'art-- to mean ' hand craft--? [FN 197] The bestreading of Webster's third definition is change over time towards a specific goal _ as completinga business negotiation or finishing a piece of hand crafting. I found repeated use of thisdefinition in the Pennsylvania Gazette. [FN 198]
In sum, these two dictionaries evidence the importance of physical motion in the 1789meaning of 'progress.--
Dictionary making by Johnson or Webster is not, however, the best evidence of wordusage in the 1789 United States. Such early dictionaries were fundamentally proscriptive, notdescriptive. We have an unimpeachable source for this, Johnson's and Webster's owndescriptions of their dictionary projects. Johnson wished his dictionary to spur 'the improvement of [his] native tongue[], [FN 199] 'instruct-- its readers, [FN 200] and 'fix the English language.-- [FN 201] Johnson intended to include 'thewords and phrases used in the general [polite] intercourse of life, [and] found in the works ofthose . .. commonly stile[d] the polite writers,-- [FN 202] 'the best writers-- as chosen by Pope. [FN 203] Johnson's definitions are both upper class and inherently English_ as opposed to American.
As for Webster, [FN 204] while on the correct continent, his work is almost fifty years post-ratification. Words changed rapidly in that time period in the United States. [FN 205] Webster didattempt to insert American words and American meanings for words, especially words withpolitical overtones, [FN 206] but he did not claim to have taken any survey of public usage to obtainaccurate definitions. Like Dr. Johnson, Webster relied on the best writers, but, unlike Johnson,Webster's 'best writers-- included Americans such as Franklin, Washington, and Kent. [FN 207]
In sum, dictionary definitions are not enough. [FN 208] The dictionaries are not empiricalreports on the word usage of any group of persons. Additionally, Johnson is on the wrongcontinent and Webster is almost fifty years too late. Furthermore, each word has multipledictionary definitions. You do not have to believe in an evolving Constitution to refusedeterminative weight to either Webster or Johnson.
B. The Pennsylvania Gazette
The electronic age has provided a wonderful new access point to 18th century Americanword usage. We now have searchable access to the full text of each surviving issue of the NewYork Times of the American colonies, the Pennsylvania Gazette. Because 'progress-- is not atechnical word of the legal art, I consider the word usage of the Pennsylvania Gazette the bestcurrently available evidence of what 1789 American residents would have understand from theword 'progress-- in the Progress Clause. Many ordinary Americans limited their reading to theBible and the newspapers. [FN 209] The word 'progress-- does not appear in the King James Version ofthe Bible. [FN 210] Because the Progress Clause also lacks exposition in the standard sources oforiginal intent/meaning, [FN 211] many originalist scholars should agree on the Gazette's primacy.
To decide the meaning of 'progress,-- I ran a full text search for just that one word in allexisting issues of the Pennsylvania Gazette printed from its inception through the end of theseventeenth century. I located 575 uses of the word 'progress.-- Based on the results, Iformulated five distinct definitions. I then divided the occurrences into six categories: the fivedefinitions and mere quotations of the constitutional clause. [FN 212] The results are:
Definition Occurrences [a quote of the phrase in the Constitution] 6 movement through time, i.e. a chronologically arranged account withoutimplication of qualitative improvement [FN 213] 80 numerical increase without implication of qualitative improvement 21 change or action towards a pre-set goal, e.g. progress towards finishing a book 125 qualitative improvement 124 physical movement without implication of qualitative improvement, e.g.progress of a fire or a traveler 213 These results do not support the usual assumption that 'the progress of science and usefularts-- means qualitative improvement in 'science-- and 'useful arts.-- By far, the most commonuse of 'progress-- was for destructive physical movement. The single most common word in thephrase 'the progress of ....-- is 'fire.-- The Gazette speaks of the 'progress of a fire-- when amodern newspaper would report its 'spread.-- Fifty-one times fire made a 'progress-- throughsome human construction, such as a house. Eighty-five times the geographical 'progress-- was byan armed man, group of men, or an entire army _ quite often the enemy's troops. Thirteen timessome illness made a 'progress.-- The Gazette also reported the 'progress-- of other destructiveentities _ such as ravenous insects, [FN 214] bad weather, [FN 215] and possibly hostile ships. [FN 216] This patternof use is inconsistent with the persistent assumption that in colonial North America 'progress--meant 'qualitative improvement.--
The result is even more striking when one notes that the text of the proposed federalConstitution, the Federalist Papers, and numerous other ratification discussions were printed inthe Pennsylvania Gazette.
The Federalist Papers, for example, contain two uses of the word 'progress,-- [FN 217] neither ofwhich involves qualitative improvement. The Federalist printed in the Nov. 14, 1787 issue of thePennsylvania Gazette referred to the 'progress of hostility and desolation-- among the coloniesduring the Revolutionary War; the same description of the colonists also asserts that 'theirhabitations were in flames-- and 'many of their citizens were bleeding.-- [FN 218] Federalist No. 5 uses'progress' while arguing that multiple confederacies are not a good idea because, inter alia, theywill not remain 'on an equal footing in point of strength.-- 'Independent of those localcircumstances which tend to beget and increase power in one part, and to impede its progress inanother, we must advert to the effects of that superior policy and good management ....-- [FN 219] Let us, now, look more closely at the 124 entries where 'progress' might mean some typeof qualitative improvement (but not change over time towards a pre-set goal). The followingchart lists the subjects which were said to progress qualitatively:
subject occurrences individual humans or schools 15 populated geographic areas 27 religious vices or virtues 12 arts 4 commerce & manufacturing 10 mankind 7 architecture 1 public & private improvements 1 liberty 3 militia 7 liberal sciences 6 science 6 national assembly 1 agriculture & commerce 1 revolution 5 government 2 language 2 poetry 1 useful arts 1 illness 2 arts & sciences 2 geographic knowledge 1 truth & reason 1 political knowledge 2 dangerous innovations 1 [unclear oddities] 3 Next, we should recognize the difference between a person (or persons
[FN 220] ) showingqualitative improvement in a skill or pre-existing knowledge set and the improvement of theknowledge set available. Only the second is The Idea of Progress. The first is the acquiring ofpersonal proficiency _ as covered by Webster's fourth definition and Johnson's third. Congruently, both of Webster's examples of this definition involve a person obtaining moreproficiency. At least three of Johnson's five examples involve increase in some specificperson's proficiency in knowledge or virtue.
[FN 221] Seventy of the Gazette's 'quality-- occurrences refer to increase in proficiency by someperson or group of persons: 'progress-- by schools, individuals, populated geographic areas, andthe national assembly. Several of the other progressing subjects are likely to be increasing inquality by increasing geographically or quantitatively (numerically or in economic value) _religious vices and virtues, commerce & manufacturing, public & private improvements,agriculture and commerce, revolution, illness, and dangerous innovations; these total anotherthirty-two occurrences. Deducting the three oddities, the proficiency increases, and the quantityincreases, leaves us only twenty possible occurrences of 'progress' for quality improvement inthe fund of knowledge, The Idea of Progress.
To recheck, I went back through my notes looking for occurrences of 'progress-- thatmight be references to improvement in the knowledge-base. I found forty-six which, on firstreading, might be so construed. These occurrences are listed chronologically in the chartimmediately below.
Year ItemNo. [FN 222] Subject which isprogressing Substrate in/throughwhich progress is beingmade Comments 1739 3638 our colony [not mentioned] resignation speech ofspeaker ofPennsylvanialegislature 1739 same our colony [not mentioned] same 1752 14881 human mind 'an account of the gradualprogress of the humanmind, from its firstdawning of sense to thehighest perfection, bothintellectual and moral ofwhich it is capable-- advertisement for'Noetica: or the firstprinciples of humanknowledge,-- authornot mentioned. Thebook is 'very properto form the minds ofyouth in knowledgeand virtue.-- [FN 223] 1754 16632 liberal sciences [not mentioned] announcement oflottery to raise fundsfor College of NewJersey 1755 17858 the earliest settlers of South Carolina 'broughtwith them the Laws of the Mother Country ... theprivilege of enacting laws for their goodGovernment, without which they could have madeno progress-- [but asking legislature not to pass anyunusual act without first learning King's pleasure] speech by Gov. of S.Carolina at openingof legislative session 1771 48758 science 'in this infant country-- open letter fromtrustees of a charityschool to Lt. Gov.John Penn on the sadoccasion of his returnto England 1771 49682 'the French language is like to keep pace with theliberal arts and sciences which have already madesuch great progress in this infant colony-- advertisements forpupils to learn French 1771 49224 'Cultivation of thearts and Sciences-- 'your Province-- Letter from man inWilliamsburg, VA toPhiladelphia,mentioning rewardgiven byPennsylvaniaAssembly to personwho 'improved theOrrery-- 1772 50481 science [not mentioned] Letter from AmericanPhilosophical Societyasking readers tocontribute readingson magneticvariations forcompilations into auseful report 1773 52679 'useful arts-- in America advertisement for alocally producedvarnish 1775 57092 province ofPennsylvania in science and literature opening of flowerypolitical essay byCamillus 1776 59903 arts and sciences in America address by Governorof Georgia to statelegislature;requesting morepersons tomanufacturegunpowder 1776 59857 men 'as individuals-- subtopic in bookbeing advertised,Lord Kaims (HenryHome), 'SixSketches on theHistory of Man-- [FN 224] 1776 same 'the origin andprogress of arts-- [not mentioned] subtopic in book 1776 same 'the female [sex]-- [not mentioned] subtopic in book 1777 60919 USA towards 'an elegance offreedom-- address inPennsylvanialegislature 1778 62959 truth [not mentioned] advertisement for Dr.Price's book,'AdditionalObservations onCivil Liberty and thewar with America-- [FN 225] 1782 67818 arts USA wording ofrecommendation ofan American editionof the HolyScriptures. Congressgave printerpermission to publishthis recommendation 1783 69297 language etc.[phrase used is 'riseand progress oflanguage, etc']
[unmentioned] advertisement forHugh Blair's book'Lectures onRhetoric and BellesLettres-- [FN 226] 1783 same poetry same 1786 73117 'these laudablesciences-- of 'fraudand injustice-- citizens of Rhode Island ironic opening tocommercialannouncement that aRI person had paid amortgage in papercurrency 1788 75402 'politicalknowledge-- [unmentioned] Dec. 10 letter from'an american citizen--giving 'thoughts onthe subject ofamendments to thefoederal constitution-- 1788 75380 'political science-- [unmentioned] Dec. 3 ' -- 1788 same 'our progress-- 'to greater perfection-- same 1789 75916 the arts 'their progress andimprovement-- advertisement forsubscription to adictionary especiallyuseful for artificers 1789 76360 'an industrious andfrugal people-- 'towards wealth andcomfort-- Letter from NorthCarolina on interalia ratification ofUS Const. 1789 76338 truth and reason Paris Aug. 30, 1789 letterfrom Paris 1789 same 'such ideas--[limitation of king'spower] 'from the days of MagnaCarta to the last revolutionin England, theirretrograde motion from thetime of the great Henry, toLouis XVIth in France, andtheir dormant state formany ages in all of Europe,it is astonishing ..-- same 1789 76353 science in not falling for delusions,such as tales of evil spirits from the Gazette ofthe United States,The Tablet No.LXXII 1790 76728 humanity [not mentioned] announcement ofcontents of the May1790 issue of 'TheUniversal Asylumand ColumbianMagazine-- 1790 76909 science in America announcement ofdialogues spoken atpubliccommencementexercises of thecollege ofPhiladelphia 1790 77075 'violated rights ofreason andhumanity-- in France Americans shouldcongratulatethemselves on givingFrance the spirit ofliberty 1790 77159 'further progress is daily making in the geographicknowledge of our country-- advertisement formaps to be publishedon subscription 1790 76877 sciences [not mentioned] from title of a'dialogue-- performedat collegecommencement 1791 77582 liberty USA ceremonial addresson the Anniversary ofthe Columbian Orderby the Sons ofTammany 1793 78935 architecture USA announces prizechoice in competitionfor plan of a newhotel 1794 79575 the arts and sciences in the USA letter complaining ofBritish actionsagainst the USA;responds to King'sexpression ofpleasure in prosperityof the USA 1794 79441 mankind [not mentioned] letter from agentleman in thewestern territoryreporting revoltLouisiana revoltagainst Spain 1795 80551 arts in the USA announces inventionof a machine 1796 81010 USA [not mentioned] Patriotic Toast at acelebration of thePresident's Birthday 1796 81165 human race[implied] [unclear, seems to be arts,sciences, liberty, socialhappiness, and philosophy] US Constitutionshould be amended toclarify relative treatypower of Presidentand Congress 1797 81970 human mind [not mentioned] discussion ofdistribution of booksto the public librariesof the FrenchRepublic. Mentionssome libraries shouldcontain 'everythingthat can perfectreason, industry, andthe arts.-- 1797 82039 of an enlightenednation to the summit of publicvirtue and happiness speech atentertainment givento Pres. Adams bythe citizens of NewYork 1798 82518 'sacred flame ofliberty-- among English people,including fleets and armies English traitor'sletter to Frenchgovernment 1798 82268 'revolutionaryprinciples-- in Cantons of Switzerland 1800 83321 science [not mentioned] Toast atIndependence Dayparty of the Societyof Cincinnati A more critical review of these forty-six occurrences of 'progress' demonstrates thepaucity of relevant Idea of Progress uses. First, seventeen are from after ratification. They mayeasily be unreflective echoes of the constitutional phrase. Fully thirty are puffs _ writingsintended for emotional effect, such as advertisements or ceremonial speeches. The empoweringclauses of a legal document use language much more precisely. [FN 227] Many of the references tobooks may easily be using 'progress-- in the historical/temporal organization sense. A numberare more reasonably read as referring to geographic spread or numerical increase.
Let us look more closely at the Gazette's numerous 'progress---mentioningadvertisements for books _ some available to buy and others which will become available if theadvertiser receives sufficient advance subscriptions. The most common such book advertised isBunyan's Pilgrim's Progress. [FN 228] In that famous religious text, 'progress-- is an allegoricaljourney. [FN 229] In 1771, James Beattie, a well known literary scholar, published The Minstrel; or,The Progress of Genius, recounting the allegorical journey of a poetical genius. [FN 230] Many titlesinclude the phrase 'the rise and progress of ___--. These books are merely histories, as shown bythe chronological use of the term 'progress-- in descriptions of books with the word 'history-- intheir titles. [FN 231]
None of the forty-six possibilities avoids all of these problems.
In summation, the Pennsylvania Gazette entries demonstrate that 'progress' wasoverwhelming used to mean something other than qualitative improvement, the Idea of Progress. The most common usage was 'spread,-- or some other type of physical movement.
C. Idea of Progress Literature
Even if the most common meaning of 'progress-- was something other than 'qualityimprovement of the human knowledge base,-- my thesis would be problematic if the standardeighteenth century method of denoting such quality improvement had been the word 'progress.-- My research, however, demonstrates the opposite. During discussions of the Idea of Progressthesis, late eighteenth century speakers of English more commonly used 'improvement,--'perfection,-- or 'advancement-- (as opposed to 'progress--) when referring to the betterment ofmankind's knowledge base.
On December 11, 1750, Turgot gave a public lecture at the Sorbonne on the philosophicaladvances of the human mind. [FN 232] This may have been the public debut of the Idea of Progressthesis in its Enlightenment formulation. [FN 233] The philosophical theory is based on the Lockianconcept that man's mind at birth is a clean slate. All man's ideas originate in some form ofsensory input. Since all men basically have the same sensory equipment and roughly similarinputs, all men tend towards the same ideas. [FN 234] Over time, [FN 235] mankind as a whole will accumulateand integrate information and ideas; over time, therefore, as by natural law, mankind willadvance in knowledge and virtue. Different nations, however, will advance at different ratesbecause of local conditions. Many nations, at many times, furthermore, will regress. Natural lawrequires merely that mankind as a whole advance over time. [FN 236] Condorcet closely followedTurgot in time and theory. [FN 237] Both men wrote in French. [FN 238] The Idea of Progress, of course, allows the word 'progress-- to accumulate the disparatemeanings discussed above. The history of mankind becomes a chronicle of mankind'simprovement _ thus allowing the extension of the noun 'progress-- from 'journey-- to'allegorical journey-- to 'movement through time-- to 'quality improvement over time.-- If youbelieve that natural law will necessarily lead to the improvement of mankind over time, instancesof chronological progression largely overlap instances of quality improvement. Additionally, ifyou believe that the improvement of human society and its knowledge base require the diffusionof knowledge, the 'progress of knowledge-- may refer to its spread. These overlaps often obscurethe writer's definition of the single word 'progress.--
Condorcet's Life of M. Turgot was printed in London, in English, in 1787. [FN 239] While itmay have reached North America, the Pennsylvania Gazette collection contains no mention ofit. [FN 240] This book contains thirty uses of the word 'progress.-- Seventeen seem to refer to thequalitative improvement of either some type of science or of mankind as a whole. [FN 241] Seven referto physical movement. [FN 242] Three could as easily refer to the quality improvement of some type ofknowledge or the physical diffusion of that knowledge. [FN 243] Three refer to chronologicalordering. [FN 244] The book, however, uses another word to mean quality improvement of either aknowledge set or mankind at least twenty-four times. [FN 245]
Well known English-language treatments of the Idea of Progress from the seventeenthand eighteenth centuries are found in books on disparate subjects. Francis Bacon's subject washow to advance human knowledge. His call for empiricism was followed in 1655 by MericCasaubon's scientific treatment of incidents commonly explained religiously. BernardMandeville, George Berkeley, Lord Shaftesbury, Francis Hutchinson, and Adam Smith treat theIdea of Progress as part of moral philosophy. Adam Smith then expands moral philosophy intoeconomics. [FN 246]
Let us start with Francis Bacon. Bacon usually wrote in Latin, but around 1605 he didpublish an English work addressed to James I of England, 'The Twoo Bookes of Francis Bacon:Of the Proficience and Advancement of Learning, Divine and Humane.-- [FN 247] Bacon attempts toprove the practical usefulness of increasing mankind's knowledge of the natural world, surveysthe then-current state of knowledge, and presents suggestions for action. [FN 248] In the course of thework, Bacon uses the word 'progress-- four times _ twice for a specific human's increase inproficiency, [FN 249] once for a journey, [FN 250] and once for change over time. [FN 251] As displayed in his title,Bacon uses 'advancement-- when referring to improvement in the human knowledge base. [FN 252]
Meric Casaubon uses the word 'progress-- three times in 'A Treatise ConcerningEnthusiasm.-- [FN 253] Twice the word means history, that is a chronological ordering of events. [FN 254] Thethird use denotes quality improvement in the sense of a specific person's obtaining proficiency. [FN 255]
In 1711, Anthony Ashley Cooper, third Earl of Shaftesbury, published an almostcomplete collection of his earlier writings as 'Characteristics of Men, Manners, Opinions,Times.-- [FN 256] The collection includes eight uses of the word 'progress.-- I classify seven of these asmeaning history, a chronological ordering. [FN 257] The eighth refers to specific persons gainingproficiency. [FN 258]
Replying to Shaftesbury, [FN 259] Bernard Mandeville's 'The Fable of the Bees-- presented thenotorious thesis that many of mankind's selfish actions help society. [FN 260] The first part waspublished under another title in 1705, but did not attract much attention until republished in1723. While negative comments accumulated, Mandeville wrote a second volume which waspublished in 1728. [FN 261] By 1787, the work was sufficiently well known in the United States to bereferred to in a stage play. [FN 262] The work runs almost 800 pages [FN 263] but only uses the word'progress-- four times. One use refers to specific persons obtaining proficiency. [FN 264] One refers toapproaching a set goal. [FN 265] The other two refer to the improvement of the human race's capabilityor knowledge base. [FN 266] When referring to the quality improvement of human knowledge orcharacter, however, Mandeville is much more likely to say 'perfection,-- 'improvement,-- or'advance.-- [FN 267] In 'A Letter to Dion,-- Mandeville never uses the word 'progress.-- He does refer,however, to 'the Advancement of worldly Glory.-- [FN 268]
George Berkeley wrote 'Alciphron, or the Minute Philosopher-- in Rhode Island whilewaiting in vain for Parliament to fund a missionary college in Bermuda. 'Alciphron-- waspublished in England in 1732. It quickly attracted comment, but was generally denigrated. [FN 269] The text includes eight uses of the word 'progress.-- Six times 'progress-- means chronologicalordering; [FN 270] once the 'progress-- is a metaphorical journey by the soul; [FN 271] the last use refers to aperson's increase in proficiency. [FN 272]
Looking for the word 'progress,-- I read a number of works by Francis Hutchinson:Reflections Upon Laughter and Remarks upon the Fable of the Bees, [FN 273] An Inquiry into theOriginal of Our Ideas of Beauty and Virtue, [FN 274] Reflections on Our Common Systems of Morality,and On the Social Nature of Man. [FN 275] I located not one use of the word 'progress.-- Hutchinsonuses the word 'improvement-- when discussing qualitative advances in science or arts. [FN 276]
Now for Adam Smith's two main works: The Theory of Moral Sentiments [FN 277] and TheWealth of Nations. [FN 278] The Theory of Moral Sentiments includes only two uses of the word'progress,-- neither for quality improvement of any kind. [FN 279] The Wealth of Nations containsmany instances of the word 'progress.-- The clearest support of my claim (that 'progress--usually does not mean 'quality improvement--) is that Smith twenty-eight times uses the phrase'the progress of improvement-- to mean the chronological progression of quality increase. [FN 280] Inthis phrase, 'improvement-- means 'advance in quality.-- In an additional thirty-eight instances,Smith uses 'progress-- (by itself) to mean chronological ordering. [FN 281] Twice 'progress-- meansadvancement toward a preset goal; [FN 282] once it means journey; [FN 283] once it means a person's increasein proficiency. [FN 284] Smith uses 'progress-- only four times to mean quality improvement of someknowledge or skill base. [FN 285] Improvement in quantity (either numerical or economic) is the bestmeaning of 'progress-- seven times. [FN 286] On sixteen occasions, Smith uses 'progress-- in a way thatmight mean either quantity or quality improvement, [FN 287] or a mixture of both. [FN 288] Smith's favoritemeaning for 'progress,-- therefore, is chronological ordering, i.e. history. As discussed earlier, inthe Progress Clause, 'progress-- as 'chronological ordering-- reduces into quantitative orqualitative improvement. [FN 289]
. . . . .
Looking at all the linguistic evidence, I conclude that an ordinary American of 1789 wasmost likely to have read 'progress-- in the Progress Clause of the Constitution to mean 'spread,--i.e. to allow Congress to grant limited monopolies only when they promote the distribution ofscience and the useful arts throughout the population.
VI. Conclusion
This article uses linguistic evidence to disprove a long standing assumption about theProgress Clause, which gives Congress 'the power ... To Promote the Progress of Science andthe useful Arts by securing for limited times to Authors and Inventors the exclusive right to theirrespective writings and discoveries.-- [FN 290] The word 'progress-- is not a reference to theEnlightenment Idea of Progress and, thus, an anachronistic bias incapable of cabining Congress. The word 'progress-- means 'spread.-- Congress does not have the power to create anyintellectual property regime it thinks will increase the Gross National Product, campaigndonations from holders of large copyright portfolios, or world harmonization. [FN 291] Any right toexclude others from use of writings and discoveries must promote the spread of knowledge andtechnology. This clarification of the Constitutional language warrants court overthrow of boththe circumvention limitations in the Digital Millennium Copyright Act and the twenty yearsubsidy provided copyright holders by the Copyright Term Extension Act.
Long live the public domain. [FN 292]
FN 1 Earlier academics call this the 'Copyright and Patent Clause.-- Since neither'copyright-- nor 'patent-- appears in the text, I have been using the phrase, 'Intellectual PropertyClause.-- See Malla Pollack, Unconstitutional Incontestibility? The Intersection of the IntellectualProperty and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v.Silstar Corp., 18 Seattle Univ. L. Rev. 259, 260 & n.1 (1995). That name, however, both useswords not in the text and incorrectly implies the primacy of the rights granted patent andcopyright holders by Congress. Yochai Benkler has proposed the textual 'Exclusive RightsClause.-- See Yochai Benkler, Through the Looking Glass: Alice and the ConstitutionalFoundations of the Public Domain, in Duke Conference on the Public Domain: Focus PapersDiscussion Drafts 192, 194 & n.3 (2001) (on file with author), forthcoming Duke L. Rev. (2002)& available at <http://www.law.duke.edu/pd> (last visited Nov. 2001). As this article explains,the best name would be the 'Progress Clause.-- Robert Goldwin earlier suggested the samename, but under the assumption that 'progress-- referred to 'quality improvement.-- See RobertGoldwin, Why Blacks, Women, and Jews Are Not Mentioned in the Constitution and OtherUnorthodox Views 37- 41 (1990) .
FN 2 Visiting Associate Professor/Visiting Scholar, Northern Illinois Univ., College of Law.My thanks for helpful comments to attendees at the Intellectual Property Section program at the2002 AALS Annual Meeting, participants in the First Annual Intellectual Property Conferencesponsored by Benjamin N. Cardozo School of Law & DePaul College of Law (2001); the facultycolloquium of Dayton Univ. School of Law, Ann Barlow, Wendy Gordon, Eileen Kane, DennisKarjala, Larry Lessig, Jessica Litman, Neil Netanel, Timothy Philips, Richard Saphire, E. C.Walterscheid, and Peter Yu. All mistakes rest with the author.
FN 3 This slogan was registered by General Electric with the U.S. P.T.O. on July 7, 1964 for,inter alia, 'periodic entertainment programs-- and first used in commerce May 2, 1950. Theservice mark registration has expired. See Registration No. 0772966 <http://tess.uspto.gov> (visited Nov. 19, 2001). The slogan climaxed the institutional advertising pitches on the GeneralElectric Theater which ruled Sunday night on CBS from February 1953 through May 1962. Formost of this time, the slogan was delivered by proto-United States President Ronald Regan. G.E. claimed that '[p]rogress in products goes hand in hand with providing progress in thehuman values that enrich the lives of us all.-- See William L. Bird, General Electric Theater, at<http://www.mbcnet.org/ETV/G/htmlG/general elect.htm> (visited Nov. 19, 2001).
FN 4 See infra Sections IV and V. This is the core of my analysis and has the strongestevidentiary support.
FN 5 Congress, however, passed both the first patent and the first copyright statute in thesecond session of the first congress. Patent Act of 1790, 1 Stat. 109; Copyright Act of 1790, 1State 124. Neither the patent nor the copyright statute has ever been allowed to lapse.
FN 6 See Malla Pollack, The Owned Public Domain: The Constitutional Right Not to beExcluded _ or the Supreme Court Chose the Right Breakfast Cereal in Kellogg v. NationalBiscuit Co., 22 Hastings Comm/Ent L.J. 265, 267-291 (2000). This is the most disputable part ofmy thesis.
FN 7 Such a right to exclude is closer to a privilege allowing use than to a fee simpleabsolute. The remandermen (the commoners) hold a future interest which will ripen into a muchmore robust quasi-property right. 'Commoner-- here means a person with an ownership right notto be excluded from using the resource, the 'common,-- in 18th century parlance. This is JohnLocke's definition of 'property,-- something '[t]he nature whereof is, that without a Man's ownconsent it cannot be taken from him.-- John Locke, Two Treatises of Government, SecondTreatise § 193. This is a property law regime and should not be confused with the nature of good'owned.-- The definition includes both common-property regimes (where a limited number ofpersons have rights not to be excluded) and open-access regimes where no one may be excluded. See Charlotte Hess & Elinor Ostrom, Artifacts, Facilities, and Content: Information as aCommon-Pool Resource, in Duke Conference on the Public Domain: Focus Papers DiscussionDrafts 44, 53-57 (2001) (on file with author), forthcoming Duke L. Rev. (2002) & available at<http://www.law.duke.edu/pd> (last visited Nov. 2001). Unlike grass for sheep, or books inlibraries, ideas are neither rival nor subtractable.
FN 8 Universal City Studios, Inc. v. Corley, _ F.3d _, 2001 WL 1505495, 60 U.S.P.Q.2d1953 (2d Cir. No. 00-9185, Nov. 28, 2001, aff'g sub nom Universal Studios v. Remeides, 111 F.Supp.2d 294 (S.D.N.Y. 2000) (upholding anti-circumvention provisions of the DigitalMillennium Copyright Act, hereinafter 'DMCA--). See infra text accompanying notes 23-32(discussing DMCA).
FN 9 Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) (upholding Copyright Term ExtensionAct, hereinafter 'CTEA--), cert. granted sub nom. Eldred v. Ashcroft (Feb. 19, 2002; No. 01-618). See infra text accompanying notes 33-54 (discussing CTEA). See also Golan v. Ashcroft,Civ. 01-B-1854 (D. Colorado; complaint filed Sept. 19, 2001) (raising constitutional issues withboth CTEA and Copyright Term Restoration Act, codified at 17 U.S.C. 104A)<http://con.law.harvard.edu/openlaw/golanvashcroft/> (visited Jan. 10, 2002).
FN 10 See infra notes 212-231 and accompanying text.
FN 11 See infra notes 168-169, 212 and accompanying text.
FN 12 See infra notes 162-185, 212-231 and accompanying text.
FN 13 See infra notes 212-231 and accompanying text.
FN 14 See, e.g., Statement of Howard Coble, Chair of Subcommittee on Courts andIntellectual Property at Hearing of July 27, 2000 by that subcom. Regarding Sovereign Immunityand Protection of Intellectual Property at 1 ('Congress has enacted [intellectual property] lawssince 1790, resulting in the development of American intellectual property that is the envy of theworld. It is one of the top US exports, generates billions of dollars in revenue, creates jobs, andenriches the lives of the American people and the world.--)<http://www.house.gov/judiciary/cobl0727.htm> (visited Dec. 15, 2001).
FN 15 See, e.g., Jessica Litman, Copyright Legislation and Technological Change, 68 OregonL. Rev. 275 (1989) (discussing stake-holder negotiation process used for drafting United Statescopyright statutes and how this process allows entrenched interests to block technological changein order to protect their current market power); L. Ray Patterson, Eldred v. Reno: An Example ofthe Law of Unintended Consequences, 8 J. of Intel. Prop. L. 223, 230 (2001) (asserting copyrightindustry lobbyists have written United States copyright statutes since 1905). Assuming that thewillingness to spend large sums on lobbying signals a request in the public's economic interest isirrational. See Richard E. Baldwin & Frederic Robert-Nicoud, Entry and Asymmetric Lobbying:Why Governments Pick Losers, Nat'l Bur. of Econ. Res. Working Paper No. W8756 (assertinggroups in economic decline spend more on lobbying) available at <http://www.ssrn.com> (visited Feb. 7, 2002), or from authors at baldwin@hei.unige.ch ; f.1.robert-nicoud@lse.ac.uk ;Akira Okada & Arno Riedl, Reciprocity, Inefficiency and Social Exclusion: ExperimentalEvidence, Tingergen Inst. Discussion Paper No. TI 99-044/1 (asserting exclusive coalitions resultin large efficiency losses) available at <http://www.ssrn.com. > (visited Feb. 28, 2002).
FN 16 See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of'Rights Management--, 97 Mich. L. Rev. 462 (1998) (criticizing economic approach towardscopyright policy); Julie E. Cohen, Copyright and the Perfect Curve, 53 Vanderbilt L. Rev. 1799(2000)(same).
FN 17 See 17 U.S.C. § 106; 35 U.S.C. § 271. See also Rebecca S. Eisenberg, Patents and theProgress of Science: Exclusive Rights and Experimental Use, 56 Univ. of Chicago L. Rev. 1017,1086 (1989) (calling for an experimental use exception to patent infringement because'enforcement of [patents] against subsequent researchers can sometimes interfere with furtherprogress in the field of the invention.--). The level of protection is an especially complex issuebecause larger firms and firms holding larger patent portfolios have greater ability to chill otherentities' research and development behavior. See Jean O. Lanjouw & Mark Schankerman,Enforcing Intellectual Property Rights, working paper 8656 at 3-6, Nat'l Bur. Of Econ. Res.(presenting results of empirical study of U.S. patent litigation) <http://.www.nber.org/papers/w8656> (visited Dec. 21, 2001) (copy on file with author). Asimilar portfolio advantage has been hypothesized in copyright. See Yochai Benkler, Siren Songsand Amish Children: Autonomy, Information, and Law, 76 NYU L. Rev. 23, 106-111 (2001)(explaining power of holding a large copyright portfolio).
FN 18 For example, copyright no longer requires notice or prompt registration. See 17 U.S.C.§§ 401(a), 408(a). How do you make an offer without knowing the identity of the copyrightholder? See Jessica Litman, Remarks on The Public Domain and the Commons: History &Theory, at Duke Conference on the Public Domain (Nov. 2001) (pointing out that the UnitedStates' joining the Berne Convention has resulted in reversal of the baseline assumption that anycopyrightable item without clear notice was available for use without permission or liability)available in realtime audio at<http://realserver.law.duke.edu/ramgen/publicdomain/pubdom_1.smil> (last visited Dec. 26,2001).
FN 19 Such biases support the fair use status of much parody. See Campbell v. Acuff-RoseMusic, Inc., 510 U.S. 569, 591-92 (1994) (recognizing that holder of copyright in original isunlikely to give permission to parody underlying work). See also Wendy Gordon, Fair Use AsMarket Failure: a Structural and Economic Analysis of the Betamax Case and its Predecessors,82 Colum. L. Rev. 1600 (1982).
FN 20 See Ashcroft, 255 F.3d at 854 ('I do not accept that it is sufficient for Congress tomerely articulate some hypothetical basis to justify the claimed exercise of an enumeratedpower.--)(Sentelle, J. dissenting from denial of rehearing en banc of case involving Congress'extension of copyright term); Reply Brief of Appellant, Eldred v. Reno, reprinted in 18 CardozoArts & Ent. L. Rev. 655, 662-663 (2000) (arguing that Feist was not decided under rational basisreview).
FN 21 See Reply Brief, supra note 20, at 668-669; Yochai Benkler, Free As the Air toCommon Use, 74 N.Y. L. Rev. 354 (1999).
FN 22 See Malla Pollack, Dealing with Old Father Williams, entry in symposium on "Eldredv. Ashcroft: Intellectual Property, Congressional Power and the Constitution,"forthcoming Loyola of Los Angeles L. Rev. Fall 2002.
FN 23 Congress notoriously does not look at the facts allegedly supporting industry cries forgreater rights to exclude. See, e.g., Steven Breyer, The Uneasy Case for Copyright In Books, 84Harv. L. Rev. 281, 251 (1970) (general statement); Malla Pollack, The Right to Know?:Delimiting Database Protection at the Juncture of the Commerce Clause, the IntellectualProperty Clause, and the First Amendment, 17 Cardozo A.E.L.J. 47, 89-97 (1999) (discussinglack of evidence supporting Congress' 'factual findings-- in proposed database protection bill).
FN 24 See, e.g., 144 Cong. Rec. H7102 (daily ed. Aug 4, 1998)(remarks of Rep.Slaughter)(praising Digital Millennium Copyright Act because it helps 'combat the devastatingloses to American companies that are being caused by the international piracy of copyrightedworks.--).
FN 25 17 U.S.C. 107.
FN 26 17 U.S.C. § 1201. Even without technological barriers, the cost of standing suitpresumably chills a large number of arguably fair uses.
FN 27 The relationship between quantity and quality is discussed infra section IV. As to thisspecific statute, the balance is skewed because the method of protection strongly discouragesquality improvement in one specific 'useful art,-- encryption technology. See, e.g., Copyrights:Content Owners Making New DMCA Claims; GNUTELLA sites, SMI Expert All Get Letters,BNA Patent, Trademark, & Copyright Daily (May 3, 2001) (reporting cease and desist letter sentby the Secure Digital Music Initiative warning Princeton Univ. professor Edward Felton not torelease his research on decryption technology for peer review; Felton decided not to presentpaper at a conference; SDMI's attorney then denied intention to sue academics) (available onLEXIS as 5/3/2001 PTD d3).
FN 28 Reading 'progress-- as 'spread,-- does not eliminate the constitutional basis of therequirement for non-obviousness in patent law. As to the 'useful arts,' quality improvement is required by the words 'inventors-- and 'discoveries.--
FN 29 See, e.g., Adam B. Jaffe, The U.S. Patent System in Transition: Policy Innovation andthe Innovation Process, Nat'l Bur. Econ. Res., Working Paper (1999) (reviewing recenteconomic analyses of patent protection); A. Samuel Oddi, Un-Unified Economic Theories ofPatents, 71 Notre Dame L. rev. 267, 268 n. 6 (1996)(mentioning conflicting literature on patents'economic effects).
FN 30 The basic question would be how many times a person accessed a work. P x W = A. Distribution of the people with access (geographically, demographically etc) might be relevant,as might the diversity etc. of the works accessed.
FN 31 But see Jane Ginsburg, Copyright and Control Over New Technologies ofDissemination, 101 Colum. L. Rev. 1613, 1618, 1636 (2001) (asserting possible benefits topublic from DMCA because inter alia (i) Library of Congress's first study of statute's effects didnot find disaster, and (ii) some copyright holders might not release works in digital form sansDMCA). Professor Ginsburg's brilliant and nuanced analysis over looks, inter alia, (i) theextreme narrowness of the Library's study, (ii) the existence of works whose copyright holdersare unclear, and (iii) the DMCA's grant to copyright holders of power to limit access to non-copyrightable material.
FN 32 The hurdle, of course, would vary depending on which brand of rational review thecourt employed. The Supreme Court has looked hard at Congress' evidence in several recentcases where Congress had purported to abrogate state sovereign immunity, see Bd. of Trustees v.Garrett, 531 U.S. 356, 367-72 (2001); Florida Prepaid Postsecondary Education Expense Bd. v.College Savings Bank, 527 U.S. 627, 639-41 (1999), but rational basis review is most commonlytoothless, see Richard B. Saphire, Equal Protection, Rational Basis Review, and the Impact ofClaiborne Living Center, Inc., 88 Kentucky L. J. 591, 639 (1999-2000) ('Claiborne's implicitchallenge to the reigning equal protection paradigm proved to be short-lived. As things nowstand, expecting that a court might invalidate a classification subject to rational basis scrutiny islike expecting to win the lottery.--). But see Ashcroft, 255 F.3d at 854 ('I do not accept that it issufficient for Congress to merely articulate some hypothetical basis to justify the claimedexercise of an enumerated power.--)(Sentelle, J. dissenting from denial of rehearing en banc ofcase involving Congress' extension of copyright term).
FN 33 The Copyright Term Extension Act of 1998 (hereinafter 'CTEA--), Pub. L. No. 105-298, 112 Stat. 2827 (adding twenty years to copyright term for both pre-existing and new works).
FN 34 See Eldred, 239 F.3d at 378.
FN 35 See id. at 379.
FN 36 See Reply Brief of Appellant, Eldred v. Reno, reprinted in 18 Cardozo Arts & Ent. L.J. 655, 660-62 (2000) (making this argument); Patterson, supra note 15, at 234 (same).
FN 37 See Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: TheIntellectual Property Clause as an Absolute Constraint on Congress, 2000 Univ. of Il. L. Rev.1119, 1174-76; Minority Views of Mr. Brown in S. Rept. 104-31 (2d Sess.).
FN 38 21 Jam. I c.3 (1624).
FN 39 I use these terms to clearly distinguish the rights allowed by the Constitution fromthose Congress has chosen to create by statute (patents and copyrights). See Pollack,Unconstitutional Incontestibility?, supra note 1, at 291 (introducing terminology and explainingits usefulness).
FN 40 See Malla Pollack, Purveyance and Power, or Over-Priced Free Lunch: TheIntellectual Property Clause as an Ally of the Takings Clause in the Public's Control ofGovernment, 30 Southwestern Univ. L. Rev. 1 (2000) (providing detailed historical backing forthesis that Progress Clause may not be used to side step government's fiscal accountability).
FN 41 See Feist Publications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 346-47 (1991). Similarly, 'inventor-- and 'discovery-- have been held to require 'non-obviousness-- for patentgrants. See Graham v. John Deere Co., 383 U.S. 1, 5-12 (1966).
FN 42 The use of the plural 'times-- does not undercut this definition. The plural (i) allowsthe original grant to include a renewal term, and (ii) allows patents and copyrights to havedifferent term limits.
FN 43 See Pollack, supra note 6 [Owned Public Domain], at 291-93 (discussing case lawsupport for the bargain theory of patents).
FN 44 See Heald & Sherry, supra note 37, at 1162-1164 (finding a quid pro quo principle inthe Progress Clause).
FN 45 See S. Rept. 104-315 (2d Sess.) at 3-19. The export rationale is greatly weakened bythe copyright industry's major reliance on foreign-made copies of American works. See Pollack,supra note 23, at 94-96 (discussing fudge of difference between 'foreign sales-- and 'exports-- ina report submitted to Congress in support of the DMCA).
FN 46 See also infra note 168 and accompanying text (further discussing economic reading of'progress.--).
FN 47 See Dennis S. Karjala, Statement of Copyright and Intellectual Property LawProfessors in Opposition to H.R. 604, H.R. 2589, and S. 505 'The Copyright Term ExtensionAct,-- Submitted to the Committees on the Judiciary U.S. Senate [and] U.S. House ofRepresentatives 21 (Jan. 28, 1998)<http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/legmate/1998Statement.html> (visited Jan. 7, 2002) (demonstrating irrationality).
FN 48 See Heald & Sherry, supra note 37, at 1173-74 (providing calculations); Karjala,supra note 47 (demonstrating absence of additional incentive).
FN 49 See, e.g., Donald Braman & Dan Kahan, More Statistics, Less Persuasion: A CulturalTheory of Gun-Risk Perceptions, Yale Law School Public Law & Legal Theory Working PaperSeries, Working Paper No. 5, at available at 5 - 8 <http://papers.ssrn.com/abstract=286205>(visited Dec. 28, 2001) (also on file with author) (asserting that persons' risk aversion does notfollow purely rational lines but is largely explainable by their cultural orientation); Timor Kuran& Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stanford L. Rev. 683 (1998)(discussing cognitive failures common in assessing probabilities); Paul H. Rubin, How HumansMake Political Decisions, 41 Jurimetrics J. 337 (2001) (same).
FN 50 See Michael Madow, Private Ownership of Public Image: Popular Culture andPublicity Rights, 81 Cal. L. Rev. 125, 216-18 (1993).
FN 51 See Brown, supra note 37; Karjala, supra note 47, at 6-7.
FN 52 In the United States copyright holders are generally allowed to stop all distribution of awork. See Brown, supra note 37. To defuse the (to me transparently unconvincing) argumentthat copyright holders would allow most uses if paid, we might be able to estimate the number ofworks where locating the copyright holder would be quite difficult or impossible. Copyrightholders might decide that maximum revenue would be produced by creating temporally limitedavailability. Disney, for example, is heavily advertising that DVD's of its popular filmsPinochio; Mujlan, Tarzan, and Snow White and the Seven Dwarfs will be unavailable afterJanuary 31, 2002. <http://disney.go/com/disneyvideos/ofers/time.html> (visited Jan. 8, 2002). Snow White is allegedly disappearing into the vault for ten years. TV commercials aired onDeKalb, Il. AT&T Cable Network on Jan. 8, 2002 (viewed by Malla Pollack).
FN 53 See also Karjala, supra note 47, at 21-22 (arguing that businesses' willingness to takerisks is not related to income available from unrelated projects).
FN 54 See Brown, supra note 37.
FN 55 Two major restorers of old films argued against the CTEA, partly because they haddifficult in locating copyright holders in order to obtain permission to restore old works. SeeAppellant's Reply Brief in Eldred v. Reno, reprinted in 18 Cardozo Arts & Ent. L. J. 657, 666(2000).
FN 56 I am not arguing that more court power is necessarily good. I am merely reacting to thefacts that (a) Congress has abjectly failed to protect the public domain, and (b) public choicetheory suggests we should expect a continuing institutional bias towards congressional over-protection of intellectual property. See, e.g., Mark A. Lemley, The Constitutionalization ofTechnology Law, 15 Berkeley Tech. L. J. 529, 531-534 (2000). But see Robert P. Merges, OneHundred Years of Solicitude: Intellectual Property Law, 1900-2000, 88 Cal. L. Rev. 2187, 2234-39 (2000) (arguing that over-protective legislation is usually blocked by competing interestgroups).
FN 57 See Dan L. Burk, The Trouble with Trespass, 4 J. of Small & Emerging Bus. L. 27(2000) (suggesting that nuisance law provides better policy fit than does trespass or property lawfor cases where web-site operators wish to prevent types of access). But see I. Trotter Hardy, TheAncient Doctrine of Trespass to Web Sites, 1996 J. Online L. art. 7<http://www.wm.edu/law/publications/jol/articles.shtml> ( visited Dec. 16, 2001) (arguing thatweb sites should be protected by analogy to property law).
FN 58 'The Congress shall have the power . . . To Promote the Progress of Science and
the useful Arts by securing for limited times to Authors and Inventors the exclusive right to theirrespective writings and discoveries.-- U.S. Const. Art. I, Sec. 8, Cl. 8 ('the Intellectual PropertyClause,-- or 'Progress Clause--). This Clause is the only use of the word 'progress-- in theConstitution. See Charles W. Stearns, Concordance to the Constitution, in Thurston Greene, TheLanguage of the Constitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabulary ofthe United States Constitution 969, 1009 (Greenwood Press 1991). This concordance stopsbefore the Reconstruction Era amendments. See Thurston Greene, Preface, in Thurston Greene,The Language of the Constitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabularyof the United States Constitution xv, xviii (Greenwood Press 1991). The author supplies nosources for explaining the 1789 word 'progress.-- See Thurston Greene, The Language of theConstitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabulary of the United StatesConstitution xi (Greenwood Press 1991) (demonstrating absence of 'progress-- from alphabeticallist of words explained in source book).
FN 59 See Graham v. John Deere Co., 383 U.S. 1, 6 (1966) ('Congress may not authorize theissuance of patents whose effects are to remove existent knowledge from the public domain, or torestrict free access to materials already available.--). But see 17 U.S.C. § 104A (purporting torestore copyright in certain works which had entered the public domain due to the right holders'failure to comply with formalities); Tyler T. Ochoa, Patent and Copyright Term Extension andthe Constitution: A Historical Perspective at 24-25, 32-47, (working paper on file with author)(discussing copyrights and patents which were revived by private laws); Memorandum inSupport of Defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief CanBe Granted at 22-34, Lawrence Golan v. John Ashcroft, Civil Action No. 01-B-1854 (D.Colorado) <http://con.law.harvard.edu/openlaw/golanvashcroft> (visited Jan. 10, 2002) (arguingthat restoration is constitutional (i) under the Copyright Clause as demonstrated by firstCongress' passage of statute providing copyright to works already printed in the U.S., and (ii)under the Treaty Power as demonstrated by Missouri v. Holland, 252 U.S. 416, 432 (1920)).
FN 60 See Graham, 383 U.S. at 6.
FN 61 See Feist Publications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 345 (1991).
FN 62 See, e.g., Fogarty v. Fantasy, Inc., 510 U.S. 517, 526 (1994) (Copyright's core purposeis 'promoting broad public availability of literature, music, and other arts.--); Bonito Boats, Inc.v. Thunder Craft Boats, Inc., 489 U.S. 141, 164 (1989) (clarifying that Court's earlier pre-emption cases 'protect more than the right of the public to contemplate the abstract beauty of anotherwise unprotected intellectual creation _ they assure its efficient reduction to practice andsale in the marketplace.--).
FN 63 See Feist, 499 U.S. at 345 ('[F]acts are not copyrightable.--).
FN 64 Even my earlier articles may be read as making this assumption. Two interestingarticles do analyze the 'Idea of Progress-- as applied to intellectual property. See Michael D.Birnhack, The Idea of Progress in Copyright Law, 1 Buffalo Int. Prop. L.J. 3 (2001) (discussing'the progress of-- as central to the Clause, but assuming without discussion that these words referto 'the Idea of Progress.--); Margaret Chon, Postmodern 'Progress--: Reconsidering theCopyright and Patent Power, 43 DePaul L. Rev. 97 (1993) (same). Most articles merely assertthe relevance of 'The Idea of Progress.-- See, e.g., Karl B. Lutz, Patents and Science: AClarification of the Patent Clause of the U.S. Constitution, 18 Geo. Wash. L. Rev. 50, 54 (1948)(asserting the identity of the three phrases 'To promote the progress of useful arts,-- 'To promotethe progress of technology,-- and 'to accelerate technological progress--); Arthur H. Seidel, TheConstitution and a Standard of Patentability, 48 J. Pat Off. Soc'y 5, 10-11 & n.11 (1966)(looking at 1818 ed. of Samuel Johnson's dictionary which lists both qualitative and physicalmovement definitions of 'progress--; yet assuming without discussion that 'progress-- in theProgress Clause means the advancement of the human knowledge base and, therefore,concluding that 'progress-- merely requires 'some utility-- in each invention).
FN 65 See Voltaire, Candide [look at chapter 1, l.30; ch.6, l.28, & ch. 30, l.88]. See also e.g.,Adam Smith, The Theory of Moral Sentiments 236 (ed. D. D. Raphael & A. L. Macfie, LibertyFund paperback, Indianapolis 1984) ('The idea of that divine Being, whose benevolence andwisdom have, from all eternity, contrived and conducted the immense machine of the universe,so as at all times to produce the greatest possible quantity of happiness ..--).
FN 66 See, e.g., Progress and Its Discontents (eds. Gabriel A. Almond, Marvin Chodorow, &Roy Harvey Pearce, Univ. of Ca. Press 1982) (collecting essays on the Idea of Progress); HenryGeorge, Progress and Poverty _ an inquiry into the cause of industrial depressions and of increaseof want with increase of wealth _ The Remedy 541-43 (1899) (arguing that technologicaladvancement acerbates the problems caused by inequality in wealth, that increasing generalprosperity does not lead to the end of disparities in wealth, that wealth disparities lead to thedecline of civilizations, and suggesting the only solution is to abolish private property in land); Georges Sorel, The Illusions of Progress xlii-xliiii, xlv (trans. John Stanley & Charlotte Stanley1969) (presenting a Marxist account of 'progress-- as a theory supporting the dominance of thebourgeois, a 'charlatan dogma.--).
FN 67 See Robert P. Merges, As Many As Six Impossible Patents Before Breakfast: PropertyRights for Business Concepts and Patent System Reform, 14 Berkeley Tech. L. J. 577, 587 (1999)('Given a constitutional provision rooted in a blind faith in 'progress,' we cannot read inhistorically contingent limitations on patentable subject matter--; failing to cite or discussliterature arguing the contrary position). Edward Walterscheid has recently suggested a differentreading which gives Congress even more power: 'The Congress shall have Power *** Topromote the Progress of Science and useful Arts [including] by securing for limited times toAuthors and Inventors the exclusive Right to their respective Writings and Discoveries.-- EdwardC. Walterscheid, The Nature of the Intellectual Property Clause: A Study in HistoricalPerspective (Part I), 83 J. Patent & Tmk Of. Soc'y 763, 767-68 (2001). But see L Ray Patterson& Stanley W. Lindberg, The Nature of Copyright: A Law of Users' Rights 49 (1991) (assertingthat key value in Progress Clause is promoting learning by the public; second value is preservingthe public domain; benefitting the author is merely instrumental).
FN 68 Compare J. B. Bury, The Idea of Progress 192-94 (Dover Paperback 1955; reprint of1932 first ed.)(claiming that first clear and complete exposition of the idea of progress was L'an2440, an utopian fantasy first published anonymously in 1770 and suppressed in France) withRobert Nisbet, History of the Idea of Progress xi (Transaction paperback ed. 1994; originalpublication 1980) (insisting that the idea of progress goes back to the ancient Greeks andRomans; idea of progress can be traced in a continuous line of works starting with St.Augustine).
FN 69 See Nisbet, supra note 68, at 204 ('By the second half of the nineteenth century, theconcept of progress had become almost as sacred to Americans of all classes as any formalreligious precept.--).
FN 70 See Patent Act of 1790, 1 Stat. 109, § 1 ('term not exceeding fourteen Years--);Copyright Act of 1790, 1 Stat. 124, § 1 (14 year term with additional 14 years to be granted onlyon additional application).
FN 71 17 U.S.C. § 302(a) (copyright term for works by natural authors). The copyright termfor anonymous works, pseudonymous works, and works made for hire is 95 years from the yearof first publication or 120 years from creation, which ever occurs first. 17 U.S.C. § 302(c). Theterm for patents is shorter. See 35 U.S.C. §§ 154(a)(2), 154(b) (utility patents end 20 years fromdate of application with certain exemptions); 35 U.S.C. § 173 (design patents last for 14 yearsfrom the date of grant); 35 U.S.C. § 161 (plant patents have the same term as utility patents).
FN 72 See 17 U.S.C. § 1101. This statute was upheld against constitutional challenge. SeeU.S. v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. denied March 27, 2001, 2000 LEXIS2203.
FN 73 Burrow-Giles Lithographing Co. v. Sarony, 111 U.S. 53, 57-58 (1884)(holding thatphotograph of Oscar Wilde is copyrightable).
FN 74 See Burrow-Giles, 111 U.S. at 57-58 (citing 'Worcester--). Presumably, the Courtrelied upon Worcester's Dictionary. See id. Brief on the Part of the Defendant in Error 3('Author: He to whom anything owes its origin; originator; creator; maker; first cause. _Worcester's Dict.--).
FN 75 See Feist Publications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 358-59 (1991)('Originality [in factual compilations] requires only that the author make the selection orarrangement independently . .. and that it display some minimal level of creativity--; display amere 'creative spark--).
FN 76 Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) quoting S. Rep. 1979, USCCAN at2399. But see Malla Pollack, The Multiple Unconstitutionality of Business Method Patents:Common Sense, Congressional Consideration, and Constitutional History, 28 Rutgers ComputerTech. L. J. 61, at nn. 24- 29 and accompanying text (2002) (pointing out Supreme Court'sdistortion of original language of report).
FN 77 See, e.g., U.S. Pat. No. 6,323,390 for Transgenic Mouse Models for Human BladderCancer available at <http://www.uspto.gov/patft/index/html> (visited Dec. 20, 2001).
FN 78 See State Street Bank & Trust Co. v. Signature Financial Gp., 149 F.3d 1368, 1375-77(Fed. Cir. 1998) (declaring nonexistence of so-called business method exception to patentability).But see John I. Coulter, The Field of the Statutory Useful Arts, Part II, 34 J. of the Pat. OfficeSoc'y 487, 494-99 (1952) (arguing that business methods are not included in the 'useful arts--);Pollack, supra note 71 ,at section V.B (same); John R. Thomas, The Patenting of the LiberalProfessions, 40 Boston Col. L. Rev. 1139, 1169-75 (1999) (same).
FN 79 See 35 U.S.C. § 103(a).
FN 80 The D.C. Circuit, on the contrary, stated that '[t]he introductory language of thecopyright clause does not limit [the Congress's] power.-- Schnapper v. Foley, 667 F.2d 102, 112(D.C. Cir. 1981). This statement was merely dicta in Schnapper which approved copyright in abicentennial movie commissioned by the federal government. The D.C. Circuit, however,recently relied on this language (among other grounds) to uphold the Copyright Term ExtensionAct of 1998. See Eldred v. Ashcroft, 239 F.3d 372, 377 (D.C. Cir. 2001), cert. granted sub nom.Eldred v. Ashcroft (Feb. 19, 2002) (U.S. No. 01-618). But see Eldred, 255 F.3d 849, 854 (D.C.Cir. 2001) (Sentelle, J, dissenting from denial of rehearing en banc).
FN 81 I use these terms to clearly distinguish the rights allowed by the Constitution fromthose Congress has chosen to create by statute (patents and copyrights). See Pollack,Unconstitutional Incontestibility?, supra note 1, at 291 (introducing terminology and explainingits usefulness). The relevant Supreme Court cases are: New York Times Co. v. Tasini, 533 U.S.483, 121 S. Ct. 2381, 2401, 2403 n.20 (2001)(Stevens, J., dissenting); Campbell v. Acuff-RoseMusic, Inc., 510 U.S. 569, 574-76 (1994); Fogarty v. Fantasy, 510 U.S. 517, 526 (1994); FeistPublications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 349, 354 (1991); Bonito Boats, Inc. v.Thunder Craft Boats, Inc., 489 U.S. 141, 146-48, 150, 151, 157, 164-65, 167 (1989); Harper &Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558, 563, 580, 589 (1985); Sony Corp. v.Universal City Studios, 464 U.S. 417, 429 (1984); Kewanee Oil Co. v. Bicron Crop., 416 U.S.470, 480-81, 484 (1974); Goldstein v. Ca., 412 U.S. 546, 546, 555 (1973); Lee v. Runge, 404U.S. 887, 890-93 (1971); Graham v. John Deere Co., 383 U.S. 1, 5-6, 9, 10 (1966); GreatAtlantic & Pacific Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 155 (1951); AutomaticRadio Mfg. v. Hazeltine Research, Inc., 399 U.S. 827, 836-37, 839 (1950) (Douglas, J.,dissenting); Special Equip. Co. v. Coe, 324 U.S. 370, 746-48 (1945) (Douglas, J., dissenting);Fox Film Corp. v. Doyal, 286 U.S. 123, 127-28 (1932); Ware v. Winsor, 62 U.S. (21 How.) 322,327-29, 330 (1858); Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 654, 668 (1834); Shaw v. Cooper,32 U.S. (7 Pet.) 292, 310 (1833); Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 13, 19, 21 (1829).
FN 82 The Court did void the first federal trademark statute as, inter alia, not limited to'writings-- of 'authors,-- but that statute did not enlarge common law substantive rights. See TheTrade-Mark Cases, 100 U.S. (18 Otto) 82 (1879).
FN 83 J.E.M. Agriculture v. Pioneer Int'l, 122 S. Ct. 593 (2001), ignored this issue, see id. at596 (stating question presented is merely statutory construction), even though the constitutionalissue was raised in the Brief of Amicus Malla Pollack and Other Law Professors. See<http://jurist.law.pitt.edu/amicus/jem_v_pioneer.pdf > (visited Dec. 25, 2001). See also Ashcroft,255 F.3d 849, 854 (D.C. Cir. 2001) ('I do not accept that it is sufficient for Congress to merelyarticulate some hypothetical basis to justify the claimed exercise of an enumeratedpower.--)(Sentelle, J. dissenting from denial of rehearing en banc).
FN 84 Feist, 499 U.S. 340 (1991); Graham, 383 U.S. 1 (1966).
FN 85 Author/writing in Feist; inventor/discovery in Graham.
FN 86 Negative implication was a common eighteenth century method of legal drafting. See,e.g., Federalist Papers at 541 (Modern Library ed. 1937) ('The plan of the convention declaresthat the power of Congress . . . shall extend to certain enumerated cases. This specification ofparticulars evidently excludes all pretension to a general legislative authority.--) (No. 83); id. at196-97 (No. 32, discussing pregnant negatives in relation to the taxing power); id. at 559(danger of including an incomplete list of rights; No. 84); I William Winslow Crosskey, Politicsand the Constitution 486 (1953) ('[T]he enumerating of particular governmental powers in orderto express limitations upon them was a favorite device of the Federal Convention.--)(emphasis inoriginal). Congress, furthermore, only has 'the legislative powers-- which were 'herein granted.-- U.S. Art. I. sec. 1. In contrast, the President has 'the executive power,-- id. Art. II, sec. 1, andthe Supreme Court and lower federal courts have 'the judicial power of the United States,--id. Art. III, sec. 1. See Gary Lawson, Delegation and Original Meaning at text accompanyingnotes 35-37, Delegation and Original Meaning, forthcoming 88 Va. L. Rev. (2002), available as'Boston Univ. School of Law, Working Paper Series, Public Law & Legal Theory, WorkingPaper no. 01-12, at <http://www.bu.edu/law/facutly /papers> and<http://papers.ssrn.com/abstract=288433> (visited Nov. 17, 2001) (making this textual point).
FN 87 See Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457, 465 (1982). See alsoPaul J. Heald, The Vices of Originality, 1991 Sup. Ct. Rev. 143, 168-75 (arguing that Gibbonsshould prevent Congress from granting copyright in sweat works); Pollack, The Right to Know?,supra note 23, at 57-62 (supporting even stronger reading of Gibbons). But see Jane Ginsburg,'No Sweat?--: Copyright and Other Protection of Works of Information after Feist v. RuralTelephone, 92 Colum. L. Rev. 338, 369-74 (1992) (proposing narrower reading of Gibbons). Seealso Heald & Sherry, supra note 37 (arguing that the Clause contains four limiting principles:the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the PublicDomain Principle). The Necessary and Proper Clause does not undermine these limits becauseit cannot be used to 'adopt measures which are prohibited by the Constitution-- or 'pass laws forthe accomplishment of objects not intrusted to the government.-- M'Culloch v. Maryland, 17U.S. 316, 423 (1819). But see Eldred v. Ashcroft, 239 F.3d 372, 378 (D.C. Cir. 2001)(CopyrightTerm Extension Act of 1998 would be constitutional under the Necessary and Proper Clauseeven if, arguendo, it was beyond the scope of the Progress Clause), cert. granted (Feb. 19, 2002)(U.S. No. 01-618). The Treaty Power does not allow by pass of the Progress Clause limits. SeeHeald & Sherry, supra note 37, at 1181-1182. The First Amendment also trumps the TreatyPower. See Boos v. Barry, 485 U.S. 312 (1988) (refusing to allow counselor treaty to permitlimit First Amendment rights).
FN 88 Digital Millennium Copyright Act, P.L. 105-304 ; see also Brief of Prof. Julie Cohenet. al. in Universal City Studios v. Remeides (Argument sections II, III) available at<http://jurist.law.pitt.edu/amicus/universal_v_reimerdes_cohen.htm#II> (visited Aug. 4, 2001).But see Universal City Studios v. Corley, 2d Cir. No. 00-9185, Nov. 28, 2001 (aff'g subnom Universal Studios v. Remeides) (denying multiple constitutional challenges on the DMCAas applied to injunction against posting on the Internet hyperlinks to or text of DeCSS decryptionsoftware for decoding DVD movies).
FN 89 See, e.g., Yochai Benkler, Constitutional Bounds of Database Protection: the Role ofJudicial Review in the Creation and Definition of Private Rights in Information, 15 BerkeleyTech. L.J. 535 (2000) (discussing problems with proposed statutes); Pollack, The Right toKnow?, supra note 23, (same).
FN 90 Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir., 2001), pet. for cert. filed 70 U.S.L.W.3292 (Oct. 11, 2001) (No. 01-618).
FN 91 I have argued that the states should be limited by the Progress Clause. See Pollack,Unconstitutional Incontestibility?, supra note 1, at 300 -26. The Court has said otherwise. SeeKewanee Oil v. Bicron Corp., 416 U.S. 470, 478-79 (1974); Goldstein v. Ca., 412 U.S. 546, 560-61 (1983).
FN 92 Preemption cases routinely invoke the federal statutes as central, if not totallydeterminative. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989);Kewanee Oil Co. v. Bicron Co., 416 U.S. 470 (1974); Sears, Roebuck & Co. v. Stiffel Co., 376U.S. 225 (1964); Compco Corp. v. Day -Brite Lighting Inc., 376 U.S. 234 (1964). The Courtdid void the first federal trademark statute as, inter alia, not limited to 'writings-- of 'authors,--but that statute did not enlarge common law substantive rights. See The Trade-Mark Cases, 100U.S. (10 Otto) 82 (1879).
FN 93 The Court expressly declined to reach the Progress Clause's limitation on trade dressprotection of product configurations covered by expired utility patents. See TrafFix Devices, Inc.v. Marketing Displays, Inc., 121 S. Ct. 1255, 1263 (2001).
FN 94 See Condorcet, Sketch for a Historical Picture of the Progress of the Human Mind 33,38, 42, 73-76, 92-93, 99-106, 117-20, 136-40, 164, 171, 186-88 (trans. June Barraclough, intro.Stuart Hampshire; n.d. Noonday Press, New York); Turgot, On Universal History, in Turgot OnProgress, Sociology and Economics 61, 116-18 (trans. & ed. Ronald L. Meek, Cambridge Univ.Press 1973).
FN 95 See Condorcet, supra note 94, at 76; Turgot, supra note 94, at 117-18; see also JamesBeattie, The Theory of Language, in Dissertations Moral and Critical 231, 318 (FriedrichFrommann Verlag 1970 facsimile of 1783 ed.) ('Of the usefulness of Printing, as the means ofmultiplying books without end, of promoting the improvement of arts and sciences, and ofdiffusing knowledge through all the classes of mankind, I need not enlarge, as the thing is tooobvious to require illustration.--).
FN 96 U.S. Const. Art. 1, sec. 8, cl. 8; 17 U.S.C. § 102(a)('fixed in any tangible medium--).
FN 97 Condorcet, supra note 94, at 173.
FN 98 See id. at 182-84.
FN 99 See Declaration of Independence. Garry Wills reads Jefferson's words as invoking themoral sense philosophy of Francis Hutchinson in which the 'pursuit of happiness-- involved constant attention to what was good for human society. See Garry Wills, Inventing America:Jefferson's Declaration of Independence 250-55 (1978); see also John Adams, Thoughts onGovernment: Applicable to the Present State of the American Colonies, in 4 Charles FrancisAdams, The Works of John Adams, Second President of the United States with A Life of theAuthor 189, 193 (1851) ('[T]he happiness of society is the end of government--; 'the happinessof man, as well as his dignity, consists in virtue.--). But see Gordon S. Wood, Heroics, in TheNew York Review 16-18 (April 2, 1981) (disputing thesis that the Declaration of Independenceinvokes Hutchinson specifically, without disputing the Declaration's foundation in moralsentiment theory). See also Forrest McDonald, Novus Ordo Seclorum 53-55 (1985) (listingseveral different 18th century meaning of 'equal,-- most of which allowed slavery).
FN 100 See Gordon S. Wood, The Creation of the American Republic 1776-1787 at 72, 120,426, 570 (1998 paperback ed.). Many state constitutions mentioned public education. See Pa.Cons. (1776) Sec 44; N. C. Cons. (1776) LXI; Ga. Cons. (1777) Art. LIV; Mass. Cons. (1780),Chap. V, Sec. II; N. H. Cons. (1784). See also Adams, supra note 99 at 199 ('Laws for theliberal education of youth, especially of the lower class of people, are so extremely wise anduseful, that to a humane and generous mind, no expense for this purpose would be thoughtextravagant.--); Noah Webster, An Examination into the Leading Principles of the FederalConstitution, by a Citizen of America, in Pamphlets on the Constitution of the United States,Published During Its Discussion by the People 1787-1788, at 25, 65 (ed. Paul Leicester Ford;1888, Da Capo Press reprint ed. 1968) ('[L]iberty stands on the immovable basis of a generaldistribution of property and diffusion of knowledge.--).
FN 101 See Akil Reed Amar, The Bill of Rights xii (1998) (arguing that Bill of Rightsinvolved 'protection of various intermediate associations _ church, militia, and jury _ designed tocreate an educated and virtuous electorate--).
FN 102 Letter from James Madison to W.T. Berry (Aug. 4, 1822), in James Madison, TheComplete Madison 337 (Saul K. Padover ed. 1953). A 'gentleman from Rhode Island-- wasquoted in the Pennsylvania Gazette for similar sentiments:
Tyrants are the only enemies of literature, and ignorance and slavery go hand in hand. Nothing but the general diffusion of knowledge will ever lead us to adopt or supportproper forms of government- for the weak and absurd constitutions are, like slavery, theoffspring of ignorance. Nor does learning benefit government alone; agriculture, thebasis of our national wealth and manufactories, owe all their modern improvements to it.
Letter from a gentleman of Rhode Island, June 7, 1787, printed in Pennsylvania Gazette, June 20,1787, Accessible Archives Item no. 73991) (emphasis added).
FN 103 See The Federalist Papers (no. 38, James Madison); see also id. (No. 84, AlexanderHamilton) (--For why declare that things shall not be done which there is no power to do? Why,for instance, should it be said that the liberty of the press shall not be restrained, when no poweris given by which restrictions may be imposed?--).
FN 104 Even without this gloss on original language, many scholars have placeddissemination at the center of copyright theory. See, e.g., Patterson & Lindberg, supra note 67. As Eileen Kane has suggested in conversation, dissemination's centrality is also supported by thedisclosure requirement for patents, 35 U.S.C. § 112.
FN 105 See Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism:The Madisonian Framework and Its Legacy 3 (paperback ed. 1994). Furthermore, in the proto-United States '[t]he rich and the poor [were] not so far removed from each other as they [were]in Europe.-- J. Hector St. John De Crevecoeur, Letters from an American Farmer 41(ed SusanManning; Oxford Univ. Press paperback 1997). The Framers were proud of this relative equalityand implied that they intended to preserve it. See Webster, supra note 100, at 59 ('A generaland tolerably equal distribution of landed property is the whole basis of national freedom: ...--.)(emphasis in original); see also 2 Henry Home, Lord Kames, Sketches of the History of Man 326(Georg Olms Verlagsbuchhandlung Hildesheim 1968 facsimile of 2d ed., 1778) ('No causehitherto mentioned hath such influence in depressing patriotism, as inequality of rank and richesin an opulent monarchy.--). See also McDonald, supra note 99, at 87-93 (discussing theideological tie between republicanism and relatively equal property in early period ofrevolution); Gordon S. Wood, The Radicalism of the American Revolution 170-72 (Vintagepaperback ed. 1993) (asserting that white, male residents of North American colonies valued theabsence of extreme property disparities).
FN 106 See Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession,51 Ohio St. L.J. 517, 529 (1990) (relying on Madison's comment in Federalist). But seeinfra notes 158-60 and accompanying text (discounting importance of Federalist squib). Thenatural rights claim can also be supported by the Committee Report which led the ContinentalCongress to suggest the states pass copyright legislation, see infra note 144.
FN 107 Francis Hutchinson seems to have had major influence in colonial North Americaboth through his writings and through influential educator-ministers who followed hisphilosophy, such as John Witherspoon in New Jersey and Francis Allison in Pennsylvania. SeeDavid Fate Norton, Francis Hutchinson in America, in 94 Studies on Voltaire and the EighteenthCentury 1547- 68 (ed. Theodore Besterman 1976) (Transactions of the Fourth InternationalCongress on the Enlightenment, Voltaire Foundation at the Taylor Institution, Oxford); see alsoWills, supra note 99; Wood, supra note 99.
FN 108 John Witherspoon may have been 'the most influential religious and educationalleader in Revolutionary America.-- Thomas Miller, Preface, in John Witherspoon, The SelectedWritings of John Witherspoon vii, vii (1990). Witherspoon was professor and President of theCollege of New Jersey, which became Princeton University. James Madison was one of hisfamous students. Witherspoon was the only clergyman to sign the Declaration of Independence,a member of the Continental Congress, founded the American Presbyterian Church, and stumpedin favor of the 1787 federal Constitution. See id. at vii; Miller, Introduction, in JohnWitherspoon, The Selected Writings of John Witherspoon 1, 27-31 (1990).
FN 109 John Witherspoon taught that 'the public-- has certain rights over every person insociety. Society may demand that each person be useful, and has 'a right to the discovery ofuseful inventions, provided an adequate price be paid to the discoverer.-- John Witherspoon,Lectures on Moral Philosophy, in The Selected Writings of John Witherspoon 152, 228 (ThomasMiller ed. 1990). Garry Wills interprets similarly the following language in Hutchinson. See Wills, supra note 99:
A like right we may justly assert to mankind as a system, and to every society of men,even before civil government, to compel any person who has fallen upon any fortunateinvention, of great necessity or use for the preservation of life or for a great increase ofhuman happiness, to divulge it upon reasonable terms.
2 Francis Hutchinson, A System of Moral Philosophy 109 (1755).
As a man cannot hoard useful ideas, he cannot destroy his own property if it is still usefulto the community.
Francis Hutchinson, A Short Introduction to Moral Philosophy 246-47 (1747).
FN 110 See The Federalist (No. 43, Madison, quoted infra note 158).
FN 111 Using a completely different route, Margaret Chon reaches the same definition for the'post-modern progress-- she wishes Congress to promote with intellectual property grants. SeeChon, supra note 64 at 146 ('The project of the patent and copyright clause must be understoodas access to knowledge, which is a type of property and civil right.--). See also Carol M. Rose,Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age29, 31(Nov. 2001 Working Paper on file with author) (using Roman law categories of respublicae and res divini juris to explain importance of sharing intellectual works).
FN 112 U.S. Const. Preamble.
FN 113 Court made doctrine is imposed on 'We, the people.-- It also tends to oscillate. I,therefore, hesitate to rely on it here. One major change, however, seems both irrevokable andstrongly supports my thesis. The Incorporation of most of the Bill of Rights against the Statesrecognizes that these government units have become large enough to become oppressive. Incorporation gives more power to the people. See Michael J. Perry, The Constitution in theCourts: Law or Politics? 140 (Oxford Univ Press 1994) (asserting that incorporation 'is a fixedfeature of the American constitutional law: indeed, it has become a constitutive feature ofmodern American government. . . It is not surprising, therefore, that today few persons areinterested in challenging the application to the states of those Bill of Rights provisions on whichit has relied in striking down state action.--). But see Raoul Berger, Government by Judiciary: TheTransformation of the Fourteenth Amendment 155-198 (2d ed. 1997) (attacking allegations thatCongress intended to incorporate any of the Bill of Rights against the states when drafting theFourteenth Amendment).
FN 114 Part of this protection is protecting the intermediate protector, the State. Under thisreading, the Eleventh Amendment might be read to support my thesis. It protects the financialviability of States.
FN 115 See, e.g., James A. Henretta, The Evolution of American Society, 1700-1815: AnInterdisciplinary Study 221 (1973; paperback ed. D. C. Heath & Co.) (explaining thatideologically disparate political parties were institutions for enabling larger percentage ofpopulation to have some political power).
FN 116 The original Constitution did not seat new members until the following December. U.S. Const. Art. 1, sec. 4, cl. 2. The interaction of this provision with the date of the nationalelection and Congressional procedures left a long period of lame-duck control. If the ElectoralCollege threw the Presidential or Vice Presidential choice into the Congress, the lame-duckCongress decided on the next executive. See Senate Report 72-26 (1st session) reprinted in 75Cong. Rec. 1372-73 (Senate, Jan. 6, 1932). The latter disagreements between the House and theSenate were on the exact dates various officials took office, not on the underlying desire toenhance government responsiveness to general elections. See 75 Cong. Rec. 5026-27 (House,March 1, 1932, including Conf. Report, H. Rep. 72-633).
FN 117 U.S. Const. Preamble.
FN 118 Functional or structural analysis are variations of these stances. For example, Alden v.Maine, 527 US 706, 712-26 (1999), posits a non-textual limit on federal power based on theratifying generation's alleged assumptions about sovereign entities, i.e. a variation of approaches(b) and (c).
FN 119 See, e.g., McGautha v. Ca., 402 U.S. 183, 202 (1971) (due process limits on juryinstructions 'reflect the evolving standards of decency that mark the progress of a maturingsociety.--) (internal quotation marks and citation omitted); id. at 241 (Douglas, J., dissenting)('the wooden position of the Court, reflected in today's decision, cannot be reconciled with theevolving gloss of civilized standards-- which the Supreme Court has long read into the'procedural due process safeguards of the Bill of Rights.--); Duncan v. La., 391 U.S. 145, 183(1968) (Harlan, J., dissenting) ('[D]ue process is an evolving concept-- requiring 'that oldprinciples [be] subject[ed] to re-evaluation in light of later experience[.]--).
FN 120 As usual, some exceptions exist. Hopefully, the history of the Statute of Anne shouldlead us to refuse to use copyright to empower censorship; a choice also compelled by the modernview of the First Amendment's speech and press clauses. The history of the Statute ofMonopolies counsels us to refuse to allow government use of copyright or patent for indirectfunding of government functions. See Malla Pollack, Purveyance and Power, supra note 37 at116-140 (making this argument while admitting that the courts have not taken this position).
FN 121 '[N]othing is more properly a man's own than the fruit of his study-- according to a1783 report joined by James Madison. 24 Journals of the Continental Congress 326 (Friday, May2, 1783), available at <http://memory.loc.gov/ammem/amlaw/lawhome.html> (visited Aug. 4,2001). Thomas Jefferson, however, wrote:
If nature has made any one thing less susceptible than all others of exclusive property, itis the action of the thinking power called an idea .... Its peculiar character, too, is that noone possesses the less, because every other possesses the whole of it. He who receives anidea from me, receives instruction himself without lessening mine; as he who lights his
taper at mine, receives light without darkening me .... Inventions then cannot, in nature,be a subject of property. Society may give an exclusive right to the profits arising fromthem, as an encouragement to men to pursue ideas, which may produce utility.
Letter to Isaac McPherson, Aug. 1813, VI Writings of Thomas Jefferson, at 180- 81 (Washingtoned.) (cited in Graham v. John Deere Co., 383 U.S. 1, 8-9 n.2 (1966)).
FN 122 See Alden, 527 U.S. at 734.
FN 123 See 17 U.S.C. § 102(a).
FN 124 See, e.g. John Milton, Paradise Lost, in John Milton, The Poetical Works of JohnMilton 1, 287 (ed. Helen Darbishire, Oxford Univ. Press 1961 reprint of 1958 ed.) (Book VIII, l.317; 'Author of all this thou seest.--). Milton describes Satan as 'author-- of his children, Sin andDeath, and as 'author and prime architect-- of the bridge Sin and Death build between hell andearth. Id. at 219, 222 (Book X, ll. 236, 356). See also Jonathan Boucher, A View of the Causesand Consequences of the American Revolution; in Thirteen Disourses, Preached in NorthAmerica Between the Years 1763 and 1755; with an Historical Preface 485 (Russell & Russell1967 ed. reproduced from original ed. of 1797) (referring to Satan as the 'first author andfounder of rebellion.--); Thomas Burnet, The Sacred Theory of the Earth 26 (Centaur Press 1965reprint of 2d ed. 1691) (referring to God as the 'author-- of both human 'Reason-- and the 'Sacredwritings.--) . But see E.C. Walterscheid, The Nature of the Intellectual Property Clause: A Studyin Historical Perspective ? (forthcoming Spring 2002) (arguing that 'writings-- in Clause bearsnarrow meaning because it invokes narrower of meanings for 'author-- in Samuel Johnson's 1755dictionary, 'the first writer of anything; a writer in general--) (short draft on file with author).
FN 125 See, e.g., Francis Bacon, The Advancement of Learning 9 (ed. intro. Michael Kiernan;Oxford Univ. Press 2000) ('[L]et no man . . . maintaine, that a man can search too farre, or beetoo well studied in the Booke of Gods word, or in the Booke of Gods workes.--).
FN 126 But see Leonard W. Levy, Original Intent and the Framers' Constitution 179 (1988)(asserting that Framers were not careful draftsmen).
FN 127 See John Witherspoon, Lectures on Eloquence, in Selected Writings of JohnWitherspoon 123, 245, 272, 291 (Thomas Miller ed. 1990) (insisting on brevity and clarity). 'The first rule for promoting the strength of a sentence is, to prune it of all redundant words andmembers.-- Lindley Murray, English Grammar 200 (Scolar Press Ltd. facsimile of 1795 ed.)(emphasis in original); see also id. at 191 ('All unmeaning words, introduced merely to round theperiod, or fill up the melody, are great blemishes in writing. They are childish and puerileornaments, but which a sentence always loses more in point of weight, than it can gain by suchadditions to its sound.--). Murray's grammar was 'without doubt the most popular and frequentlyreprinted grammar of English during the nineteenth century-- and very popular in the UnitedStates. Id. at n.p. (editor's note before facsimile of original title page).
FN 128 See, e.g, TRW, Inc. v. Andrews, 122 S. Ct. 441, 449 (2001) ('It is a cardinal principleof statutory construction that a statute ought, upon the whole, to be so construed, that, if it can beprevented, no clause, sentence, or word shall be superfluous, void, or insignificant.--)(internalquotation marks and citation omitted); Platt v. Union Pacific RR, 99 U.S. (9 Otto) 48, 58 (1878)('[A] legislature is assumed to have used no superfluous words.--). But see Chickasaw Nation v.U.S., (U.S. No. 00-507 Nov. 27, 2001), slip. op. at 4 (admitting that Court's interpretation ofstatute renders some words mere surplusage, but asserting that 'no other reasonable reading ofthe statute-- is possible).
FN 129 See Bd. of Trustees v. Garrett, 531 U.S. 356, 363 (2000) (admitting that Court's caselaw oversteps the language of the Eleventh Amendment); Maryland v. Craig, 497 U.S. 836, 870(1990)(Scalia, J. dissenting) (asserting that majority opinion 'gives the defendant virtuallyeverything the Confrontation Clause guarantees (everything, that is, except confrontation).--).
FN 130 See Hans v. La., 134 U.S. 1, 15 (1890)(refusing to follow literal reading of theEleventh Amendment because allowing a citizen to sue his own state in federal court is 'aconstruction never imagined or dreamed of-- when the Eleventh Amendment was adopted orwhen Constitution was established) cited Garrett, 531 U.S. at 363; Craig, 497 U.S. at845(discussing 'central concern of the Confrontation Clause-- in light of historical practices itrejected.).
FN 131 But see Birnhack, supra note 64at 16-17 (arguing that 'copyright law is bestunderstood in terms of intellectual progress, while patent law is best understood in terms ofmaterial progress.--).
FN 132 See Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 Univ. ofChicago L. Rev. 101, 144-45 (2001).
FN 133 See Noah Webster, American Dictionary of the English Language at unnumberedpage headed 'ARR - ARS - ART-- (1828; facsimile reprint Foundation for American ChristianEducation 10th ed. 1998) (stating within second definition of 'art-- that '[a]rts are divided intouseful or mechanic and liberal or polite.--). See also Coulter, supra note 78 at 494-99 (1952);Pollack, supra note 76, at 86-119; Thomas, supra note 78, at 1169-75.
FN 134 See Webster, supra note 133, at unnumbered page headed SCI-SCI-SLA ('SCIENCE,n. ... (1) In a general sense .. knowledge... (2) In philosophy, a collection of the general principlesor leading truths relating to any subject. . . . (3) Art derived from precepts or built on principles. .. (4) Any art or species of knowledge. . . . (5) One of the seven liberal branches of knowledge,viz. grammar, logic, rhetoric, arithmetic, geometry, astronomy and music.--).
FN 135 21 James I ch. 3
FN 136 See, e.g., Graham v. John Deere Co., 383 U.S. 1, 5 (1966).
FN 137 See Charles Howard McIlwain, Constitutionalism Ancient and Modern 138(1940)(characterizing Statute as first win by Parliament in its fight against absolute monarchy). But see Chris R. Kyle, 'But a New Button to an Old Coat': The Enactment of the Statute ofMonopolies, 21 James I cap. 3, 19 J. of Legal Hist. 203 (1998)(arguing that Statute was enactedwith James I's cooperation).
FN 138 'Monopoly-- in the 1624 statute is a vague pejorative term. See Pollack, Purveyanceand Power, supra note 40, at 40 & n.221.
FN 139 21 James I ch. 3 §§ V (existing grants), VI (future grants).
FN 140 21 James I ch. 3 § I ('upon Misinformations, and untrue Pretences of publick Good--persons have obtained illegal grants 'to the great Grievance and Inconvenience of your Majesty'sSubjects.--).
FN 141 8 Anne ch. 19 (1710).
FN 142 See, e.g., Paul Goldstein, Copyright § 1.13.1 at 1:27 (2d ed. 2000).
FN 143 8 Anne ch. 19 (1710).
FN 144
On the report of a committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izardand Mr. [James] Madison, to whom were referred sundry papers and memorials on thesubject of literary property:
The committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izard and Mr. [James]Madison, to whom were referred sundry papers and memorials from different persons onthe subject of literary property, being persuaded that nothing is more properly a man'sown than the fruit of his study, and that the protection and security of literary propertywould greatly tend to encourage genius, to promote useful discoveries and to the generalextension of arts and commerce, beg leave to submit the following report:
Resolved, That it be recommended to the several states, to secure to the authors orpublishers of any new books not hitherto printed, being citizens of the United States, andto their heir or assigns executors, administrators and assigns, the copyright of
such books for a certain time, not less than fourteen years from the first publication; andto secure to the said authors, if they shall survive the term first mentioned, and to theirheirs or assigns executors, administrators and assigns, the copyright of such books foranother term of time not less than fourteen years, such copy or exclusive right of printing,publishing and vending the same, to be secured to the original authors, or publishers, ortheir assigns their executors, administrators and assigns, by such laws and underrestrictions as to the several states may seem proper.
24 Journals of the Continental Congress 326-27 (Friday, May 2, 1783), available at <http://memory.loc.gov/ammem/amlaw/lawhome.html> (visited Aug. 4, 2001). For full text ofall copyright statutes passed by the states during the Articles of Confederation period, seeCopyright Office, Library of Congress, Copyright Enactments: Laws Passed in the United StatesSince 1783 Relating to Copyright: Copyright Office Bulletin No. 3 (revised) 1-21 (1963); seealso id. at 140 (text of 1672 enactment of the Massachusetts Bay Colony forbidding any printerfrom printing more copies of any book than agreed to by the 'outer of the said coppie orcoppies.--).
FN 145 An Act for the Purpose of Securing to Authors the Exclusive Right and Benefit ofPublishing Their Literary Productions, for Twenty-One Years (enacted March 17, 1783) inCopyright Office Bulletin No. 3, supra note 144, at 4-5. The New Hampshire statute of Nov. 7,1783 opens with almost identical language:
As the improvement of knowledge, the progress of civilization, and the advancement ofhuman happiness, greatly depend on the efforts of ingenious persons in the various artsand sciences ...
An Act for the Encouragement of Literature and Genius, and for securing to authors theexclusive right and benefit of publishing their literary productions, for twenty years, in CopyrightOffice Bulletin No. 3, supra note 144, at 8. The Rhode Island statute enacted in the Decembersession of 1783 opens:
Whereas the improvement of knowledge, the progress of civilization, the public weal ofthe community, and the advancement of human happiness, greatly depend on the effortsof learned and ingenious persons, in the various arts and sciences ...--
An Act for the Purpose of securing to authors the exclusive right and benefit of publishing theirliterary productions for twenty-one years, in Copyright Office Bulletin No. 3, supra note 144, at9.
FN 146 Settling a new continent necessarily involved discovering new knowledge. 'Perhapsnever before in a civilized country had physical and intellectual expansion been so clearlysynonymous-- as in colonial North America. Daniel J. Boorstein, The Americans: The ColonialExperience 159 (1958; Vintage Paperback ed).
FN 147 Mass. Const. 1780, Ch. 5, sec. 2, reprinted in 3 The Founders' Constitution 39 (PhilipB. Kurland & Ralph Lerner eds., 1987), also reprinted in 5 Sources and Documents of UnitedStates Constitutions 92, 106 (ed. & annotated William F. Swindler 1975). The 1780Massachusetts Constitution is based on a draft composed by John Adams. See Louis AdamsFrothingham, A Brief History of the Constitution and Government of Massachusetts with aChapter on Legislative Procedure 25-27 (1916). This subsection appears to have been draftedcompletely by John Adams and enacted as suggested without negative comment. See 4 CharlesFrancis Adams, The Works of John Adams, Second President of the United States with A Life ofthe Author 259 n.1 at 261 (1851) ('I was somewhat apprehensive that criticism and objectionswould be made to the section, and particularly that the 'natural history' and the 'good humor'would be stricken out; but the whole was received very kindly, and passed the conventionunanimously, without amendment.--) (allegedly quoting an 1809 statement by John Adams).
FN 148 Encouragement of Literature etc
Knowledge and learning, generally diffused through a community, being essentialto the preservation of a free government; and spreading the opportunities and advantagesof education through the various parts of the country, being highly conductive to promotethis end; it shall be the duty of this government to cherish the interest of literature and thesciences, and all seminaries and public schools, to encourage the promotion ofagriculture, arts, sciences, commerce, trades, manufactures and natural history of thecountry .....
New Hampshire Constitution of 1784, reprinted in Swinder, supra note 147, at 342, 355. WhenNew Hampshire passed its first copyright statute, it was governed by the Constitution of 1776_ avery brief document passed by the colonial legislature after the 'sudden and abrupt departure-- ofthe royal governor and many of his council. 6 Swindler, supra note 147, at 342. A new stateconstitution was drafted in 1779 and presented to the voters, but it was rejected at the polls. Thesuggested 1779 New Hampshire Constitution did not contain any mention of knowledge orlearning. See 11 Town Papers xxx, 741-45 (ed. Issac W. Hammond 1882).
FN 149 Rhode Island remained governed by the royal charter creating the colony until 1842. See 8 Swinder, supra note 147, at 340 (editorial note); id. at 363 (reprinting Charter of RhodeIsland and Providence Plantations issued 1663 by Charles II of England). The 1842 Rhode IslandConstitution recites diffusion of knowledge as the basis for requiring public schools. R.I. Const.Article XII sec. 1 reprinted in 8 Swinder, supra note 141, at 386, 395 ('The diffusion ofknowledge, as well as of virtue, among the people being essential to the preservation of theirrights and liberties, it shall be the duty of the general assembly to promote public schools, and toadopt all means which they may deem necessary and proper to secure to the people theadvantages and opportunities of education.--).
FN 150 Connecticut and New York mention 'service to mankind.-- Copyright Office BulletinNo. 3, supra note 144, at 1, 19. Massachusetts refers to the 'benefit of mankind.-- Id. at 4. NewJersey invokes the 'general good of mankind.-- Id. at 6.
FN 151 Connecticut, South Carolina, North Carolina, Georgia, and New York. See id. at 2-3, 13, 16, 18, 20. Massachusetts required two copies be given free to the library of the Universityof Cambridge. See id. at 4-5.
FN 152 James Madison, Notes on Debates in the Federal Convention of 1787, at 480 (entry forAugust 18, 1787) (1966) (Madison's suggestion).
FN 153 Id. (Madison's suggestion).
FN 154 Id. (Pinkney's suggestion).
FN 155 Id. (Pinkney's suggestion). Pinkney also suggested 'To establish seminaries for thepromotion of literature and the arts & sciences-- and 'To establish public institutions, rewardsand immunities for the promotion of agriculture, trades, and manufactures.-- Id.
FN 156 Id. at 580-81.
FN 157 See Pollack, supra note 40, at 99-116 (discussing mentions of the Progress Clauseduring the ratification process); Walterscheid, supra note 67, at 773-74 (same).
FN 158
THE FOURTH class comprises the following miscellaneous powers:1. A power ``topromote the progress of science and useful arts, by securing, for a limited time, to authorsand inventors, the exclusive right to their respective writings and discoveries.-- 'Theutility of this power will scarcely be questioned. The copyright of authors has beensolemnly adjudged, in Great Britain, to be a right of common law. The right to usefulinventions seems with equal reason to belong to the inventors. The public good fullycoincides in both cases with the claims of individuals. The States cannot separately makeeffectual provisions for either of the cases, and most of them have anticipated thedecision of this point, by laws passed at the instance of Congress.
The Federalist Papers 279 (Modern Library 1937 ed.) (No. 43, Madison), available at< http://lcweb2.loc.gov/const/mdbquery.html > (visited Aug. 4, 2001).
FN 159 Madison implied that inventors had common law rights in their inventions, but theeighteenth century crown had no obligation to issue any specific patent of invention. See, e.g.,Edward Armitage, Two Hundred Years of English Patent Law, in 200 Years of English andAmerican Patent, Trademark, and Copyright Law 3, 4 (1976). During the reign of Elizabeth I,patents were refused for Lee's stocking frame and Harrington's water closet. See E. WyndhamHulme, The History of the Patent System Under the Prerogative and at Common Law. A Sequel.,16 L.Q. Rev. 44, 53 (1900). On copyright, English law had recently changed, perhaps withoutMadison's knowledge. See John F. Whicher, The Ghost of Donaldson v. Beckett: An Inquiryinto the Constitutional Distribution of Powers over the Law of Literary Property in the UnitedStates, _ Part I, 9 Bull. Copyright Soc'y U.S.A. 102, 133 (1961) (asserting that Madison wasprobably relying on an outdated version of Blackstone).
FN 160 See Andrew J. Reck, Moral Philosophy and the Framing of the Constitution,reprinted in Liberty, Property, and the Foundation of the American Constitution 23, 36 (EllenFrankel Paul and Howard Dickman eds. 1989) (authors of the Federalist Papers were'preoccupied with the immediate task of elucidating and defending the provisions of theConstitution against the arguments of the Antifederalists.--).
FN 161 Some interpreters claim special authority for constitutional readings endorsed by thefirst Congress. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 980 (1991) ('The actions of theFirst Congress, which are of course persuasive evidence of what the Constitution means . . . .--)(Scalia, J, announcing decision of the Court in section of op. joined only by Rehnquist, C.J.)(citation string omitted). But see id.. at 1014 (Kennedy, J., dissenting, joined by O'Connor, J. &Souter, J.) ('[T]he Court's jurisprudence concerning the scope of the prohibition against crueland unusual punishments has long understood the limitations of a purely historical analysis.--)(citation string omitted). Leaving aside the weight of such evidence, I have not discovered anyearly congressional discussion on this specific point, let alone any group-endorsed action. Atmost, we have records demonstrating a reluctance to read the Progress Clause broadly. Whenone would-be explorer requested funding for an expedition to Baffin's Bay, Mr. Tucker'expressed a doubt whether the Legislature has power by the Constitution to go further inawarding the inventors of useful machines, or discoveries in sciences, than merely to secure tothem for a time the right of making, publishing and vending them.-- 1 Annals of Congress 180(April 20, 1789) <http://memory.loc.gov> (visited May 3, 2001); see also IV DocumentaryHistory of the First Federal Congress of the United States of America, Legislative Histories at530-53 (L. G. DePauw et. al. eds. 1977) (Comm. Rept. stating that the request 'involves anenquiry into the Constitutional powers of Congress--). Some persons were concerned that'inventor-- and 'discovery-- might not include importers of new technology, even thou suchpersons were allowed utility patents in Great Britain. See Pollack, supra note 76, at notes 71-78& accompanying text.
FN 162 But see Heath W. Hoglund, Patent Fee Diversion Crosses Constitutional Boundary,83 J. Pat. & Tmk. Soc'y 725, 725 (2001)(arguing that 'Congress' power must be exercised in away that promotes science and technological inventions,-- without noticing omission of'progress-- from the constitutional command).
FN 163 See Bacon, supra note 125. But see Samuel Johnson, The Plan of a Dictionary 2(Scalar Press Ltd. 1970 facsimile of 1747 ed.) (Desiring his dictionary 'to promote theimprovement of [his] native tongue.--); Jonathan Swift, The Bickerstaff Papers, in JonathanSwift, Gulliver's Travels and Other Writings 454, 467 (ed. and intro. Miriam Kosh Starkman,Bantam paperback 1962) ('But it seems this gentleman, instead of encouraging the progress ofhis own art, is pleased to ...--).
FN 164 See, e.g., 2 Bernard Mandeville, The Fable of the Bees: or, Private Vices, PublickBenefits 43 (Clarendon Press, Oxford, Eng. 1924) ('I am convinced that the Money of most rich men is laid out with the social Design of promoting Arts and Sciences ...--); id. at 366 ('[O]urpride, sloth, sensuality and fickleness are the great patrons that promote all Arts and Sciences...--).
FN 165 See Announcements concerning the Pennsylvania Society for Encouragement ofManufacture and the Useful Arts, 2 The American Museum, or Repository of Ancient andModern Fugitive Pieces at 167.
FN 166 24 Journals of the Continental Congress 326-27 (Friday, May 2, 1783), available at <http://memory.loc.gov/ammem/amlaw/lawhome.html> (visited Aug. 4, 2001) (quoted in fullsupra note 138).
FN 167 See also Milton, Paradise Regained, in John Milton, The Poetical Works of JohnMilton 283, 290 (ed. Helen Darbishire, Oxford Univ. Press 1961 reprint of 1958 ed.) (Book I, ll.204-06, self-description by Jesus, 'my self I thought/Born to that end, born to promote all truth,/All righteous things: ...--).
FN 168 For example, Congress grants music composers more leverage over publicperformances than it grants to recorded vocalists. See 17 U.S. C. § 106(5), (6). See supra note42 and accompanying text (discussing this circularity in reference to the CTEA); see also Cohen,Copyright and the Perfect Curve, supra note 17, at 1800 (arguing that 'the assumption that'progress' is qualitatively independent of the underlying entitlement structure is wrong--;protection choices influence types of works created.). I would object to the economic reading onseveral other grounds. I do not accept Kaldor-Hicks optimality as a suitable social goal. I doubtthat either most Framers or their generation would have adopted Kaldor-Hicks. The federalgovernment, for example, would have been much less expensive to run with an unicamerallegislature. However, one version of 'progress-- theory is held by economic rationalists whoconflate social improvement with increase in material prosperity and generally assume that suchmaterial progress requires a modern, liberal market. See David A. Westbrook, Law Through War,48 Buffalo L. Rev. 299, 311-313 (2000).
FN 169 See infra Section V.B.
FN 170 'Clearness is secured by using the words (nouns and verbs alike) that are current andordinary.-- Aristotle, Rhetoric, in Rhetoric and Poetics 1, 167 (Bekker 1405; Book III, Chapter1)(Modern Library ed. 1954). See also Witherspoon, supra note 127, at 245, 272, 291 (insistingon clarity as well as brevity); Murray, supra, note 127, at 188 ('Hardly in the language are theretwo words that convey precisely the same idea;-- 'to be full and easy, and at the same time correctand exact in the choice of every word, is no doubt one of the highest and most difficultattainments in writing.--); id. at 191 ('Whatever leaves the mind in any sort of suspense as to themeaning, ought to be avoided with great care.--).
FN 171 Thomas Reid, a member of the Scottish Enlightenment with strong influence oncolonial North America, uses 'improvement-- for Idea of Progress quality increase. See ThomasRead, Inquiry and Essays 31 (chp. 4, sec. 2) (eds. Keith Lehrer & Ronald E. Beanblossom Bobbs-Merrill paperback ed.) (showing use of 'improvement--; '[o]ne of the noblest purposes of soundundoubtedly is language, without which mankind would hardly be able to attain any degree ofimprovement above the brutes.--); id. at 32 ( 'But the origin of language deserves to be morecarefully enquired into, not only as this inquiry may be of importance for the improvement oflanguage, but as is related to the present subject, and tends to lay open some of the first principlesof human nature.--); id. at 33 ('These artificial signs [words with merely conventionaldenotations] must multiply with the arts of life, and the Improvements of knowledge.--); See Wills, supra note 99, at 181-89 (discussing importance of Reid's philosophy, especially itsreliance on common sense).
FN 172 Defoe's Robinson Crusoe repeatedly uses forms of 'perfection' and 'improvement' inthis way. See Daniel Defoe, The Life and Strange Adventures of Robinson Crusoe, of York,Mariner 123, 145 (several examples), 154 (Oxford World Classics 1999). Defoe wrote in carefulimitation of the language the characters would actually have used. See J. M. Coetzee,Introduction, in id. v, vii. Robinson Crusoe appeared in 1719 and sold very well. See id. at v. Crusoe was a man of 'the upper station of Low Life,-- that is a person of the 'middle state.-- Hehad a 'house education-- and what ever further instruction was available at a 'country free-school.-- Defoe, supra, at 5-6. Jonathan Swift has multiple such uses of variations on'perfection' and 'improvement.' See Jonathan Swift, Gulliver's Travels, in Gulliver's Travelsand Other Writings 31, 43, 110, 134, 137, 168, 179, 181, 184, 262, 272 (ed and introducedMiriam Kosh Starkman, Bantam paperback 1962); Swift, Tale of A Tub, in supra, 278 at 278,282, 331.
FN 173 See Swift, The Bickerstaff Papers, supra note 163, at 466.
FN 174 'Advancement-- is not an acceptable definition because (i) the Framers chose not touse it, despite this suggestion by Pinkney, and (ii) it has the same clarity problems as 'progress.-- See infra note 198 (discussing definition). The Framers might, of course, have chosen 'progress--or 'advancement-- because they allowed multiple interpretations. Distinguish, however, between(1) a word with several distinct meanings, but which is properly read in only one sense in anyspecific placement, and (2) a word which refers to an elastic concept, such as 'reasonable.-- TheConstitution abounds in type 2 words, but not in type 1 words. Based on the linguistic evidencediscussed below, see supra Section V, I think that in the eighteenth century, 'progress-- was atype 1 word.
FN 175 See supra note 134 (quoting Webster's definition). Johnson defines 'science-- as '1.Knowledge . . . 2. Certainty grounded on demonstration . . . 3. Art attained by precepts, or builton principles . . . 4. Any art or species of knowledge . . . 5. One of the seven liberal arts,grammar, rhetorick, logick, artithmetick, musick, geometry, astronomy.-- 2 Samuel Johnson, ADictionary of the English Language 1715 (Librairie Du Liban, 1978 facsimile of 1773 ed). Political economy is a branch of the science of the statesman or legislature. See Adam Smith,The Wealth of Nations 397 (Modern Library ed. n.d.). See also id. at 724-26 (discussing moralphilosophy, logic, the nature of G-d, the nature of the human mind, metaphysics, physics, andontology as sciences). Francis Bacon divided science into three branches, 'Astrology, NaturalMagicke, and Alcumy.-- Bacon, supra note 125, at 27. Bacon also names as 'sciences-- logic,rhetoric, history, natural history, medicine, metaphysics, mathematics, perspective, astronomy,architecture, engineering, morality, law, divinity, grammar, rhetoric, poetical meter, government,conversation, negotiation, and religion. See id. at 59, 85, 88, 110, 121, 158, 182. Humorexpanded the definition of 'science-- even further. See Peter Oliver, Origin & Progress of theAmerican Rebellion (eds. Douglass Adair & John A. Schutz Stanford Univ. paperback 1967)(referring to Benjamin Franklin as an 'Adept in the Science of Perfidy--). 'Progress-- in the booktitle merely indicates a history.
FN 176 See Miller, supra note 108, at 18. See also 2 James Beattie, Elements of MoralScience 10, 21 (Garland Pub. 1977 facsimile of 1790-93 ed) (asserting that man's two ends areaction and knowledge, of which action is primary, and that conscience is man's supreme facultyto whose decisions all other human faculties should defer); James Beattie, An Essay on theNature and Immutability of Truth in Opposition to Sophistry and Scoepticism 4-5, 14-15, 21(Routledeg/Thomemmes Press 1996 facsimile of 1771 ed) (listing 'moral philosophy-- as ascience, identifying 'moral philosophy-- with the 'science of human nature,-- and declaring thatthe latter is 'commonly acknowledged-- to be the 'most important--); Shaftesbury, Characteristicsof Men, Manners, Opinions, Times 133, 152 (ed. Lawrence E. Klein Cambridge Univ. Press1999) (referring to study of human behavior and morals as sciences); id. at 360 (referring toreligion as a science); Witherspoon, supra note 109, at 152, 154 (asserting that students shouldstart their study with the 'nature of man--; 'moral philosophy is that branch of science whichtreats of the principles and laws of duty or morals.--).
FN 177 But see, e.g., Jacques-Benigne Bossuet, Discourse on Universal History 114 (trans.Elborg Forester; ed. & with intro. Orest Ranum; Univ. of Chicago Press 1976) (doctrines ofreligion have existed 'without interruption and without alteration-- since 'beginning of theworld--). Bossuet was the Catholic chaplain at the court of Louis XIV of France and tutored theroyal heir. See Orest Ranum, Editor's Introduction, in Bossuet, supra, xiii at xiv, xxx.
FN 178 See, e.g., Bossuet, supra note 177, at 70 (Latin poetry was at the point of 'supremeperfection-- at the time of Virgil and Horace). See also Beattie, supra note 176 [Truth], at 499(That the ancient painters and statuaries were superior to the modern is universally allowed.--); 2Hugh Blair, Lectures on Rhetoric and Belles Letters 218-19 (Garland Publishing, New York,1970 facsimile of 1785, 2d corrected ed. printed for W. Strahan; T. Cadell, in the Strand; and W.Creech, in Edinburgh) (ancients surpassed moderns in eloquence of rhetoric); Turgot, supra note94, at 61, 103 (In the 'arts of taste, to painting, poetry, and music,-- we have become moreknowledgeable about these arts 'without having surpassed or even attained in the arts of designthat sublime beauty of which Greece (over a very short period) provided the models.--). But see 1Home, supra note 105, at 281 ('In a word, Homer was a blazing star, and the more to beadmired, because he blazed in an obscure age. But that he should in no degree be tainted withthe imperfections of such an age, is a wild thought: it is scarce possible, but by supposing him tobe more than man.--). See generally 3 Blair, supra, at 1-18 (discussing ancient/moderncontroversy and concluding that in studies involving facts, the moderns are more correct, while inareas involving taste and sentiment, the ancients are largely unmatched).
FN 179 See Beattie, supra note 176, at 331 ('If a man can reconcile himself to atheism, whichis the greatest of all absurdities, I fear I shall hardly put him out of conceit with his doctrine,which I show him, that other less enormous absurdities are implied in it.--); see also Roger J.Robinson, Introduction, in id., v, vii-ix (describing commonness and depth of such fear).
FN 180 See, e.g., Cohen, Copyright and the Perfect Curve, supra note 16, at 1800(recognizing general 'agnosticism about prospects for value-neutrality-- in the legal system'streatment of copyrightable subject matter). But see Riley M Sinder, John K. Lopker, & RonaldA. Heifetz, Promoting Progress: The Supreme Court's Duty of Care, 23 Ohio Northern Univ. L.Rev. 71, 78, 92-94 (1996)(asserting that Supreme Court is value neutral when deciding patentcases and arguing that Court should act similarly in civil rights cases by not imposing specificsolutions).
FN 181 See, e.g., Gerald Weissman, Nullius in Verba, in They All Laughed at ChristopherColumbus, 109, 118-19 (1987)(pointing out that microbes seen under Hooke's microscope in1660s were not linked to disease for about 200 years; 'They remained playthings for amateurcuriosity,-- unlike astronomy whose tie to useful navigation was recognized immediately).
FN 182 Bleistein v. Donadlson Lithographing Co., 188 U.S. 239, 251 (1903).
FN 183 See U.S. RR. Retirement Bd. v. Fritz, 449 U.S. 166, 184 (Brennan, J., dissenting)('The enactments of Congress are entitled to a presumption of constitutionality ....--); Norman J.Singer, Statutes and Statutory Construction § 45:11 (6th ed. 2000).
FN 184 See Merges, supra note 67.
FN 185 See supra note 81 (listing cases).
FN 186 See Samuel A. Thumma & Jeffrey Kirchmeier, The Lexicon Remains a Fortress: AnUpdate, 5 Green Bag 2d 51, 51-52 (2001).
FN 187 See Jaffree v. Smith, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting).
FN 188 See INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 2299 (2001)(Scalia, J., dissenting);Dept. of Commerce v. U.S. House of Rep., 525 U.S. 316, 347 (1999) (Scalia, J., concurring);U.S. v. Bajakajian, 524 U.S. 321, 335 (1998) (Thomas, J, op. for the Court); CampsNewfound/Owatonna, Inc. v. Town of Harrrison, 520 U.S. 564, 638 & n.20 (1997) (Thomas, J.,dissenting); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 858 n.7 (1995) (Thomas, J.,dissenting); U.S. v. Lopez, 514 U.S. 549, 585-86 (1995) (Thomas, J., concurring); Nixon v. U.S.,506 U.S. 224, 229-30 (1993) (Rehnquist, C.J., op. for the Court); County of Allegheny v. ACLU,492 U.S. 573, 648, 649 n.5 (1989) (Stevens, J., concurring in part & dissenting in part);Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 295 (1989) (O'Connor, J.,concurring in part & dissenting in part); Morrison v. Olson, 487 U.S. 654, 719 (1988) (Scalia, J.,dissenting); Josephy Burstyn, Inc. v. Wilson, 343 U.S. 495, 526, 536 (1952) (Frankfurter, J.,concurring).
FN 189 2 Johnson, supra note 175, at 1532.
FN 190 See id. For example, Johnson quotes Raleigh's History, 'Out of Ethiopia beyondEgypt had been a strange progress for ten hundred thousand men.-- Id. The sentence quoted fromLocke seems different: 'It is impossible the mind should ever be stopped in its progress in thisspace.-- In context, however, Locke is describing human conception of physical space. Thesentence is part of Paragraph 4 in Chapter 17, 'Infinity,-- in Locke's An Essay ConcerningHuman Understanding. Paragraph 4 reads in full:
4. Our idea of space boundless. This, I think, is the way whereby the mind gets the idea ofinfinite space. It is a quite different consideration, to examine whether the mind has the idea ofsuch a boundless space actually existing; since our ideas are not always proofs of the existence ofthings: but yet, since this comes here in our way, I suppose I may say, that we are apt to think thatspace in itself is actually boundless, to which imagination the idea of space or expansion of itselfnaturally leads us. For, it being considered by us, either as the extension of body, or as existingby itself, without any solid matter taking it up, (for of such a void space we have not only theidea, but I have proved, as I think, from the motion of body, its necessary existence), it isimpossible the mind should be ever able to find or suppose any end of it, or be stopped anywherein its progress in this space, how far soever it extends its thoughts. Any bounds made with body,even adamantine walls, are so far from putting a stop to the mind in its further progress in spaceand extension that it rather facilitates and enlarges it. For so far as that body reaches, so far noone can doubt of extension; and when we are come to the utmost extremity of body, what is therethat can there put a stop, and satisfy the mind that it is at the end of space, when it perceives thatit is not; nay, when it is satisfied that body itself can move into it? For, if it be necessary for the
motion of body, that there should be an empty space, though ever so little, here amongst bodies;and if it be possible for body to move in or through that empty space;--nay, it is impossible forany particle of matter to move but into an empty space; the same possibility of a body's movinginto a void space, beyond the utmost bounds of body, as well as into a void space interspersedamongst bodies, will always remain clear and evident: the idea of empty pure space, whetherwithin or beyond the confines of all bodies, being exactly the same, differing not in nature,though in bulk; and there being nothing to hinder body from moving into it. So that wherever themind places itself by any thought, either amongst, or remote from all bodies, it can, in thisuniform idea of space, nowhere find any bounds, any end; and so must necessarily conclude it, bythe very nature and idea of each part of it, to be actually infinite.
(emphasis added). Id. as available at<http://socserv2.mcmaster.ca/~econ/ugcm/3ll3/locke/Essay.htm> (last visited Nov. 24, 2001).
FN 191 For example, from Locke, 'Several defects in the understanding hinder it in itsprogress to knowledge.-- 2 Johnson, supra note 175, at 1532.
FN 192 See id.
FN 193 See Webster, supra note 133, at unnumbered page headed 'pro pro pro--.
FN 194 See id.
FN 195 See Lawrence M. Friedman, A History of American Law 88-89 (2nd ed. 1973).
FN 196 See also Susie I. Tucker, Protean Shape: A Study in Eighteenth-Century Vocabularyand Usage 185 (1967) (asserting that 'Royal Progresses were still remembered. . . . Collegeofficials and Judges still made Progresses in the eighteenth century.--).
FN 197 Webster's definition of 'art-- includes 'the modification of things by human skills--, asopposed to 'nature.-- He also defines 'art-- as a 'system of rules, serving to facilitate theperformance of certain actions-- which is opposed to the 'speculative principles-- of 'science.-- Yet, Webster's 'arts-- include both the 'useful-- or 'mechanic-- (in which the hands are body aremost concerned) and the 'liberal-- or 'polite-- (with mind predominating, e.g. poetry, music,painting. Webster, supra note 133, at unnumbered page headed ARR ARS ART.
FN 198 See infra section V.B.(discussing). Other explanations are possible. Webster's thirddefinition might translate into earning more money in either business or a hand craft. Webstermay be referring to change in practice over time. If so, Webster is unclear on whether qualitativeimprovement is a necessary component of the 'advancement.-- Webster's multiple definitions of'advance-- and 'advancement-- do not answer these questions with certainty. The definitionsinclude physical movement, improvement, and giving temporally beforehand. The 'trade--definition is 'additional price; profit; as, an advance on the prime cost of the goods.-- Webster,supra note 133, at unnumbered page headed 'adu adv adv.--
'Moving towards a pre-set goal-- is an unlikely meaning for 'progress-- in theConstitution because the spectacular advances in physical sciences in the 17th and 18th centuriescommonly led to the conclusion that 'no bounds could be put to their further development.-- Ronald L. Meek, Introduction, in Turgot On Progress, Sociology and Economics 1, 29 (1973). See also Turgot, supra note 94, at 113 ('The sciences, which are based on the combination or theknowledge of objects, are as boundless as nature. The arts, which are only relations to ourselves,are as limited as we are--; even the arts, while reaching perfection in certain respects, are 'capableof continuous progress in other respects.--).
FN 199 Johnson, supra note 163, at 2. The Plan is written in the form of a letter to Johnson'spatron, Philip Dormer, Earl of Chesterfield. Id. at 1.
FN 200 See id. at 5.
FN 201 Id. at 11 (discussing pronunciation).
FN 202 Id. at 4.
FN 203 Id. at 21, 31. Johnson considered himself to be purifying the English language as theFrench Academy had done for the French tongue. See id. at 29-30.
FN 204 [FN 293] Webster was not an unbiased spectator as to the meaning of the Progress Clause. See,e.g., Letter from Noah Webster to Senator Daniel Webster, Sept. 30, 1826, reprinted in NoahWebster, A Collection of Papers on Political, Literary, and Moral Subjects (Burt Franklin 1968reprint; first published 1843) (requesting perpetual protection for his writings). But see DavidMickelthwait, Noah Webster and the American Dictionary 2, 10 -11, 82-83 (McFarland & Co.,Phil. 2000) (Webster inconsistently wanted extreme protection for books he issued even thoughhe borrowed heavily from earlier works).
FN 205 See, e.g., Wood, supra note 100, at 345 (describing change in meaning of the word'gentleman--). See also McDonald, supra note 99, at 71-72, 284-91 (discussing changes inmeaning of words 'federal,-- 'federation,-- 'republic,-- and 'republican.--).
FN 206 Webster, Preface, in supra note 133, at 2nd unnumbered page of 1828 Preface by NoahWebster.
FN 207 See id.
FN 208 The upper class and proscriptive focus of these dictionaries, furthermore, highlight theevidentiary issue I discuss more fully in the companion piece to this article, 'The Constitution asPromise: Textualism, Originalism, and Evidentiary Bias.-- Even if one accepts the originalmeaning theory of constitutional exegesis, whose 'ordinary meaning-- is relevant? The drafters? The delegates to the ratifying conventions? The persons who elected those delegates? Thepersons who were legally entitled to elect those delegates? What about the persons living in the1789 United States who would have been entitled to vote by current United States standards?
FN 209 See Forrest McDonald & Ellen Shapiro McDonald, Requiem: Variations onEighteenth Century Themes 9 (Univ. Press of Kansas 1988).
FN 210 I base this assertion on my on-line search. See <http://www.av1611.org/kjv> (searched July 4, 2001). The King James version was the standard American Bible at least untilNoah Webster published the first American revision of the Bible in 1833. See Thurston Greene,The Language of the Constitution xviii (1991).
FN 211 See supra Section III.
FN 212 Some of the decisions are difficult and disputable. Therefore, I originally placeddoubtful occurrences into the 'quality improvement-- category. See infra text accompanying notes220-231 (removing some from this category).
FN 213 Neither Johnson nor Webster lists this meaning of 'progress,-- unless you forceWebster's second definition into teleological chronology. Yet, in his pamphlet on theConstitution, Webster's two uses of the word 'progress-- are best read as invoking'chronological ordering-- or 'history.-- See Webster, supra note 100, at 29, 58. For qualityimprovement, the pamphlet uses variations of perfection, improvement, and advancement. Seeid. at 30, 31, 34, 36, 41 n.*, 58, 64.
'Chronological progression,-- furthermore, does not create a viable, separate meaning forthe Progress Clause. The Clause would translate into: 'Congress shall have the power ... topromote the chronological progression of science and the useful arts, by ...-- This presumablymeans that Congress is allowed to speed up change in knowledge and technology. That power,however, seems identical to a power to promote the 'qualitative improvement-- or 'quantitativeimprovement-- of knowledge and technology.
FN 214 See Pennsylvania Gazette, items no. 45706 (twice); 60587; 73571; 75075; 75508;78322; 83286.
FN 215 See Pennsylvania Gazette, items no. 01164 (twice); 42736; 70594.
FN 216 See Pennsylvania Gazette, items no.04118; 06546.
FN 217 in addition to the constitutional quote in Federalist No. 43, supra note 158.
FN 218 Pennsylvania Gazette, item no. 74382.
FN 219 Pennsylvania Gazette, December 5, 1787, item no. 74466 (emphasis added).
FN 220 I classified improvement by 'mankind,-- i.e. all humans, as improvement of theknowledge set.
FN 221 The two examples which facially invoke the qualitative improvement of mankind'sknowledge base are: ''Several defects in the understanding hinder it in its progress toknowledge.' Locke.-- and ''[i]t is strange, that men should not have made more progress in theknowledge of these things.' Burnet-- 2 Johnson, supra note 175, at 1532. The Burnet quote doesrefer to qualitative improvement of man's knowledge base. Burnet is disproving Aristotle'stheory that the current earth is eternal. Burnet argues that men have very imperfect knowledge ofgeography and navigation. Assuming the world is only 6000 years old, as the Bible states, '[i]t isstrange, that men should not have made more progress in the knowledge of these things.-- If menhad existed forever, their ignorance would be even more unfathomable. See Burnet, supra note124, at 46. I failed to locate the John Locke quote by doing text search of all his work I couldfind on www as etexts. 'Short Observations on a Printed Paper entitled, 'For Encouraging thecoining of silver money ...'--; Of the Conduct of the Understanding--; An Essay ConcerningHuman Understanding (6th ed)--; A Letter concerning toleration--; Some thoughts concerningeducation--; 'Further Considerations concerning rasing the value of money--; 'Concerning CivilGovernment--; Some Consideration of the Consequences of the Lowering of Interest ..--; 'TwoTreatises of Government.--
FN 222 This column provides the item number attached to the document by the databaseorganizer.
FN 223 Samuel Johnson, Noetica, in Elementa Philosphica: Containing Chiefly, Noetica, orThings relating to the Mind or Understanding: and Ethica, or Things relating to the MORALBEHAVIOUR (Kraus Reprint Co., 1969 facsimile ed. of 1752 ed. printed by B. Franklin & D.Hall, Phila; Noetica is separately paginated inside volume). Chapter VI, 'Of the Progress of theMind, towards its highest Perfection,-- deals with the developmental stages through whichindividuals pass as they grow up, i.e. 'progress-- means increase in an individual's proficiency inpre-existing knowledge and skill bases. See id. at xxxiii-xxxiv (Table of Contents showingsubject headings).
FN 224 See Henry Home, Lord Kames, Sketches of the History of Man (1968 Georg OlmsVerlagsbuchhandlung facsimile of 2d ed. 1778 in four volumes). The Gazette advertisement ispresumably for the shorter first edition which was published in 2 volumes in 1774. See Home,supra note 105, at unnumbered page before title page. Lord Kames describes his work as 'anatural history of man.-- Id. at vii (author's preface).
FN 225 See Richard Price, Two Tracts on Civil Liberty, the War with America, and The Debtsand Finances of the Kingdom: with a General Introduction and Supplement (De Capo Press 1972reprint of 1778 first combined ed. of Additional Observations on the Nature and Value of CivilL]iberty, and the War with America and Observations on the Nature of Civil Liberty, ThePrinciples of Government, and the Justice and Policy of the War with America, first published1777).
FN 226 See 1 Blair, supra note 178, at 122 ('I shall first give a History of the Rise andProgress of Language in several particulars . . . which shall be followed by a similar History ofthe Rise and Progress of Writing.--)..
FN 227 Eighteenth century writers were quite taken with the concept that different modes ofdiscourse belonged to different occasions and subjects. See Aristotle, supra note 164, at 196('each kind of rhetoric has its own appropriate style.--); James Beattie, Essays: On Poetry andMusic 7 (Routledge/Thoemmes Press 1996) ('[T]he essential or indispensable rules of an art arethose that direct to the accomplishment of the end proposed by the artist.--); Witherspoon, supra,note 127, at 290-95 (discussing need to match style to subject, goal, and occasion in order to'preserve the writer from a vicious and mistaken taste.--). See also Daniel Defoe, The CompleteEnglish Tradesman 7 (Historical Conservation Society, Manila, 1989 facsimile of 4th ed. 1738)('a tradesman's letters should be plain, concise, and to the purpose; no quaint expressions, nobook-phrases, no flourishes ....--); John Tennent, Every Man His Own Doctor 8 (4th ed. 1802,Richmond, Va.; microform, Early American Imprints, 2d series no. 2200) ('In setting down thefollowing prescriptions, I have been cautious of talking like an apothecary; that is, of using hardwords, that perhaps neither my patient, nor I myself understand.--). Compare id. at 7 ('thesymptoms cannot be easily by mistaken--) with [Dr.] Thomas Young, Letter Printed in Pen. Gaz.Oct. 17, 1775 at 1 (Accessible Archives Item No. 58370) ('I must beg your favor to convey thisgeneral intelligence to all who may think my poor advice worthy of their attention, namely, thatthe grand mystery in our profession is, to determine accurately the peculiar constitution, habit,particular disposition, natural or accidental, of every patient we take upon us to advise.Understanding then to satisfaction how such patient has been, as to the common operation of theseveral functions of the body, we are next to examine into the several deviations from thatstandard which now take place in the system[.]--).
FN 228 See Pennsylvania Gazette Items 06302 (1744), 06382 (1744), 5272 (1742), 04907(1742), 04850 (1741), 04533 (1741), 36763 (1765)35749 (1765), 34048 (1764), 19071 (1755),10647 (1749), 27581 (1761) (including advertisements for Pilgrim's Progress).
FN 229 The Pilgrim's Progress is John Bunyan's addition to a pre-existing genre of religiousbooks using a journey as an allegory for a sinner's attempt to attain salvation. See, e.g., Memoirof John Bunyan, in The Pilgrim's Progress 1, 4 (Fleming H. Revell publisher n.d.)(mentioningthat Bunyan's wife owned a copy of 'The Plain Man's Patheway to Heaven--). The journeyallegory is noted in, for example, the fuller title, 'The Pilgrim's Progress from this World to thatwhich is to Come, delivered under the similitude of a dream: wherein is discovered the mannerof his setting out, his dangerous journey, and safe arrival at the desired country.-- See also, e.g.Bunyan, supra, at 13 (the saints' 'journey--); 19 ('This book will make a traveler of thee--); 21('As I walked through the wilderness of this world ....--); 42 (Christian describing himself as 'atraveler-- requesting 'help to me in my journey--). A more modern, comic use of 'progress' for ajourney of discovery is Mark Twain, The Innocents Abroad, or The New Pilgrims' Progress:Being an account of the steamship Quaker City's pleasure excursion to Europe and the HolyLand (Harper & Bros. Publ. 1906).
FN 230 See, e.g., James Beattie, The Minstral; or The Progress of Genius: with Other Poems189-90, 195, 201-02, 214, 216 (London 1811) (showing hero is traveling). The Minstral soldfive large editions in less than four years and attracted major attention abroad in severaltranslations. See Alexander Chalmers, Memoirs of the Life of Dr. James Beattie, in id. iii, xii. Beattie's book is advertised in Pennsylvania Gazette item 70456 (1784). The Gazette alsoincludes an advertisement for the picture series The Rake's Progress. Item 24217 of 1760. Thisis one of two famous etching series by Hogarth showing the life and infamous death of moraltypes, an outgrowth of the allegorical journey genre. The other picture set is The Harlot'sProgress. See Henry Fielding, Tom Jones 91, 139 (mentioning The Harlot's Progress) (PenguinPaperback 1966).
FN 231 See Item no. 59857.
FN 232 See Meeck, supra note 198, at 6.
FN 233 See id. at 11. The standard alternative European view of human history was Christian. See, e.g., Bossuet, supra note 177 (presenting history of mankind with strong reliance on theBible); see also Burnet, supra note 124 (presenting a biblically-based, geological history of theearth). The relationship between secular progress theses and religious hope in a messianic age iscomplex and disputed. Compare, e.g., Meek, supra note 198, at 29 (asserting that Turgot'stheory was both an alternative to and strongly influenced by Bossuet's); Ernest Lee Tuveson,Millennium and Utopia: A Study in the Background of the Ideal of Progress 4 (1949) (arguingthat religious, teleological approach to the world is one ancestor of the belief in a scientific,evolutionary type of progress) with Burry, supra note 63, at 68 (describing Christian belief in 'anactive intervening Providence-- as opposed to the Idea of Progress).
FN 234 This attitude is congruent with colonial North America's notorious disrespect forprofessionals and specialists. See, e.g., Boorstin, supra note 146, at 168, 189-265.
FN 235 Cumulation is premised on language, especially in written form. See Turgot, 'APhilosophical Review of the Successive Advances of the Human Mind,-- in Turgot on Progress,Sociology and Economics 41, 41-44 (trans. ed. Ronald L. Meeck Cambridge Univ. Press 1973).
FN 236 See id. (outlining thesis); see also Meek, supra note 198, at 7-13 (same).
FN 237 Condorcet, supra note 94.
FN 238 Condorcet's Sketch was not published in any language until 1795. See Condorcet,supra note 94 at xiii (inside 'a note on the text--). The first English language statement ofTurgot's position may have been Condorcet's 'Life of Turgot-- which was published in Englishin 1787. See Meek, supra note 198, at 13 n.5.
FN 239 Condorcet, The Life of M. Turgot, Controller General of the Finances of France in theYears 1774, 1775, and 1776; written by The Marquis of Condorcet, Of the French Academy ofSciences, and Translated from the French, With an Appendix (London, J. Johnson, 1787).
FN 240 I did a full text search for 'turgot-- and located two items, neither of which mentionedthis volume. See Search Run on Dec. 21, 2001 locating Items 71617 and 73991 (on file withauthor).
FN 241 See Condorcet, supra note 239, at 15, 16, 17 (three occurrences), 116, 133, 150, 169,190, 279 n*, 339, 360, 361, 363 (twice), 364.
FN 242 See id. at 43, 67, 254, 257, 328, 337, 418.
FN 243 See id. at iv, 37, 372.
FN 244 See id. at 27, 104, 297.
FN 245 See id. at xii, 16 (twice), 17 (twice), 89, 132, 169, 232, 258, 259, 330, 360, 361 (threetimes), 362, 364, 365, 367, 369, 392, 393, 394.
FN 246 The standard eighteenth century concept of 'economics-- was that part of moralscience which dealt with an individual's duty to his or her family. See 2 Beattie, supra note 176[Moral Science], at 10. Smith's extension leads to the dismal first essay on population byThomas Robert Malthus. Malthus was responding to one of Godwin's essays in 'The Enquirer--.See Robert Thomas Malthus, Population: The First Essay xiii (1st ed. of Ann Arbor Paperback)('The following Essay owes its origin to a conversation with a friend, on the subject of Mr.Godwin's Essay, on avarice and profusion, in his Enquirer.). The last two works, however, werepublished respectively in1797 and 1798, after the drafting and ratification of the U.S.Constitution. See Malthus, supra, at xii, xiv; William Godwin, The Enquirer: Reflections onEducation, Manners, and Literature in a series of essays (Garland Publishing 1971 facsimile)(reproducing date on unnumbered title page of original ed.). I , therefore, exclude them from my'progress-- survey.
FN 247 See Michael Kiernan, Preface, to Francis Bacon, The Advancement of Knowledge vii,vii (ed. intro. Michael Kiernan; Clarendon Press, Oxford 2000).
FN 248 See Michael Kiernan, Introduction, to Bacon, supra note 236, at xvii, xvi, xxiv.
FN 249 See, Bacon, supra at 125, at 9, 23.
FN 250 See id. at 111. This is the Bacon quote used by Johnson's dictionary. See supra note192 and accompanying text.
FN 251 See Bacon, supra note 125, at 191. I admit that this quote is difficult to parse. I may,therefore, be in error.
FN 252 See also id. at 5, 25, 27, 32, 55 (using 'advancement-- to mean improvement inknowledge base).
FN 253 See Meric Casaubon, A Treatise Concerning Enthusiasm (1970 facsimile of 1655 ed.).
FN 254 See id. at 176, 199.
FN 255 See id. at 184.
FN 256 Lawrence E. Klein, Editor's Introduction, in Shaftesbury, Characteristics of Men,Manners, Opinions, Times vii, vii (ed. Lawrence E. Klein Cambridge Univ. Press 1999). Shaftesbury's optimistic philosophy links aesthetic and moral senses; it teaches that politicalliberty is central to men's intellectual and cultural achievement, which he labeled 'politeness.--See id. at vii, xvii-xviii.
FN 257 See Shaftesbury, supra note 176, at 22, 11, 354, 395, 396, 464 (twice).
FN 258 See id. at 202.
FN 259 See 2 Mandeville, supra note 164, at 43.
FN 260 See F. B. Kaye, Introduction, in Bernard Mandeville, The Fable of the Bees: orPrivate Vices, Publick Benefits xvii, xxxix, lx-lxi (Clarendon Press, Oxford, Eng. 1924).
FN 261 See id. at xxxiii_xxxvi.
FN 262 See id. at cxvii.
FN 263 See Mandeville, supra note 164, at xv-xvi (table of contents).
FN 264 See id. at vol. 1, p. 288 ('Few children make any progress at school, but at the sametime they are capable of being employed in some Business or other ...--).
FN 265 See id. at vol. 2, p. 221 (referring to lack of 'progress-- towards hearing Horatio'stheory of the origin of society).
FN 266 See id. at vol. 2,. 143 ('Which all together make a strong Proof of the slow Progressthat Art [shipbuilding] has made ....--); id. at vol. 2, p.p.146 ('Men would make but a smallprogress in good Manners the first three hundred Years [after barbarism]. --).
FN 267 See, e.g., id. vol. 2, at 187-88, 319-23.
FN 268 See Bernard Mandeville, A Letter to Dion 40 (ed. Bonamy Dobree: Univ. Press ofLiverpool, 1954).
FN 269 See David Berman, Introduction, to George Berkeley, Alciphron or the MinutePhilosopher 1, 1-2 (ed. David Berman 1993). The work is written as a dialogue betweencharacters representing freethinkers (including Shaftesbury and Mandeville) and Christians (suchas Berkeley). See id. at 10.
FN 270 See George Berkeley, Alciphron or the Minute Philosopher 6, 12, 24, 29, 52, 158 (ed.David Berman 1993).
FN 271 See id. at 139.
FN 272 See id. at 39.
FN 273 Francis Hutchinson, Reflections Upon Laughter and Remarks upon the Fable of theBees (Garland Publishing 1971 facsimile of 1750 ed.).
FN 274 Francis Hutchinson, An Inquiry into the Original of Our Ideas of Beauty and Virtue(Garland Publishing 1971, facsimile of 2d ed. 1726).
FN 275 Francis Hutcheson, Francis Hutchinson on Human Nature (ed. Thomas MautnerCambridge Univ. Press 1993) (containing both [FN 294] 'Reflections on Our Common Systems ofMorality,-- and 'On the Social Nature of Man--).
FN 276 See Hutchinson, Bees, supra note 273, at 50, 54, 72.
FN 277 Smith, supra note 65. This work was first published in 1759. See D. D. Raphael &Al. L. Macfie, Introduction, in id. at 1, 1.
FN 278 Adam Smith, The Wealth of Nations (Modern Library no date). This book was firstpublished in 1776. See Max Lerner, Introduction, in id. at v, vii.
FN 279 See Smith, supra note 65, at 88 (meaning spread or numerical increase); id. at 289(meaning figurative movement or chronological ordering).
FN 280 See Smith, supra note 168, at 148, 175, 176, 217 (three times), 218, 219 (twice), 220(twice), 224 (twice), 225, 226, 228 (twice), 229, 230, 235, 242 (twice), 318, 658, 668, 669, 738.
FN 281 See id. at 10, 38, 51, 8 (twice), 89, 135, 191, 217, 326, 327, 328, 329, 347, 348, 356(twice), 357, 373, 393, 397, 533 (twice), 618, 638, 651, 658, 659, 661, 664, 680 (twice), 687,730, 734, 757, 876, 881.
FN 282 See id. at 885, 886.
FN 283 See id. at 654..
FN 284 See id. at 723.
FN 285 See id. at 347, 394, 532 (twice).
FN 286 See id. at 533 (twice), 551, 657, 708, 757, 879.
FN 287 See id. at 320, 360, 380, 383, 534 (twice), 537 (twice), 538 (three times), 553 (twice),565, 590, 599.
FN 288 By 'mixture,-- I mean phrases such as 'the progress of population and law-- wherepresumably the population increase is numerical and the legal increase is qualitative.
FN 289 See supra note 213 (discussing).
FN 290 U.S. Const. Art. I, Sec. 8, Cl. 8 (The Progress Clause, a.k.a. the Copyright and PatentClause, the Intellectual Property Clause, and the Exclusive Rights Clause).
FN 291 See supra note 87 (discussing Treaty Power).
FN 292 This article is dedicated to David Lange in partial repayment for Recognizing thePublic Domain, 44 (4) L. & Contemp. Props. 147 (1981).
FN 293 [Woods?]
FN 294 Francis Hutchinson, An Inquiry into the Original of Our Ideas of Beauty and Virute(Garland Publishing 1971, facsimile of 2d ed. 1726).
Constitution Day: The U.S. Constitution and Copyright Balance | ARL Policy Notes
Sun, 25 Nov 2018 09:29
Happy Constitution Day! September 17th commemorates the signing of the U.S. Constitution in 1787. Among its many clauses, the Framers of the Constitution provided for an intellectual property clause in Article I, Section 8, Clause 8, which grants Congress the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This clause provides the rationale for our intellectual property system. While the clause is a grant of power to Congress, so too is it an important limitation. The Supreme Court of the United States has confirmed that the clause ''is both a power and a limitation'' and, in the patent case, Graham v. John Deere Co., stated that ''Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose.'' In copyright cases, the Supreme Court has confirmed that ''The immediate effect of our copyright law is to secure a fair return for an author's creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.'' Twentieth Century Music Corp. v. Aiken.
It is important to remember that the Constitution allows Congress to set limited-time monopolies over intellectual property, but ultimately the goal is ''To promote the Progress of Science and useful Arts.''
Promoting progress depends on a rich public domain. The public domain not only allows the public to access books and texts for learning and discovery, but also serves as a storehouse of raw materials from which derivative works are created and new ideas are built.
Unfortunately, copyright term has been extended extensively since the first Copyright Act of 1790 (modeled after the 1710 Statute of Anne) which provided for a 14 year initial term, with the possibility of a 14 year renewal. Currently, the copyright term is the life of the author plus 70 years or 95 works for corporate works, significantly exceeding the international term of life plus 50 years. The currently negotiated Trans-Pacific Partnership Agreement (TPP), a large free trade agreement between 12 countries in the Asia and Pacific region, includes proposals to export this term to other countries, but also includes a proposal from Mexico to extend our current term to the life of the author plus 95 years. Lengthy copyright terms hinder the stated Constitutional rationale for the intellectual property protection by shrinking the public domain and exacerbating the orphan works problem.
In the Eldred v. Ashcroft case, the Supreme Court unfortunately upheld by a 7-2 majority that the Copyright Term Extension Act which set the current copyright term, deferring to the judgment of Congress. The majority opinion in that case did not, however, address the appropriateness of the copyright term extension. Justice Breyer, however, in dissent vigorously opposed the extension as a violation of the Constitutional rationale of the intellectual property system:
The economic effect of this 20-year extension'--the longest blanket extension since the Nation's founding'--is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of ''Science'''--by which word the Framers meant learning or knowledge.
While the Eldred case had the unfortunate effect of upholding the current term of life plus 70 years, the Supreme Court has interpreted the intellectual property clause to place limits on copyright protections in other areas. For example, the Court has ruled that copyright does not protect facts, only expression. See Harper & Row v. Nation Enterprises. In Feist Publications v. Rural Telephone Service, the Supreme Court held that ''Originality is a Constitutional requirement'' for copyright protection and that:
As Justice Brennan has correctly observed, however, this is not ''some unforeseen byproduct of a statutory scheme.'' It is, rather, ''the essence of copyright,'' ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but ''to promote the Progress of Science and useful Arts.'' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (internal citations omitted).
Aside from copyright term and the scope of copyright, copyright limitations and exceptions can help advance the important Constitutional goal of promoting progress. The Copyright Act has a number of specific limitations and exceptions as well as a flexible doctrine known as fair use, codified under Section 107. These limitations and exceptions to copyright allow for the reliance on copyrighted works without permission of the rightholder. Fair use is a critical right of users, allowing copyright law the flexibility to adapt to evolving technologies and promoting the progress of science.
The Supreme Court in Campbell v. Acuff-Rose noted that fair use supports the Constitutional purpose of copyright:
The fair use doctrine thus ''permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.'' . . . The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the hart of the fair use doctrine's guarantee of breathing space within the confines of copyright . . . (internal citations omitted).
In addition to supporting the intellectual property clause of the U.S. Constitution, fair use also provides an important accommodation to the guarantee of freedom of speech in the First Amendment. In the Eldred v. Ashcroft case, the Supreme Court confirmed that fair use serves as a ''First Amendment safeguard.''
In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection . . . Second, the ''fair use'' defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.
The Constitution's intellectual property clause grants Congress the power to permit limited time monopolies on copyright, but also mandates balance in the copyright system. The ultimate goal of copyright is to promote progress and advance the public good. Thus, the Supreme Court has interpreted the intellectual property clause to limit copyright in many ways, by distinguishing between facts and expression and requiring some degree of originality for copyright protection. While copyright and the First Amendment right to freedom of speech could potentially be in tension with each other, the fair use doctrine provides an important safeguard to both accommodate the rights of users and promote the progress of science. In celebrating Constitution Day, celebrate that the Constitutional rational for the U.S. intellectual property system is inherently grounded in the concept of balance: providing an incentive to authors, but ultimately advancing the general public good.
Article I | Constitution | US Law | LII / Legal Information Institute
Sun, 25 Nov 2018 09:17
Section 1.All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section 2.The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.
No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
Section 3.The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.
Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.
The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
Section 4.The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.
Section 5.Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.
Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
Section 6.The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.
Section 7.All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
Section 8.The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Section 9.The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
No tax or duty shall be laid on articles exported from any state.
No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
Section 10.No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
Life Simulations
Cannot be scoffed at for thinking about the Simulations
Simulation. Must be some NPC’, but also Bots: very sophisticated, yet limited in scope. Tay from msoft
Reddit bot proof-transcript Change. No more show reviews
Is Instagram a simulation of reality? '' Bristol Society and Space
Sat, 24 Nov 2018 16:47
By Claudia Carter The focus of this piece is to examine and investigate how Jean Baudrillard's work help us reimagine/rethink the world around us? Baudrillard's theoretical orientations act to question reality and his concepts suggest that there is nothing, only illusions. He uses Disneyland as his example when discuss simulation because the fantasy it creates was supposed ensure its success, Disneyland is presented in such a way that make us believe it is real (Baudrillard, 1994, p10). His work help to form an understanding of an environment which generates images of what the world is supposed to be like, but these representations are potentially simulations This piece aims to evaluate whether instagram is an 'illusion', specifically a 'simulation' meaning that is the social media platform actually how it seems. Through the use of Jean Baudrillard's theory we can start to understand how imagining the world around us is a simulation of reality.
What is Simulation?
What the philosopher Jean Baudrillard meant by simulation is not a place, territory or being, but a model of reality and how makes us think about how reality is generated ( Baudrillard, 1994, p2). He summarises simulation as the imitation of a real-world process or system over time ( ibid.). His theory is based on redefining the sign as a 'simulacrum' (Plural = Simulacra), which comes from the Latin word simulare, which is defined as to ''make like'' or ''simulate'' (John and Weiner 1989). However, when images are called a simulation ( Baudrillard, 1994, p2) they seduce the viewer by pretending to have something they actually do not.
Instagram is a social media platform which allows users to create a profile and upload and share images across the world arguably acting as a form of mass communication through the use of visual aids. The role of a photo on Instagram creates questions of accuracy in the representation of what is portrayed for example, the image captured might have no connection to the reality, either by being fake or distorted. What I will draw from Baudrillard's work is how his theoretical orientations present the consumption of images and the relationship they have to the real world.
What is a Simulation of reality?
Simulated images are not inaccurate or a replicate per say but a new form or order of reality, a ''hyperreality'' ( Baudrillard, 1994). Baudrillard argues that there is no truth but only the simulated image, what this means is that we live in world with fakes and replicas of what the world actually is because mass media distorts reality so much we no longer have any connection to the actual reality. If we want to break down and try to understand how this version of reality is generated then we can do this through a process of simulation. Baudrillard's ''Precession of Simulacra'' ( ibid., p2) help to discuss the simulation of images and how they come to be. There is no distinct place of where and when images or signs become a simulation; it is understood as more of process or set of stages on how they might gradually transform or come to be.
Stage 1: ''it is the reflection of a profound reality'' ( ibid., p6).
At the first stage, there is no simulation taking place yet, there reason why is because Baudrillard argues the image starts as a good representation of reality; for example, if an image was uploaded to Instagram which was a direct reflection of reality, then it is not necessarily part of the simulation because what was taken can be found in elsewhere in the world. If an Instagram user were to take an image of a flower, which is a faithful copy with an original then the image is a ''reflection of a profound reality'' ( ibid., p6), because the flower can be found in reality, the image on instagram is a direct copy.
Stage 2: ''it masks and denatures a profound reality'' ( ibid., p6).
On Instagram users have the ability to manipulate images and the settings of an image. This is where the debate on simulation starts to manifest appropriately, for Baudrillard the second stage discusses the idea of a slight perversion of reality. If a user wants to take and use the image of the flower, but elects to add a filter, then the image is no longer a direct copy of reality. The image is now an unfaithful copy because the original nature of the image in no longer the same. The image is still clearly similar to the original and a human subject can perceive the image to be a flower, however it is now slightly distorted from the initial image.
Stage 3: ''it masks the absence of a profound reality'' ( ibid., p6).
In the third stage the image then completely masks reality; it is a copy with no original. For example, if the user uploads an image of the flower onto Instagram but decides to change the brightness or contrast of the image, as well add a filter then the user has created a new reality. The image is now no longer the same as reality; it has changed or been altered beyond the original image.
The third stage creates an idea of there being no representation and the arbitrary image is merely suggested to be things that humans have no relationship to. The manipulation of images on Instagram, for example when someone uses a filter or alters visual presentation settings, brightness or contrast, acts to create a new reality for the picture. The new image technically no longer exists anywhere else, therefore having no origin it acts as still being in the process of becoming pure simulation.
Stage 4: ''it has no relation to any reality whatsoever; it is its own pure simulacrum''
The final stage is pure simulation, which means that the image created, has no connection or relationship to reality at all. This is the stage where images or signs reflect other images or signs, they only make sense for themselves now, the image now has its own reality. The image now in comparison to stage one is completely different, the image at stage four is now an image of an image and argued to be unreliable or untrustworthy because we are now deceived when we look at the image, we think the new image is real but it isn't because it doesn't belong anywhere else. The image is nothing like the original, the image at stage four is a complete lie and a pure simulation. Simulation is the process of destroying anything that references the real world.
In conclusion it is difficult to state and pin point the exact moment an image becomes a simulation, from the stages of simulacrum discussed I can suggest that simulation is more of a process. Jean Baudrillard's postmodern critical theory helps to examine and interpret the social media platform Instagram and makes a successful attempt at explaining and arguing as to why the entire network of Instagram might be a simulation of reality, because it makes us believe it is real. His theory can be applied to many areas '' for example, he uses this theory to explore TV, film advertising, media stories and so on. However, since the introduction of 21 st century technologies his work can provide an insight on the potential for questioning the reality uploaded to instagram because his work helps to demonstrate that the simulation is a state of imagination that is neither true nor necessarily untrue.
References:
Baudrillard, J. and Foss, P., (1983). Simulations. New York: Semiotext(e).
Baudrillard, J. (1993, [1976]). Symbolic Exchange and Death. trans. I. H. Grant London: SAGE.
Baudrillard, J., (1994). Simulacra and Simulation. University of Michigan press.
If the Universe is a Simulation, Can We Hack It? | Gaia
Sat, 24 Nov 2018 16:37
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By: Gaia Staff | April 17th, 2018
In 2003, Nick Bostrom published a paper proposing three scenarios he says he believes are likely to be true about our reality. One of those possibilities is that we are living in a computer simulation, a theory gaining increasing attention in our era of prevailing tech fascination. But if the universe is a simulation, can it be hacked?
Is the Universe a Computer Simulation? We've heard from a number of scientists and thought leaders, including Elon Musk, it's likely we're living in a computer-simulated reality. Musk said he believes there's a one-in-billions chance we're living in ''base reality,'' or a non-simulated, completely organic existence.
It's also becoming more apparent that mathematics is the language of nature '-- a universal dialectical that can be used to describe everything, from the inconceivably large to the infinitesimally small. As we continue to acquire more insight on this reality it appears we may be living in what appears to be a physical construct that might actually be generated from code.
Reprogramming the Simulation Code
In an attempt to understand the fundamental laws of nature, theoretical physicist, Dr. James Gates, discovered a set of equations he says are indistinguishable from the computer code one might find powering their web browser. In his study of string theory, he also discovered an error-correcting code in supersymmetry equations used to describe how the universe works. This forced him to ask himself, ''am I living in the Matrix?''
Gates said, upon his discovery, that he came to a profound existential quandary; ''I have in my life come to a very strange place, because I never expected the movie The Matrix might be an accurate representation of the place in which I live.''
But this concept can also be thought of as a semantic argument bridging the gap between materialists identifying as atheists, and those with spiritual or religious beliefs in a creator. Could stories of saints and enlightened beings performing miracles, reincarnating, and transcending our reality also be construed as humans who figured out how to hack the simulation?
The concept of a computer-generated reality would require a creator or engineer behind the simulation, similar to what us mortals might call a god '' but isn't that essentially describing the same thing, just explained by the language of two different world views?
In fact, one of the comments pinned to the front page of Bostrom's website reads, ''the simulation argument is perhaps the first interesting argument for the existence of a creator in 2,000 years.'' The comment comes from David Pearce, a thought leader in the decreasingly conceptual, and increasingly applied realm of transhumanism, a field of technology epitomizing the desire to hack our existence.
For many this leads to ethical questions of ''playing god'' and messing with nature. But could transhumanism prove to be an inevitable next step for us?
3 Ways to Hack our Simulated RealityTranshumanism '' Transhumanism is about re-engineering our world and bodies to improve quality of life, lessen suffering, and increase happiness. David Pearce calls this the ''Hedonistic Imperative,'' or ''paradise engineering.'' Pearce foresees this as humans rewriting our genetic ''source code,'' so that life can be entirely based on ''information-sensitive gradients of bliss.'' And it seems this process is already underway with the CRIPSR/Cas9 gene editing tool. Pearce's definition of engineering happiness sounds like the way Elon Musk has warned that artificial intelligence might approach our problem of happiness by seeking to influence chemical or molecular processes in our brain responsible for pleasure. Though, Musk painted a picture of this prospect in a more disturbing way, envisioning humans living an idle life with our dopamine and serotonin levels constantly stimulated. If this is starting to sound like the plot of Brave New World, stop reading now, because Pearce may be on the precipice of finding the soma. Just kidding '' he's already defended against that argument, and soma is far too weak and mind-numbing than what he aims to create '' a comprehensive solution that promotes and stimulates consciousness rather than anaesthetizing it.Pearce says the hedonistic imperative is not a plea for blissing out, but rather ''radical hedonic recalibration.'' How radical? The complete abolishment of suffering, period. And not just human mental and physical suffering, Pearce calls for a global utopia in which all animals are free of suffering, whether caused by humans or nature. It's probably no surprise that Pearce is a vegan.With transhumanism, gene editing is considered the future key to solving our physical, emotional and intellectual problems. While this is perhaps the most scientific approach of hacking the simulation, it also raises ethical concerns of theoretical designer babies and physical upgrades that only the wealthy can afford.
Social Development '' Our existence in this life is fleeting. As we get older, it seems that time becomes more ephemeral. Add to this the ubiquity of social media, constant communication, and digital connectivity, and our lives seem to be speeding up at an exponential rate. Before we know it, our lives will have passed in front of us while we were staring at a computer screen '-- a simulated reality in itself. When we look at how technological advances are affecting our lives and changing our behavior, we're realizing just how intrinsic our day-to-day online habits are to our lives. Recently a former Facebook exec admitted he felt responsible for destroying the fabric of society through the platform's dopamine-driven feedback loops that keep us addicted to the technology.These systems are designed to create echo chambers; promoting confirmation bias, in which we only hear ideologies and beliefs that confirm our own. Political, social, economic '-- all these belief systems are constantly being confirmed by news feeds and curated content based on what you like and who you agree with.We're not getting the other side of the story, or the opposing views that are needed to connect with other humans and generate meaningful, healthy discourse. Unity, understanding, empathy '-- if we want to hack the simulation and advance to the next level, these are key factors we need to embrace in order to advance emotionally, physically, and intellectually.
Meditation '' Meditation is the simulation hacking method that has been used for centuries. The only way one can truly access consciousness directly is by going within through meditation.The goal of meditation in Vedic ideology is to eliminate Maya, the illusory ignorance of what we perceive as reality where we see ourselves as finite beings, separate from the creator. Maya is not this illusory reality itself, but rather the thing that creates the illusion. Is Maya synonymous with our computer simulation?In Vedic teachings, those who devote their lives to meditation and realize this oneness can attain superpowers known as the ''siddhis.'' The siddhis are similar to powers Neo achieves when he wakes up from the Matrix, such as the ability to fly, manifest and control material things, to become invisible, and to be in more than one place at a time.Some of these superpowers, thought to be impossible by many, are starting to become theoretically plausible through discoveries in quantum physics. For example, the ability to manifest material things has been proven in a sense through the famous double-slit experiment which determined that light acts as a particle when we observe it, and as a wave when we don't. This wave-particle duality essentially revealed that our consciousness affects the way light manifests. Quantum physics has also allowed for information to be teleported through quantum entanglement, a process once thought to be impossible.
But for those of us unable to live the ascetic life, short, daily meditation is still a solid method of hacking the simulation in subtler ways. The physical, emotional, and intellectual benefits of meditation have been scientifically proven numerous times, all the way down to the molecular level. If affecting your cells with the power of your mind is isn't a simulation hack, then what is?
Life on the Other Side of the Simulation
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CNN Sues President Trump, White House Officials Over Jim Acosta '' Rolling Stone
Fri, 23 Nov 2018 20:15
In what has become one of the dumbest stories of the year, CNN sued President Trump Tuesday. The litigation alleges the White House did not have grounds to revoke the press credential of reporter Jim Acosta, whom Trump berated during a post-election press conference last Wednesday.
''CNN filed a lawsuit against the Trump Administration this morning in DC District Court,'' read a statement from the network. ''It demands the return of the White House credentials of CNN's Chief White House correspondent, Jim Acosta. The wrongful revocation of these credentials violates CNN and Acosta's First Amendment rights of freedom of the press, and their Fifth Amendment rights to due process. We have asked this court for an immediate restraining order requiring the pass be returned to Jim, and will seek permanent relief as part of this process.''
Acosta had become one of the most publicly recognizable members of the White House press corps, and had developed a reputation for confronting Trump or Press Secretary Sarah Huckabee Sanders on camera. When he pressed Trump last Wednesday about the decision to refer to the caravan of Central American migrants making its way through Mexico as an ''invasion,'' the president refused to answer, prompting an intern to attempt to wrest the microphone from Acosta's hand.
Acosta continued to ask a separate question about the Mueller investigation. Trump called the investigation a ''hoax'' before attacking Acosta. ''CNN should be ashamed of itself having you working for them,'' the president said. ''You are a rude, terrible person. You shouldn't be working for CNN. You're a very rude person. The way you treat [Press Secretary] Sarah Huckabee [Sanders] is horrible. The way you treat other people is horrible.''
Hours after the press conference concluded, Sanders announced in a series of tweets that Acosta's hard pass to cover the White House had been ''suspended'' until further notice. She alleged, absurdly, that the way in which Acosta placed his hands on the intern who tried to take the microphone was ''disgusting'' and ''completely unacceptable.'' Sanders also tweeted a video that had been doctored to make Acosta's contact with the intern appear more violent than it actually was, leading to a frenzy of next-day criticism. Meanwhile, Trump had just fired Attorney General Jeff Sessions and installed his chief of staff, Matthew Whitaker, who has a rich history of criticizing the Mueller investigation, at the top of the Justice Department.
The suit CNN filed on Tuesday names Trump, Sanders, Chief of Staff John Kelly, Deputy Chief of Staff for Communications Bill Shine, Secret Service Director Randolph Alles and the Secret Service officer who took Acosta's credential as defendants. Both CNN and Acosta are listed as plaintiffs. CNN argued in a statement that the lawsuit goes beyond restoring Acosta's credential. ''While the suit is specific to CNN and Acosta, this could have happened to anyone,'' the network said. ''If left unchallenged, the actions of the White House would create a dangerous chilling effect for any journalist who covers our elected officials.''
The White House doesn't seem to mind all the attention its handling of Acosta has drawn away from issues like Trump's firing of Sessions, his threats to House Democrats, his false allegations of voter fraud, his shows of disrespect to veterans or any other number of alarming actions the president has taken since last Tuesday's midterms. ''This is just more grandstanding from CNN, and we will vigorously defend against this lawsuit,'' Sanders wrote in a statement, going on to claim again that Acosta ''physically refused to surrender'' the microphone during the press conference last Wednesday.
Not only was the White House unfazed by the lawsuit, they welcomed it. According to the complaint, CNN made several attempts to reach a resolution with the Trump administration, threatening to sue if Acosta's credential was not returned. These threats were ignored, because as far as the White House is concerned, the longer Trump's feud with Acosta stays in the news, the better. As the Daily Beast points out, several administration officials ''have said that they privately celebrate whenever a Trump vs. Acosta narrative emerges in the national press,'' as if there's one front on which the president has consistently won since taking office, it's his war on the media. This latest tiff with Acosta is just another skirmish to fall in the president's favor, even if '-- or maybe especially if '-- Acosta is able to return to the White House.
Bob Woodward criticizes CNN's Acosta lawsuit, says media's 'emotionally unhinged' about Trump | Fox News
Fri, 23 Nov 2018 20:15
Bob Woodward, the Pulitzer Prize-winning Watergate journalist whose recent book, "Fear," described chaotic infighting at the White House, on Tuesday criticized CNN for filing a lawsuit against the Trump administration and charged that too many media figures "have become emotionally unhinged."
Speaking at the Global Financial Leadership Conference in Naples, Florida, Woodward said "the remedy [isn't suing the administration]. ... It's more serious reporting about what he's doing.'' NBC reporter Dylan Byers first flagged Woodward's comments.
CNN filed a federal lawsuit against the Trump administration on Tuesday demanding that the White House restore the press credential of star reporter Jim Acosta. The administration suspended Acosta's "hard pass," which provided expedited access to the White House grounds, after he broke protocol by refusing to surrender his microphone during a press conference last week.
Acosta continued to pepper Trump with a barrage of declarative statements and questions -- at times talking over Trump -- until the president stepped away from the podium, even though reporters are typically afforded just one follow-up.
''In the news media there has been an emotional reaction to Trump,'' Woodward said. ''Too many people for Trump or against Trump have become emotionally unhinged about this.''
FILE - This June 11, 2012 file photo shows former Washington Post reporter Bob Woodward speaking during an event to commemorate the 40th anniversary of Watergate in Washington.
Woodward added that CNN was taking Trump's "bait" by enlisting high-profile lawyer Ted Olson to pursue a federal case. "This is a negative," Woodward said. "Trump is sitting around saying, 'This is great.'''
That sentiment was echoed in a piece in Rolling Stone on Tuesday by Ryan Bort titled, "CNN Has Played Right Into Trump's Hands."
"Too many people for Trump or against Trump have become emotionally unhinged."
'-- Journalist Bob Woodward
JUDGE NAP: CNN HAS A GOOD CASE AGAINST TRUMP ADMINISTRATION
(Trump fiercely criticized Woodward after his book released earlier this year, saying "he's had a lot of credibility problems.")
CNN's suit alleges that the White House violated Acosta's First and Fifth Amendment rights by punishing him for the content of his speech without providing notice or any due process, although the White House maintains that Acosta was penalized solely because of his behavior.
None of CNN's approximately 50 other "hard pass" holders has lost White House access, nor have reporters belonging to any other liberal-leaning media outlet -- although Trump has suggested that may change.
At the testy press conference the day after last week's midterm elections, Acosta continued to shout questions at Trump even after he tried to move on to another reporter, and he refused to hand the microphone to an intern who tried to retrieve it.
The litigation filed by CNN, which does not fully describe Acosta's actions during the press conference and contains several substantive factual inaccuracies, also asserts that the Secret Service violated the Administrative Procedures Act by taking a final agency action in penalizing Acosta without providing any notice or hearing.
The suit, in arguing that the White House was lying about its motivations for taking action against Acosta, additionally claims that White House Press Secretary Sarah Sanders shared a "doctored" clip of the episode on Twitter. In the low-resolution .GIF clip shared by Sanders, Acosta's arm moves slightly faster than it does in higher-quality footage of the press conference, appearing to show him more forcefully striking the intern's arm as she tries to take the microphone from him.
However, despite reporting from a wide variety of outlets that Sanders had shared a doctored clip, a Buzzfeed analysis suggested the changes in the video could have resulted inadvertently from the conversion of the footage to the lower-fidelity .GIF format, which is commonly used on Twitter. The format produces fewer frames per second than a higher-quality video source, making scenes appear to move faster.
White House officials, including Trump adviser Kellyanne Conway, have acknowledged that the video was indeed "sped up" during the conversion process, while consistently denying that the clip was purposefully doctored.
The lawsuit states that Sanders used a bogus justification by claiming that Acosta had "placed his hands on a young woman just trying to do her job as White House intern."
In responding to CNN's suit, Sanders on Tuesday said that Acosta's behavior had "impeded the ability of the President, the White House staff, and members of the media to conduct business.''
"After Mr. Acosta asked the President two questions'--each of which the President answered'--he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions," Sanders said in statement.
"This was not the first time this reporter has inappropriately refused to yield to other reporters," she continued. "The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional. The First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor."
Fox News' Howard Kurtz and Brian Flood contributed to this report.
The greatest threat to American journalism: the loss of neutral reporting | TheHill
Fri, 23 Nov 2018 19:57
Over the past several months, I've watched, read and heard much about the potential Armageddon facing the profession of journalism.
I've watched colleagues proclaim that ''fake news'' attacks by President Trump Donald John TrumpDems are marking their turf in preparation for primary battle Trump and family hold Thanksgiving dinner at Mar-a-Lago Trump dispute with Roberts spills over into Thanksgiving MORE , crowd chants of ''enemies'' and the expulsion of CNN's Jim Acosta from the White House press room pose the greatest threats to news reporting in history.
I respectfully disagree.
To be fair, there are many dangers I recognize and many fears I see as justified.
Forty-five members of the news media have died in the line of duty this year, according to the Committee to Protect Journalists. The death of Jamal Khashoggi at the hands of a Saudi government seeking to silence his voice is as horrific as it is unconscionable. The mail bombs sent to media outlets also are reprehensible and chilling.
But journalism, sadly, has laid to rest many a brave reporter, here and on foreign soil, and it managed to keep a neutral light of disclosure burning bright in far more difficult times than today.
We journalists have more freedom, more reach, and more ability to inform today than ever before. But with those advantages comes an even greater responsibility to the public, one I fear is being denigrated by journalists who substitute opinion for facts and emotion for dispassion.
Beyond the killings, the threats, and the vitriol, what most threatens journalism today is the behavior of its own practitioners.
We have become too full of our own opinions, too enthralled with our own celebrity, too emotionally offended by warranted and unwarranted criticism, and too astray from the neutral, factual voice our teachers in journalism school insisted we practice.
It was that neutral voice that compelled Americans to welcome television newscasters Walter Cronkite or Peter Jennings into their living rooms each night. It was that commitment to factual reporting without slant that made the morning and evening newspapers mandatory reading.
And it was that relentless but emotionally detached commitment to truth, context and fairness '-- even when enemies sought to discredit us '-- that exposed such wrongs as Watergate, the Tuskegee experiments and the deplorable treatments at Walter Reed Hospital.
The traits that have made journalism great and respected and impactful for most of the past century are sorely lacking in many of today's practitioners.
Instead of facts, many journalists today trade in supposition and opinion. Instead of dispassionate neutral coverage, many have offered emotional rants that border on disrespect. Instead of covering all sides of the story, entire news organizations have chosen to pick one side over another.
And Donald Trump's broadsides have only forced reporters to hunker down even more with these harmful practices.
This self-destructive behavior was on full display this week as professional journalists strayed far from their neutral voice in reporting on '-- and simultaneously condemning '-- Trump's statement on why he chose to maintain good relations with Saudi Arabia despite its role in murdering the journalist Khashoggi.
Fox News anchor Shepard Smith declared: ''President Trump stands with Saudi Arabia. Today the president insulted the murder victim and sided with the Saudis, who said our CIA is wrong.'' On CNN, anchor Brianna Keilar suggested there was little difference in Trump's annual rite of pardoning a Thanksgiving turkey and his treatment of Saudi Arabia.
''And there you have it '-- President Trump pardoning the Thanksgiving turkey, the annual tradition. Peas is the name of this turkey,'' Keilar said on ''CNN Newsroom.''
''And just the most unusual dichotomy here, as this comes on the heels of a statement that the president has put out essentially pardoning Saudi Arabia and the crown prince and the king there, despite what his intel community is expected to put out in a report today that Saudi Arabia is behind, that these leaders of Saudi Arabia are behind the killing of a Washington Post journalist,'' she added.
Such rhetorical flair may make the journalist emotionally satisfied for a moment. But the injection of opinion and insinuation and condemnation disserves the public for a far longer time, depriving viewers and readers of a neutral set of facts upon which to make their own decisions and opinions.
With rare exception, the wise elders of the profession have not spoken up forcefully enough to denounce this creeping cancer of POV journalism, nor stem the demise of the profession's core values of fairness, accuracy, precision and neutrality. In fact, some are gleefully cheering on some of the bad-boy behaviors.
Bob Woodward, my former colleague at The Washington Post, is one of the rare voices of consternation. He quickly recognized that President Trump's double-down battle with the media risked evoking emotional responses from a profession that requires neutrality under fire.
His wise assessment of the Acosta dispute hearkened to the golden values of the journalism era just past.
If you are angry as a journalist, he suggested, don't sue, opinionate or denigrate. Instead, strap on a camera or a notebook and break some meaningful news that illuminates what is wrong without tainting it with the soapbox.
I can put it another way, in the words of my first real mentor in journalism, George Reedy. He used to say, ''You don't use a bullhorn filled with opinion and emotion when a flashlight's illumination of facts will do.''
Show dignity and neutrality as a journalist in the face of adversity, and ditch the swagger and attitude, he preached.
My old Irish aunt once admonished me in a slightly different, but equally effective, way. She used to say, ''If you want to have people listen to your opinion, become a politician. Otherwise, just stick to some damn facts, Mr. Reporter.''
John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists' misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He is The Hill's executive vice president for video.
Dogs are People Too
Pets don't want to be emotional support animals.
Sat, 24 Nov 2018 06:47
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Coalition - Change the Terms - SPLC etc
Fri, 23 Nov 2018 13:53
WE ARE A COALITION OF CIVIL RIGHTS, HUMAN RIGHTS, TECHNOLOGY POLICY, AND CONSUMER PROTECTION ORGANIZATIONS.
Millennials watching A Charlie Brown Thanksgiving think it's racist | Daily Mail Online
Sun, 25 Nov 2018 16:16
Millennials watching A Charlie Brown Thanksgiving for the first time have branded the holiday favorite as racist.
The classic animated special was broadcast on the national holiday, but many claimed that they were left feeling uneasy about how one of the characters was treated.
The episode, which airs annually on ABC, features a holiday meal shared between the characters, after Peppermint Patty invites herself and others to Charlie Brown and Sally's house.
Scroll down for video
The scene viewers found offensive was during the Thanksgiving meal where Franklin, the only black character in the show, was sat by himself at dinner
Although they are planning on heading to their grandmother's house for Thanksgiving dinner, Linus convinces Charlie they have time for two feasts.
But viewers suggested that the fact Franklin, the only black character in the show, is sat by himself on one side of the table by himself is discriminatory.
Another point made was that Franklin had been given a different chair to his friends, as he was sat on a lawn chair rather than a dining chair.
Viewers reacted to the episode suggesting the way Franklin was treated by his friends is racist
Some viewers appeared to be watching the annual episode for the first time, while others seemed to have only just noticed that Franklin was seated by himself.
One Twitter user wrote: 'Am I woke now, why is Franklin in Charlie Brown Thanksgiving sitting all by himself at the table. Man. Things that I did not notice as a child.'
While another questioned also questioned the seating plan, adding: 'How come Franklin, Charlie's only black friend, sits alone on the other side of the table? And in a lawn chair. #Franklin #Charliebrown #CharlieBrownThanksGiving
Fans noted that he was sat on a lawn chair while everyone else had dining chairs
Others took to Twitter to defend the show suggesting that its a 'joke' that people would be offended by the program
A third demanded that they changed the show to seat some of Franklin's friends alongside him or he would no longer watch the holiday classic.
However many were quick to defend the program, highlighting that the show's creator Charles M. Schulz fought to get Franklin into the cartoon.
One man said: 'Seriously please get some historical context. Charles M. Schultz was a trailblazer and bucked racism in those days by adding Franklin to reflect the issue... and challenging what was then going on in society.'
Another dubbed the accusation of racism a 'joke', adding: 'Man, I was just watching this today and I thought, "I wonder why people haven't attributed racism to Franklin having the crappy chair at the Thanksgiving table.' And here it is. What a joke."
The episode first aired on November 20 in 1973 on CBS up until 2000 before it moved to ABC in 2001 and still airs annually.
Franklin was first added into the show by Schultz when a teacher wrote to him and asked for a black child to be included into his cartoon.
Harriet Glickman assured Schultz that something as small as him writing a child of color into his work as the friend of a white child could make a radical impact.
Although Schultz worried that people would consider the new addition as tokenism, Glickman had a solution for this as well.
She asked her friends to write to Schultz and persuade him that the accusation of being patronizing is a small price to pay for the difference he could make.
Years after Franklin was first added into his comic strip, Schultz said that his editor was against the idea, however he told him, 'Well, Larry, let's put it this way: Either you print it just the way I draw it or I quit. How's that?' So that's the way that ended.
The Rockettes are slammed online over the lack of diversity in dancers | Daily Mail Online
Sun, 25 Nov 2018 16:11
The Rockettes braved the cold temperatures on Thanksgiving Day to perform in the Macy's parade as per tradition.
In gold sequined outfits, 36 women took the New York City streets to perform a three-minute Christmas dance routine featuring high kicks, impeccable formation changes and precise dance moves.
But an influx of fans online were unimpressed with the lineup from this year's Rockettes as some said the women lacked diversity in skin color.
Tradition: The Rockettes performed during the Macy's Thanksgiving Day Parade on Thursday on the streets of New York City
Controversy: After the performance, people were commenting online about the lack of diversity in the dance group
Upset: People were mad the group of 36 women still appeared predominantly white
Rigorous: Every year, 80 women are chosen to be in the Rockettes and have to be between the height of 5'6'' and 5'10''
Not having it: One viewer said they only saw two black women in the group and one person who appeared to be of a different ethnicity
Clever: Another person said the performance looked like a white Christmas for the dance group
A vast majority of the women featured in the dance routine were white, which people said is a problem given the progress of diversity within other groups and organizations.
'Every year I'm not surprised to see the Rockettes think only white women, 2 black women, and 1 racially ambiguous one can dance,' one person wrote after they watched the 92nd Macy's Thanksgiving Day Parade.
Their critique seemed warranted considering the lack of diversity during the performance.
But one person came to the defense of the Rockettes and how the group of women are chosen each year through an extensive audition process.
'Wow, people already complaining about the #Rockettes not having many women of color,' the person wrote on Twitter. 'You need to have a certain height and weight to get in, people! It shouldn't be about skin, it should be about how these women practice their whole lives to do something you can only dream of.'
And a MSG spokesperson said: 'The Radio City Rockettes have made the Christmas Spectacular a cherished family tradition that has been beloved for generations. The dance troupe has had a significant amount of diversity over the years, made up of the world's best precision dancers who represent varying ethnicities and nationalities.'
Defensive: Some people didn't have an issue with the diversity on the screen and said the women were chosen based on skill over skin color
There are specific requirements in order to be considered as a member of the Rockettes.
Women have to be between 5'6'' and 5'10'' in height to be considered for a coveted role in the dancing troop.
The height requirement is largely due to the amount of kick lines the women will do throughout their shows. Keeping the members closer in height makes the performances more visually appealing and synchronized.
Poised: In 2017, more than 400 women showed up for auditions to be a Rockette
Unimpressed: People said this lack of diversity in the group happens every year
Concerned: One viewer wanted to know how diversity played a part when picking the dancers
True: One woman targeted people's defense of the group saying NYC is already diverse and believed there should be highly skilled dancers auditioning with a different ethnicity
Confused: People wanted to know how why the lack of diversity was still happening in 2018
In 2017, more than 400 women attended the auditions in hopes they would be chosen for the Rockettes. There are 80 spots open in total.
With these numbers, people found it hard to believe there was not more women who auditioned with the right dance skills that were not of another ethnicity besides white.
'I would think it's be pretty difficult to cast so many white women in NYC for the #Rockettes but they seem to pull it off every year,' one person wrote.
Another said: 'So I'm watching the Rockettes and I notice there's only 2 black women and no Asian women and the rest are white...so that's not cool. Not sure why it's so hard to hire diverse dancers in NYC, AKA the most diverse city in America.'
This statement attacks the defense some had that there just wasn't enough diverse models to fit the bill for what the dance company needed from its 80 members during the audition process.
'I see the Rockettes are literally having themselves a WHITE Christmas,' one person wrote after watching the parade.
But, there could be more diverse dancers in the group since only 36 made an appearance for the parade out of the 80 total members.
Besides performing in the parade, the dancers do annual Christmas Spectacular performances at Radio City Music Hall in NYC.
DailyMail.com has contacted Radio City Music Hall and the Rockettes for a comment.
Deadnaming: What Is It and Why Is It Harmful?
Sun, 25 Nov 2018 12:10
For many '-- though not all '-- people who are transgender, undergoing a name change can be an affirming step in the transition process. It can help a person who's transgender and the people in their lives begin to see them as the gender they know themselves to be. It can also alleviate discomfort that may be associated with one's old name.
Unfortunately, many people may struggle to adhere to a trans person's new, affirmed name. In some situations, other people may refuse to acknowledge the change altogether. And in situations that involve government-issued identification, having a legal name that doesn't align with one's affirmed name can cause staff and personnel to inadvertently refer to a trans person by the wrong name.
This is what's referred to as deadnaming.
Deadnaming occurs when someone, intentionally or not, refers to a person who's transgender by the name they used before they transitioned. You may also hear it described as referring to someone by their ''birth name'' or their ''given name.''
This can occur anywhere in a trans person's life, from personal relationships to the classroom or workplace.
When you refer to a person who is transgender by their non-affirmed name, it can feel invalidating. It can cause them to feel like you don't respect their identity, you don't support their transition, or that you don't wish to put forth the effort to make this necessary change.
If you do so in front of a friend who doesn't already know that trans person, it can effectively ''out'' them, or signal to your friend that they're transgender. This may or may not be something that they want other people to know.
Not only can being outed cause stress, it can also subject that person to harassment and discrimination.
People who are transgender experience discrimination across the board, particularly if they're known, believed, or discovered to be transgender. The National Center for Transgender Equality's 2015 U.S. Trans Survey found that 46 percent of transgender people surveyed had been verbally harassed '-- and 9 percent had been physically assaulted '-- just for being transgender.
Due to discrimination in both housing and employment, 30 percent reported having experienced homelessness at some point in their lives. Another 30 percent reported having been discriminated against in the workplace or with prospective employers.
Completing a legal name change can help people who are transgender avoid everyday deadnaming when presenting their IDs, whether it's at the hospital, at school, or at your neighborhood bar. However, attaining a legal name change can be time-consuming, expensive, and subject trans people to further discrimination.
And '-- even when the process is complete '-- records of a person's dead name can still exist in records and databases.
Take Dylan's experience, for example. He made an emergency visit to the hospital where he was born. When he arrived, the staff matched his social security number to his birth records. Despite his legal name change, they addressed him with confusion.
According to the 2015 U.S. Trans Survey, only 11 percent of people surveyed had their affirmed name on all of their government-issued IDs. Of the survey's respondents, 35 percent reported that they were unable to pursue a legal name change because of how expensive it is. And of those who had legally changed their names, 34 percent reported that they had spent over $250 to do so.
With legal name changes being expensive, inaccessible, and not completely effective at eliminating deadnaming, it's important for institutions to put their own practices into place to support trans people.
So, what can institutions such as schools and hospitals do to prevent deadnaming?The Gay and Lesbian Medical Association recommends:
Institutions can develop a process to update their records with a trans person's affirmed name without requiring a legal name change. This process should update records seamlessly across all of the institution's databases to prevent confusion and potential deadnaming.If a legal name is required for forms or paperwork, create a separate space for people to put the name that they use in their everyday lives.Hire a trans-led organization to provide sensitivity trainings to staff and personnel. Deadnaming is a common practice in the media, whether in print, online, or on screen. It can happen to people who have undergone transition in the public eye, like musician Laura Jane Grace. It can also happen to people who have experienced newsworthy harassment and discrimination, including fatal violence.
The National Coalition for Anti-Violence Projects reports a startling 29 percent increase in anti-LGBTQIA homicides from 2016 to 2017. About 75 percent of the lives taken in 2017 were those of transgender people of color.
In nearly all cases, at least one media outlet had initially referred to the victim using their dead name. Sometimes, the outlet used both their dead name and their affirmed name. Examples include the cases of Mesha Caldwell, Jojo Stryker, and Ciara McElveen.
The AP Style Guide now recommends that reporters, ''Use the name by which [the] transgender person now lives'' unless using their dead name is relevant to the story, while Reuters recommends that reporters, ''Always use a transgender person's chosen name.''
Although many trans people would prefer to not have their dead name used at all, and while the use of ''chosen'' to describe a trans person's name isn't ideal, these style guides set a precedent among media professionals to respect transgender people's affirmed names.
What else can media outlets do to prevent deadnaming?Common recommendations include:
If you have access to the person you're reporting on, ask them. If you have access to first-hand accounts such as interviews or articles, follow the way they refer to themselves.If the person isn't available to speak for themselves, reach out to the people who are closest to them to ask their name and pronouns. Remember that family members may not always be supportive, and therefore may not be the best resource.GLAAD's helpful Media Reference Guide encourages reporters to use the active voice when discussing a trans person's name. For example, write ''the person's name is X'' as opposed to ''the person goes by X'' or ''the person prefers to be called X.''If you've used the wrong name, issue a retraction and update your records wherever possible. Thankfully, unlearning deadnaming as a behavior is fairly simple. It's also a great way to show support for the trans people in your life and in your community.
You canAsk the trans person in your life their name or what they'd like to be called, just as you might ask someone their nickname.Use that name for them in all situations. It will help you get used to it, and signal to the people around you how to correctly refer to your friend.Never ask a trans person to reveal their dead name to you.Know that it's okay to mess up. We all make mistakes, and as you learn your friend's new name, it's likely you'll get it wrong sometimes. The best thing you can do if you use the wrong name for them is to correct yourself and quickly move on. You deserve to be treated with dignity and respect, including being referred to by your affirmed name.
If you're going into a situation where your dead name might come up, ask a supportive friend to come with you. If someone deadnames you, your friend can talk to that person and advocate for you, if desired.
You can also get help changing your government-issued IDs, if you wish to do so. There are a number of organizations that offer free or low cost assistance with ID changes.
Some great resources for this include:
National Center for Transgender Equality's ID Change ResourceTransgender Law Center's Identity Documents ResourceSylvia Rivera Law Project's How to Change Your IDs Whether you're a medical professional, reporter, teacher, friend, or family member, moving past deadnaming is an important and easy way to show support for the trans people in your life and in your community. Doing so will set a powerful example for the people around you and create a safe and welcoming environment for the trans people in your life.
KC Clements is a queer, nonbinary writer based in Brooklyn, NY. Their work deals with queer and trans identity, sex and sexuality, health and wellness from a body positive standpoint, and much more. You can keep up with them by visiting their website, or finding them on Instagram and Twitter.
Twitter bans misgendering and deadnaming in pro-trans move - PinkNews · PinkNews
Sun, 25 Nov 2018 12:07
Twitter has prohibited misgendering and deadnaming on its platform in an effort to curtail anti-trans abuse.
The social media company has changed its rules to ban the practices and has warned that any user who deliberately targets a trans person in these ways may face permanent suspension.
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These offensive techniques'--which involve using the wrong gender to refer to a trans person or a trans person's old name'--are often used on Twitter to insult and erase trans people's identities and right to exist.
''We recognise that if people experience abuse on Twitter, it can jeopardise their ability to express themselves'''-- Twitter's new terms of service
Trans people have suffered high levels discrimination under the Trump administraton, including online (Drew Angerer/Getty)In Twitter's updated terms of service, the company states: ''We prohibit targeting individuals with repeated slurs, tropes or other content that intends to dehumanise, degrade or reinforce negative or harmful stereotypes about a protected category.
''This includes targeted misgendering or deadnaming of transgender individuals.''
The move, which was made in late October but only broadly noticed on the platform on Friday (November 23), also involved adding a section in which Twitter acknowledges that LGBT+ people suffer abuse online more than most.
''We recognise that if people experience abuse on Twitter, it can jeopardise their ability to express themselves,'' the paragraph begins.
Misgendering and deadnaming have long been used to abuse trans users on Twitter (Pexels)''Research has shown that some groups of people are disproportionately targeted with abuse online.
''This includes; women, people of colour, lesbian, gay, bisexual, transgender, queer, intersex, asexual individuals, marginalised and historically underrepresented communities,'' it continues.
''For those who identity [sic] with multiple underrepresented groups, abuse may be more common, more severe in nature and have a higher impact on those targeted.''
The social media giant has also created a new section of its terms of service, called ''Consequences,'' in which explains the actions it is pledging to take against offenders.
Twitter has promised to permanently suspend any account which breaks the rules too many times or is ''engaging primarily in abusive behaviour''(Drew Angerer/Getty)Twitter has promised to permanently suspend any account which either breaks the rules too many times or is ''engaging primarily in abusive behaviour.''
Users who are ''deemed to have shared a violent threat'' will also be banned from the platform, the company has stated.
Pro-trans users welcome ban on misgendering and deadnamingMany Twitter users have praised the change, which they hope will lead to more abusive accounts being suspended or banned completely.
One tweeted: ''nb deadnaming and misgendering are now prohibited on Twitter. which is very good news!''
Another said: ''Excellent news everyone: Twitter has finally updated their TOS such that misgendering/deadnaming a trans person is against the site's rules. Happy hunting.''
''Excellent news everyone: Twitter has finally updated their TOS such that misgendering/deadnaming a trans person is against the site's rules. Happy hunting'' (HoldenShearer/twitter)''I was skeptical (because it's twitter) but yeah, the TOS is pretty clear. Repeated misgendering and/or deadnaming is specifically listed. Excellent,'' tweeted yet another fan of the policy shift.
However, there was also hesitancy from many who doubted that the changes in Twitter's terms of service would be enforced when abusive users were reported.
One such user wrote: ''Good start. We'll have to see if reporting is meaningful or the policy enforced.''
Some were sceptical whether the move to ban misgendering and deadnaming would make a difference (Twitter)Another tweeted: ''like they'll ever enforce it seriously.''
And a different user commented: ''apparently twitter updated its rules to specify that targeted deadnaming and misgendering of trans people isnt allowed but im calling it now that they wont enforce this rule.''
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'Warped views on reality': private schools are banning mobile phones
Fri, 23 Nov 2018 12:44
'Warped views on reality': private schools are banning mobile phones
Skip to sections navigationSkip to contentSkip to footerNewington College has joined a growing number of schools banning mobile phones, saying they lead to lower concentration, higher stress and "warped views on reality".
The inner west school told students to keep phones in their lockers from the beginning of term four after an attempt to encourage boys to use them responsibly failed.
But bans remain divisive, with both the NSW P&C and teachers union telling a NSW government review into smartphones in schools that they were useful for learning and educators should help students use them constructively.
Newington College has banned mobile phone use during school hours Credit: Steven Siewert
Newington joins schools such as Shore, Tara Anglican School for Girls and Deniliquin High School, a public school in the Riverina, in banning phones.
Until mid-October, Newington's policy was that students could carry their phones on them but that they should be neither seen nor heard during the school day. Some students made "good and autonomous decisions ... many have had difficulty in this regard," the notification to parents read.
So from term four, phones were to be left in lockers, and messages could be checked briefly at lunch and recess. Parents were told to contact their sons through the college's reception office.
The decision was based on research showing that when people carried phones with them, they could display lower concentration due to constant interruptions, increased fear of missing out, reduced memory, warped views on reality and increased stress.
"The college believes that students will gain greater academic and social benefits from not having their mobile phone on their person during the school day," the notice said. The policy would be reviewed during the term, and might be extended to smart watches.
Tara has required devices to be left at home or in lockers since the beginning of the year. "We have been very pleased with the increased physical activities and the broadening of the lunchtime clubs the girls are participating in," said principal Susan Middlebrook.
"The best part is the delight in the increase in morning tea and lunchtime conversation. Everyone is engaged with each other and not a screen now.''
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Deniliquin High's ban began in July. "It was fabulously noisy in the yard today as student were busy talking to each other at recess and lunch instead of playing on their phone," the school Tweeted on the first day of the ban.
Shore School has banned mobile phone use since 2005. "[We] feel that there is too much expectation placed upon mobile devices in the context of learning, said headmaster Tim Wright. "They are useful tools but terrible masters, often leading to short circuits in thinking and research."
NSW government has commissioned a review of the non-educational use of mobile devices in NSW schools. Submissions have closed, and the head of the review, child psychologist Michael Carr Gregg, will report early next year.
The recommendations will be a guide for schools; they will not be compulsory. Schools will continue to set their own rules, and many public schools have a Bring Your Own Device policy that lets students use them for lessons.
In its submission to the review, the NSW Teachers Federation described smart phones as the next iteration of personal computers, and said they were needed to fill the gap because public schools were not given money to supply computers.
The NSW P&C said educating parents and students about the safe and responsible use of mobile devices would be more effective than a ban.
Matt Bower, an expert in digital technology in the classroom at Macquarie University, agreed schools should work with students to develop healthy digital habits. "A more balanced approach may be to advise phones are switched off in classes, if not being used for educational purposes."
Jordan Baker is Education Editor of The Sydney Morning Herald
Khashoggi
Turkish paper: CIA had recording of Saudi prince demanding Khashoggi be 'silenced' | Article [AMP] | Reuters
Fri, 23 Nov 2018 05:06
Thu Nov 22, 2018 / 3:36 PM EST
ISTANBUL (Reuters) - A Turkish newspaper reported on Thursday CIA director Gina Haspel signaled to Turkish officials last month that the agency had a recording of a call in which Saudi Arabia's crown prince gave instructions to "silence" Saudi journalist Jamal Khashoggi.
Asked about the report, a Turkish official told Reuters he had no information about such a recording. Saudi Arabia has said Crown Prince Mohammed bin Salman had no prior knowledge of Khashoggi's killing at the Saudi consulate in Istanbul six weeks ago.
When asked about the recording by reporters in Florida, U.S. President Donald Trump said, "I don't want to talk about it. You'll have to ask them." The CIA declined to comment when asked about the report.
"There is talk of another recording," Hurriyet newspaper journalist Abdulkadir Selvi wrote in a column, saying the purported call took place between Prince Mohammed and his brother, Saudi Arabia's ambassador to Washington.
"It is being said that CIA chief Gina Haspel indicated this during her visit to Turkey," he wrote, adding that they had discussed Khashoggi, a critic of the kingdom's de facto ruler.
"It is being said the crown prince gave orders to 'silence Jamal Khashoggi as soon as possible'," in a call which was monitored by the U.S. agency, he said.
Khashoggi was killed at the Saudi consulate in Istanbul on Oct. 2 in an operation that Turkey's President Tayyip Erdogan has said was ordered by the highest level of Saudi leadership.
After offering numerous contradictory explanations, Riyadh said last week Khashoggi had been killed and his body dismembered when negotiations to persuade him to return to Saudi Arabia failed.
Trump said the CIA had not definitively concluded that the crown prince was responsible, and said he would stand by Saudi Arabia's leadership because it was a key U.S. ally.
''We want low oil prices and Saudi Arabia has really done a good job in that respect,'' Trump said.
"I hate the crime. I hate what's done. I hate the cover up. And I tell you what: the crown prince hates it more than I do," Trump said, without providing further detail.
(This story has been refiled to correct "print" to "prince" in final paragraph.)
(Reporting by Dominic Evans, Additional reporting by David Brunnstrom in Washington and Roberta Rampton in Palm Beach, Florida; Editing by David Dolan, William Maclean and Nick Zieminski)
Clips
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VIDEO - Chaos erupts in Paris after protesters face-off against police | Euronews
Sun, 25 Nov 2018 12:56
Saturday was a very tense day on the Champs Elysees in Paris.
Clashes erupted between police and some Yellow Vest protesters. Authorities used water cannons and tear gas for several hours to counter the most radical protesters.
While many regret these incidents, others believe these methods are the only way to be heard by the government.
"Honestly what they are doing '... there are certainly some rioters but we are not responsible for that. We are just here to be heard," said one woman wincing at thunderflash grenades going off nearby.
"The problem in France is that we don't have a choice. If we want something, we need to fight for it. They don't listen to us anymore," complained one man.
Emmanuel Macron was the main target of the thousands of Yellow Vests gathered this Saturday. But apart from the president, the whole French political class has been criticised by demonstrators.
"I'm demonstrating because it's not possible anymore. I'm retired and we can't make ends meet anymore, it's not possible. And I don't understand why the members of parliament, the senators, have all these privileges. We don't diminish their salaries," said one woman.
A younger man was more blunt:
"Who do they think we are? What are we? What are we? Are we sheep? What are we? Are we the dogs of French society? Is that why our ancestors fought?"
What started off as a movement against taxes on fuel morphed into a larger gathering against other types of tax, as well as to denounce the cost of living in France and social inequality.
But without a central structure, nor official representatives, the Yellow Vests seem divided over what to do next.
"We need a citizens' assembly. Citizens need to make the votes, referendums. We are the ones that should have a voice," suggested one woman.
"Now that we started rising up, we need to step up the movement. Macron won't stop until we face him with a general strike, clearly," said another, convinced that more action would follow.
"We haven't decided on the future of the movement. We are just trying to be heard. We hope to be received by the members of government to make our messages heard," said one of the protest organisers, Priscillia Ludosky.
The yellow vests we met this Saturday say they will come back to protest in Paris, as long as their claims are not taken seriously by the government, reports euronews' Bryan Carter, from Paris.
VIDEO - Was Moon Landing Real? Russia Plans New Flight to Find Out
Sat, 24 Nov 2018 20:18
Russia's space agency plans to send a mission to the moon to check whether the American moon landings were real.
In a video posted to Twitter on Saturday, Dmitry Rogozin, the Director General of Roscosmos, said: "We have set this objective to fly and verify whether they've been there or not.''
Rogozin announced the project after he was asked whether he believed NASA landed on the moon in 1969. The agency head shrugged as he answered, making it unclear whether or not he was joking.
Read more: Psychologists discover deluded people and religious fundamentalists more likeyl to believe fake news
This isn't the first time a Russian official has questioned whether the moon landings were faked.
In 2015, Vladimir Markin, a spokesman for the government's Investigative Committee said he would support an probe aimed at plugging some apparent gaps in the moon landing story. The article was written in response to the U.S. launching a corruption investigation into officials at FIFA, the world soccer governing body.
In a piece for the Russian newspaper Izvestia he wrote he wanted to understand why the original footage from the landing some five decades ago vanished, and to confirm the location of lunar 400kg rock brought back to Earth over a number of missions between 1969 and 1972.
''U.S. prosecutors having declared themselves the supreme arbiters of international football affairs,'' he said.
''We are not contending that they did not fly [to the moon], and simply made a film about it. But all of these scientific '-- or perhaps cultural '-- artifacts are part of the legacy of humanity, and their disappearance without a trace is our common loss. An investigation will reveal what happened,'' a translation by the Moscow Times quoted Markin as writing at the time.
The idea that the moon landing was faked is one of the most common conspiracy theories. For decades, conspiracists have pored over footage and photos from the historic day to find evidence it never happened at all. Some believe the whole thing was staged in a studio.
Last year, one such moon landing skeptic flagged an image apparently taken in December 1972 of the final Apollo 17 moon mission, citing it as proof that the landings were faked.
In a YouTube video, user Streetcap1 claimed the reflection of a ''stagehand'' is visible on an astronaut's helmet.
''I thought it looked a bit strange, so I took a picture of it using my software,'' Streetcap1 said in the video.
Aware of such claims, experts have sought to combat the conspiracies with scientific evidence.
"A vast weight of evidence supports the fact that humans really did land on the Moon multiple times between 1969 and 1972," the U.K.'s National Space Centre writes on its website.
"But it is important to question and think critically about events of this scale '' and sometimes researching and puzzling out the answers can be half the fun!"
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VIDEO - 'Macron must resign': Furious protests at rising fuel prices across France
Sat, 24 Nov 2018 13:45
Police in Paris have used tear gas and water cannon to disperse protesters who are furious over rising fuel costs.
Demonstrations and road blockades have been planned nationwide as the "yellow vest" protests enter a second weekend. They have been named after the fluorescent jackets worn by protesters, which motorists must keep in their cars by law.
Image: Two people have been killed in the protests so farIn the capital, hundreds descended on the Champs Elysee, where officers stopped them from advancing to the presidential palace nearby.
Some of the protesters were singing the national anthem, while others brandished placards demanding the resignation of French President Emmanuel Macron and calling him a "thief".
Image: The majority of French people support the protests, according to a pollThey are opposed to the taxes that Mr Macron introduced last year on diesel and petrol, which are designed to encourage people to use more environmentally friendly forms of transport.
The price of diesel has risen 23% in the past 12 months, while Mr Macron's approval rating has sunk as slow as 21% in recent opinion polls.
Image: There were tense scenes in Paris as protesters tried to reach the Elysees PalaceAway from the capital, highways have been blocked - with burning barricades and convoys of slow-moving trucks obstructing access to fuel depots, shopping centres and factories.
Two people have been killed in the protests so far, including a 62-year-old woman who was run over by a motorist who panicked after her car was surrounded by demonstrators.
Image: Protesters are furious at the rising price of diesel - with some calling Emmanuel Macron a 'thief'A poll this week indicated that 73% of people in France have expressed support for the protests, which have been characterised as a grassroots movement lacking in clear leadership.
Last weekend's demonstrations attracted an estimated 250,000 people.
Image: Water cannon has been deployed to disperse the protestersMr Macron has admitted that he has "not succeeded in reconciling the French with their leaders" and had "not given them enough consideration", but is standing firm and refusing to rescind the fuel taxes.
One protester, Esteban, told Sky News last week that he was considering taking a second job to pay for his transport, and believed fuel tax increases, imposed as part of Mr Macron's anti-fossil fuel strategy, were "for the money".
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VIDEO - Climate change report: Al Gore says Trump administration seeks to "bury" climate report by releasing it on Black Friday - CBS News
Sat, 24 Nov 2018 06:34
NEW YORK -- Environmental groups and activists blasted the White House this week, saying it was trying to "bury" a long-awaited government report on climate change by releasing it on Black Friday, the day after Thanksgiving. Among those who spoke out was former Vice President Al Gore , who became the face of the climate debate with the 2006 documentary "An Inconvenient Truth."
"Unbelievably deadly and tragic wildfires rage in the west, hurricanes batter our coasts '-- and the Trump administration chooses the Friday after Thanksgiving to try and bury this critical U.S. assessment of the climate crisis," Gore said in a statement Friday. "The President may try to hide the truth, but his own scientists and experts have made it as stark and clear as possible."
The National Climate Assessment, which is mandated by law, was written by outside scientists and officials from 13 federal agencies. It says Earth's climate is now changing faster than ever, primarily as a result of human activities. It also warns that extreme weather and climate-related events, like wildfires and hurricanes, are worsening in the U.S.
My statement on the National Climate Assessment released today: https://t.co/fltD5DOmoy pic.twitter.com/PLpGCnaUc0
'-- Al Gore (@algore) November 23, 2018Releasing information on a Friday afternoon or around a holiday is widely seen as a way to minimize the amount of attention it might get.
The report was long scheduled for release in December, but the National Oceanic and Atmospheric Administration announced on Wednesday -- the eve of the Thanksgiving holiday -- that it would be released on Black Friday, widely regarded as the beginning of the Christmas shopping season. It was unclear why the date was moved up.
"It's an absolute disgrace to bury the truth about climate impacts in a year that saw hundreds of Americans die during devastating climate-fueled megafires, hurricanes, floods, and algal blooms," National Wildlife Federation president and CEO Collin O'Mara said in a statement.
It's beyond disgraceful to bury the truth about climate impacts in a year where many Americans died during climate-fueled megafires, hurricanes, floods & algal blooms
RT to urge news outlets to give the National Climate Assessmnt the attention it deserveshttps://t.co/2Hx32Pw8Sf
'-- Collin O'Mara (@Collin_OMara) November 21, 2018Study co-author Andrew Light, an international policy expert at the World Resources Institute, told The Associated Press that releasing the report on Black Friday "is a transparent attempt by the Trump Administration to bury this report and continue the campaign of not only denying but suppressing the best of climate science."
Deputy weather editor Angela Fritz of The Washington Post, David Doniger, senior climate policy director at the Natural Resources Defense Council, and environmental social scientist Philip Loring were also critical of the report's timing.
The report is the second volume of the Fourth National Climate Assessment or NCA4, which NOAA said is designed to be "an authoritative assessment of the impacts of climate change on the U.S. and its territories, and was written to help decision-makers, utility and resource managers, public health officials, emergency planners, and other stakeholders better understand the effects of climate change on the United States."
Volume I of the assessment, which concluded that it was "extremely likely" that climate change has been caused by humans, was released last November.
The newly released report frequently contradicts President Donald Trump. The Trump administration and many elected Republicans have frequently said they can't tell how much of climate change is caused by humans and how much is natural.
Mr. Trump announced last year his intention to withdraw the U.S. from the landmark Paris climate agreement, which requires countries to establish ambitious targets to reduce the greenhouse gasses that cause global warming.
Last month on "60 Minutes," Lesley Stahl asked Mr. Trump if he still thought climate change was a hoax, as he asserted in 2012 .
"I think something's happening. Something's changing and it'll change back again," Mr. Trump told Stahl. "I don't think it's a hoax. I think there's probably a difference. But I don't know that it's manmade," Mr. Trump said.
"I will say this: I don't want to give trillions and trillions of dollars. I don't want to lose millions and millions of jobs."
As millions of Americans braced for record-breaking cold temperatures on Thanksgiving, the president tweeted: "Brutal and Extended Cold Blast could shatter ALL RECORDS - Whatever happened to Global Warming?"
Brutal and Extended Cold Blast could shatter ALL RECORDS - Whatever happened to Global Warming?
'-- Donald J. Trump (@realDonaldTrump) November 22, 2018 (C) 2018 CBS Interactive Inc. All Rights Reserved.
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VIDEO - As Facebook's crises mount, Mark Zuckerberg stands his ground in exclusive CNN interview - CNN
Fri, 23 Nov 2018 05:10
By Seth Fiegerman, CNN Business
Updated 9:04 AM EST, Wed November 21, 2018
New York (CNN Business) After spending much of this year apologizing for Facebook's many missteps, CEO Mark Zuckerberg was defiant in an exclusive interview with CNN Business on Tuesday.
Zuckerberg resisted growing calls for changes to Facebook's C-suite, reiterated Facebook's potential as a force for good, and pushed back at some of the unrelenting critical coverage of his company after a year of negative headlines about fake news, election meddling and privacy concerns.
"A lot of the criticism around the biggest issues has been fair, but I do think that if we are going to be real, there is this bigger picture as well, which is that we have a different world view than some of the folks who are covering us," Zuckerberg told CNN Business' Laurie Segall at Facebook's headquarters in Menlo Park, California.
"There are big issues, and I'm not trying to say that there aren't," he said. "But I do think that sometimes, you can get the flavor from some of the coverage that that's all there is, and I don't think that that's right either."
The interview follows renewed criticism of Zuckerberg and Facebook after a New York Times investigation last week suggested the company had attempted to ignore and conceal Russian interference on its platform. The Times also reported that Facebook had hired a public relations firm that dug up dirt on its competitors.
Zuckerberg was more pointed when addressing the Times report specifically. "It is not clear to me at all that the report is right," he said. "A lot of the things that were in that report, we talked to the reporters ahead of time and told them that from everything that we'd seen, that wasn't true and they chose to print it anyway."
In one exchange, Zuckerberg addressed an assertion in the Times story about why Facebook's executives decided not to remove a particularly controversial 2015 post from then presidential candidate Donald Trump about Muslim immigration.
When asked if the decision was motivated by a desire to appease political leaders, Zuckerberg flatly said no. "I think it's very important that people have the opportunity to hear from what political leaders are saying," he said. Facebook's content policies give "special deference" to newsworthy content, he said. "I think we did the right thing there."
A spokesperson for the Times previously defended the article in a statement after Facebook disputed the report: "Our story is accurate and we stand by it. The monthslong investigation by a team of reporters was based on interviews with more than 50 sources including current and former Facebook executives and other employees, lawmakers and government officials, lobbyists and congressional staff members."
Zuckerberg has reportedly been even more blunt in his assessment inside the company. The Wall Street Journal reported this week that Zuckerberg told employees that recent coverage of Facebook is "bullshit."
Even before the Times investigation, Zuckerberg and Facebook struggled to move past a series of crises, including Russian election meddling, the Cambridge Analytica data scandal, and a massive security breach impacting tens of millions of users.
Facebook stock has plummeted 40% from its all-time high in July as investors worry about the long-term privacy backlash and the company's warnings that its ad sales machine could slow as it "puts privacy first."
Yet, Zuckerberg implied that little is likely to change at the very top of the company anytime soon. When asked if he would consider stepping down as Facebook's chairman, Zuckerberg said, "that's not the plan." He also threw his support behind his No. 2, Chief Operating Officer Sheryl Sandberg, despite criticism of her role in handling Facebook's recent crises.
"Sheryl is a really important part of this company and is leading a lot of the efforts for a lot of the biggest issues that we have," Zuckerberg told CNN Business. "She's been an important partner to me for ten years. I'm really proud of the work that we've done together and I hope that we work together for decades more to come."
For years, Zuckerberg preached the importance of Facebook's efforts to connect the world. On Tuesday, he doubled down on the benefits of that mission despite revelations over the past year about the dark sides of the platform he built in a dorm room when he was 19 years old.
"I think the world will keep moving in this direction. More people will keep on getting a voice. I think that that's good," Zuckerberg said. "There are certainly going to be issues that we need to work through over time, but I think that while we are doing that, we can't lose sight of all of the really positive things that are happening here as well."
CNN Business' Donie O'Sullivan contributed to this report.
STORIES
MRSC - Safe Parking Programs: A Safe Place to Sleep in Your Car
Sun, 25 Nov 2018 16:05
March 14, 2018 by Oskar Rey Category: Homelessness
A King County Superior Court judge ruled earlier this month that the City of Seattle should not have impounded a vehicle that served as a residence for its owner. The judge ruled that the owner had homestead rights in the vehicle pursuant to chapter 6.13 RCW because it was his residence.
While Seattle has said it will appeal, the decision illustrates a practical reality'--there are a lot of homeless individuals living in vehicles and there is a shortage of places to legally park those vehicles. For example, the 2017 Seattle/King County Point-in-Time Count of Persons Experiencing Homelessness found that 2,314 people were living in cars, vans and RVs, which amounts to 20% of King County's homeless population.
Safe parking programs'--which are often sponsored by churches and other types of religious organizations'--are one tool for providing relief to individuals living in vehicles. While safe parking programs are not a permanent solution, they can provide safety for individuals residing in vehicles and better access to support and social services.
This article explores the regulatory role of local government when a religious organization seeks to establish a safe parking program on its property.
What are Safe Parking Programs and how are they Regulated?Safe parking programs allow individuals living in vehicles to park in off-street parking lots. Such programs are often provided by religious organizations as part of their efforts to minister to those in need. When a municipality receives a request to establish a safe parking program in its jurisdiction, it raises the question: to what extent should safe parking programs be regulated?
Regulation of safe parking programs raises concerns both about religious rights and the need to minimize impacts of such programs on the neighborhood. As a result, any requirements or conditions imposed should be necessary to protect public health and safety, and care should be taken to not unduly burden a religious organization's ability to care for the homeless.
Temporary Encampments Present a Useful AnalogyA starting point for analysis is the case of City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633, 211 P.3d 406 (2009), which involved temporary homeless encampments on church property.
A church applied for a temporary use permit for such an encampment. The City refused to process the permit because there was a moratorium in place in the zone in which the church was located. The court analyzed the City's actions under Article I, Section 11 of the State Constitution, which provides broader protection of religious rights than the US Constitution. The court ruled that refusing to process the permit amounted to a substantial burden on the church's religious rights for which there was no compelling government interest.
The court drew a distinction between requiring a permit, and refusing to process an application. Requiring a permit with reasonable conditions related to public health and safety does not violate Article I, Section 11 of the State Constitution.
After Northshore was decided, the legislature adopted ESHB 1956, which created RCW 35.21.915, (non-code cities), RCW 35A.21.360 (code cities) and RCW 36.01.290 (counties) in 2011. These statutes (which are substantially similar) apply to ''temporary encampments.'' The statutes specify that any conditions imposed by cities and counties must be necessary to protect public health and safety and must not substantially burden the decisions or actions of a religious organization regarding the location of housing or shelter for homeless persons on property owned by the religious organization.
Legislative Intent Demonstrates Support for Working with Religious OrganizationsAlthough the terms of these statutes do not directly apply to a permanent safe parking program, the statement of legislative intent in ESHB 1956 (section 1) suggests that legislative concern extends beyond temporary encampments:
The legislature finds that there are many homeless persons in our state that are in need of shelter and other services that are not being provided by the state and local governments. The legislature also finds that in many communities, religious organizations play an important role in providing needed services to the homeless, including the provision of shelter upon property owned by the religious organization. By providing such shelter, the religious institutions in our communities perform a valuable public service that, for many, offers a temporary, stop-gap solution to the larger social problem of increasing numbers of homeless persons. This act provides guidance to cities and counties in regulating homeless encampments within the community, but still leaves those entities with broad discretion to protect the health and safety of its citizens. It is the hope of this legislature that local governments and religious organizations can work together and utilize dispute resolution processes without the need for litigation.
Putting it all together, municipalities may regulate safe parking programs to the extent necessary to protect public health and safety. To the extent possible, a municipality should work with religious organizations to ensure that conditions imposed do not substantially interfere with religious exercise.
About Oskar Rey Oskar Rey has practiced municipal law since 1995 and served as Assistant City Attorney for the City of Kirkland from 2005 to 2016, where he worked on a wide range of municipal topics, including land use, public records, and public works. Oskar is a life-long resident of Washington and graduated from the University of Washington School of Law in 1992.
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This Space Startup Could Lace the Atmosphere With Toxic Mercury - Bloomberg
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With a smirk, official says Russia will verify moon landings
Sun, 25 Nov 2018 15:52
FILE - In this file photo from June 6, 2018, Roscosmos state space corporation head Dmitry Rogozin, accompanies new International Space Station crew members, to the rocket prior to the launch at the Russian leased Baikonur cosmodrome in Kazakhstan. Rogozin said in a video posted to Twitter on Saturday, Nov. 24, 2018, that a proposed Russian mission to the moon will be tasked with verifying that the American moon landings were real, though he appeared to be making a joke. (AP Photo/Dmitri Lovetsky, Pool Photo via AP, File)
MOSCOW (AP) '-- The head of Russia's Roscosmos space agency has said that a proposed Russian mission to the moon will be tasked with verifying that the American moon landings were real, though he appeared to be making a joke.
''We have set this objective to fly and verify whether they've been there or not,'' said Dmitry Rogozin in a video posted Saturday on Twitter.
Rogozin was responding to a question about whether or not NASA actually landed on the moon nearly 50 years ago. He appeared to be joking, as he smirked and shrugged while answering. But conspiracies surrounding NASA's moon missions are common in Russia.
The Soviet Union abandoned its lunar program in the mid-1970s after four experimental moon rockets exploded.
Clinton, Blair, Renzi: why we lost, and how to fight back | World news | The Guardian
Sun, 25 Nov 2018 15:49
Hillary Clinton, Tony Blair, Matteo Renzi: three of rightwing populism's greatest scalps.
Clinton admits she was left dumbfounded by her 2016 election defeat at the hands of Donald Trump. Renzi's centre-left party was defeated this year after a surge in the anti-establishment vote in Italy, a country he calls ''the incubator'' of populism.
Blair may not have lost at the ballot box, but his legacy, particularly on Europe, was upended in the Brexit referendum.
All three are shunned by sections of their own party that accuse them of being responsible for the failure of the centre-left to offer a sufficiently radical alternative.
But all three are still thinking deeply about rightwing populism '' its causes and the threat it poses '' the mistakes of the centre left, including their own, and how modern politics appears to be mobilising resentment towards a perceived elite.
This much emerges from conversations with each, conducted in October and November, as part of the Guardian's six-month exploration of the surge in populism around the world.
Why populism embedClinton was speaking in the quiet of her midtown New York offices, just before the midterm elections. She admitted to still being ''absolutely dumbfounded'' by her defeat, and reflected on the sudden appeal of combative, supposedly straight-talking candidates who, she said, spoke to people's emotions, not their reason.
''Strength right now seems really attractive, and there's not enough of an awareness, or reminders, about what that can lead to,'' she said. ''There is this tension '' I don't fully understand it, I think it's as much psychological, maybe more than political '' as to what people are yearning for. I mean, freedom is burdensome. It's hard getting up and taking responsibility for yourself and trying to make all these decisions.''
Candidates who set themselves on fireAll three interviewees argue that one significant problem for mainstream politicians is that detailed, reasoned arguments stand little chance against the antics of the populist, whose simplified, amplified rhetoric is apt to drown out costed healthcare programmes or earnest paeans to liberal values. And politicians are no longer held to their promises.
''The press does not know how to cover these candidates who are setting themselves on fire every day, who are masters of diversion and distraction,'' Clinton said. ''That is new.
''I always believed in the [2016 US presidential] campaign '... the moderators would ask the hard questions, they would force us to respond and they would draw out the differences. That never happened. Because the guy I was running against is a master at just waving his hands and tweeting and insulting, and dominating the news cycles.''
Blair, whose non-profit organisation the Institute for Global Change published research last year into the growth of populism in Europe, agreed. ''The political space for argument and debate has become very, very hard to curate and understand because everything is just sucked into this vortex of highly inflamed political rhetoric and exchanges of position without people trying to really reach much common ground,'' he said.
Renzi formally resigned as leader of Italy's centre-left Democratic party (PD) after a crushing defeat in elections that resulted in a populist coalition government between the rightwing League and the anti-establishment, Eurosceptic Five Star Movement (M5S).
''Social media makes you feel as if you are at the table of the president, and yet nothing changes,'' he said. ''I made an unbelievable mistake when I did not understand the engineering of hate, and the way hate was engineered from abroad and inside the country.''
'We were almost technocrats '' this was our mistake'Renzi, a former prime minister, said that while populists in government would find responsibility chastening, the centre left could not just sit back and offer austerity as their big idea. ''In Italy we lost the chance to fight against populism,'' he said, speaking in his imposing offices in the Palazzo Giustoniani in Rome. ''We lost the electoral campaign because we made the choice '' for me, a mistake '' to be very prudent and without passion.
''We presented ourselves as the government that saved Italy from economic disaster that had returned order to the table. We were the problems solvers, almost technocrats. This was our mistake maybe the worst mistake in our electoral campaign.''
Clinton is also ready to admit the mistakes she believes contributed to her defeat two years ago.
''We got caught in a kind of transition period. So what I had seen work in the past, and what had worked as recently as 2012, was no longer as appealing or digestible to the people or to the press,'' she said. She admitted she rejected some big bold economic messages such as a universal basic income because she worried about the cost.
''I was trying to be in a position where I could answer all the hard questions, but I never got the hard questions. I never got them. I was waiting for them. I could answer them. Yet I was running against a guy who did not even pretend to care about policy at all.''
'The problem is not migration '' it is fear of migration'On specific issues that have wrong-footed the centrist consensus, all three point to migration, arguing that the centre left has to come up with a reasoned alternative to the kneejerk populism of the right.
''There's no doubt in my mind that Brexit was largely about immigration and the lies that were told by the leave campaign,'' Clinton said. ''But immigration really helped to push it over the line, and I think that's why Viktor Orbn has consolidated his power. He closed his borders and it looked like he was a defender of Hungarian society and culture.''
Blair said those on the centre ground had to accept immigration was an issue of concern to large swathes of the electorate that cannot just be ignored. Renzi, in contrast, said it had only become a big concern to people because of the narratives that populists in his country were weaving.
''The problem is not migration itself but the fear of migration, which is worse,'' he said. ''The true narrative of the populist is a message that presents the future as a place of problems '' about jobs we will lose and how migrants will steal the future''.
Clinton articulated a position that she felt Democrats should adopt on immigration in the US, where there are an estimated 11 million undocumented immigrants, as Trump exploits fear of migrants to inflame his political base.
Democrats, she said, must never stoop to treating migrants cruelly. ''You deport the bad actors, you deport the criminals, you deport people who have some other kind of threat to our national security. People who have been here for a long time, you have a cut-off point and after that point, they have to learn English, they have to pay taxes, they have to follow the law, they have to wait in line, and you have a process.
''For people who then keep coming, you turn them back, unless they qualify for asylum, which has been in our law for hundreds of years.''
The risk to democracyAll three politicians are concerned about the implications for liberal democracy if debate is infantilised, opponents are delegitimised and opinion is Balkanised, all of which can be hallmarks of rightwing populism.
Speaking at his central London offices, Blair said: ''If your society divides into two groups of people who are culturally opposed to each other, who don't talk to each other, listen to each other or like each other, at what point do they decide that the other group is actually delegitimised?''
''That's the risk. At what point do you say '... and you can see some elements of this in American politics today '... at what point do you say that these people shouldn't govern, they don't actually have the right to govern?''
Renzi said the confrontational atmosphere had given rise to a ''climate of hate''.
''This is the problem of the new generation '' they are educated to hate and to envy,'' he said. ''If in the past you are a good entrepreneur, journalist or artist, the first reaction was praise, but now the first reaction is not 'wow', it is to challenge. We have lost the sentiment of respect.''
Clinton said policy had to be written in bolder colours than a 10-point plan. ''The real challenge is how do you carry a big banner that says, we are for you. We are going to promote policies and pass laws that are going to help not just those at the top, which is the Trump agenda, but really permeate universally into society, so that you, as well as your neighbour, as well as the guy down the street are going to be better off.''
She ends the interview with a dilemma and a lament. ''I'm all for having civil conversations, but if you don't win elections you can't change what is happening and get back those norms that have been established over so many years. Unfortunately, the way that our press and politics and particularly social media operate now, people reward the most clicks, the most outrageous comments, toughness, strength. That's what gets rewarded, and it's heartbreaking to me''.
California wildfires: Rain douses 'most' of blaze that killed 84 and destroyed 19,000 buildings
Sun, 25 Nov 2018 15:27
A deadly wildfire is nearly contained after several days of rain in Northern California, but searchers are still completing the meticulous task of combing through now-muddy ash and debris for signs of human remains.
Crews planned to resume the grim task today after working on-and-off the day before amid a downpour in the devastated town of Paradise.
Some are now looking through destroyed neighborhoods for a second time as hundreds of people remain unaccounted for. They're searching for telltale fragments or bone or anything that looks like a pile of cremated ashes.
A deadly wildfire is nearly contained after several days of rain in Northern California, as volunteers continue to comb the rubble for signs of human remains. (AP)Searchers wore yellow rain slickers and hard hats to protect against falling branches yesterday as they looked for clues that may indicate someone couldn't get out of their home, such as a car in the driveway or a wheelchair ramp.
Craig Covey, who led a team out of Southern California's Orange County, temporarily pulled his 30-member team off the search as heavy rain and wind knocked down trees.
The nation's deadliest wildfire in a century has killed at least 84 people, and 475 are unaccounted for.
READ MORE: White House quietly releases climate change report warning of more severe wildfires to come
Crews planned to resume the grim task today after working on-and-off the day before amid a downpour in the devastated town of Paradise. (AP)Some are now looking through destroyed neighborhoods for a second time as hundreds of people remain unaccounted for. (AP)Despite the inclement weather, more than 800 volunteers searched for remains on Thanksgiving and again yesterday, two weeks after flames swept through the Sierra Nevada foothills, authorities said.
While rain complicated the search, it also helped nearly extinguish the blaze, said Josh Bischof, operations chief for the California Department of Forestry and Fire Protection.
The Camp Fire ignited November 8 and has destroyed nearly 19,000 buildings, most of them homes. That's more than the worst eight fires in California's history combined, the agency said. Thousands of people have been left displaced.
While the rain made everybody colder and wetter, they kept the mission in mind, said Chris Stevens, a search volunteer who wore five layers of clothing to keep warm.
"It doesn't change the spirits of the guys working," he said.
"Everyone here is super committed to helping the folks here."
President Donald Trump walks with Mayor Jody Jones as he visits a neighborhood impacted by the wildfires. (AP)When Covey and several team members were delayed by rain yesterday, they took two big brown bags full of lunch to 64-year-old Stewart Nugent, who stayed in his home and fought off flames with a garden house, a sprinkler and a shovel. He has been there for two weeks with his cat, Larry.
READ MORE: California wildfires: Trump revives criticism as death toll skyrockets
The first winter storm to hit California has dropped 51mm to 102mm inches of rain over the burn area since it began Wednesday, said Craig Shoemaker with the National Weather Service in Sacramento.
The weather service issued a warning for possible flash flooding and debris flows from areas scarred by major fires in Northern California, including the areas burned in Paradise.
Residences leveled by the wildfire line a neighborhood in Paradise. (AP)More than 5500 fire personnel were battling the blaze that covered 590 square kilometres and was halfway contained, officials said. (AP)But Shoemaker said the rain didn't fall hard enough yesterday to cause serious problems. Light showers were expected today, he said.
In Southern California, more residents were allowed to return to areas that were evacuated because of the 391-square-kilometre Woolsey Fire as crews worked to repair power, telephone and gas utilities.
About 1100 residents were still under evacuation orders in Malibu and unincorporated areas of Los Angeles County, down from 250,000 at the height of the fire.
The fire erupted amid strong winds November 8 just west of Los Angeles and burned through suburban communities and wilderness parklands to the ocean, leaving vast areas of blackened earth and many homes in ashes.
(C) Nine Digital Pty Ltd 2018
USAID to lay off half its employees, close doors of West Bank and Gaza operation by 2019 - Palestinians - Haaretz.com
Sun, 25 Nov 2018 15:24
The United States Agency for International Development announced that half of its employees in the West Bank and Gaza will be let go in the coming weeks and by early 2019, the operations will be completely shut down.
The humanitarian agency is one of the largest and most important in the region.
The U.S. State Department informed USAID last week that by next month the agency would have to present a list of 60 percent of its employees to be dismissed as the first step in the shutdown that will be finalized by 2019.
>> Defunding UNRWA is an example of Trump's 'peace' plan | Analysis '– All sticks, no carrot: Six times Trump targeted the Palestinians '– When Saudi Arabia imported teachers from Palestine
The U.S. federal government agency handles civilian assistance to various countries around the world. The USAID chapter in the West Bank and Gaza began operating in 1994, focusing mainly on economic issues including water, infrastructure, education and health. USAID has invested about $5.5 billion in the West Bank and Gaza in the construction of roads, schools, clinics and community centers.
USAID also buys medical equipment, provides humanitarian assistance to those in need of medical care and teaches lifesaving techniques to doctors from Gaza and the West Bank via Israel and other countries. In recent years USAID has conducted in-service education for teachers, built schools and worked on projects to keep young Palestinians in the education system.
Last August, Israel approved the entry of containers with equipment needed for the completion of water projects into Gaza. USAID had been working on for the project for past year, including construction of a large desalination plant and eight large drinking water reservoirs. The project, whose cost was estimated at 60 million shekels ($16 million) was conducted USAID by American companies through a contractor in Gaza.
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After U.S. President Donald Trump's decided to freeze funding to various Palestinian relief organizations, USAID's dozens of projects in the West Bank and Gaza were suspended, including those that had been partially completed. In the current budgetary year, the United States was projected to have transferred a total of $250 million in aid to various Palestinian organizations. $35 million of which was supposed to be allocated to the Palestinian Authority security forces and $215 million to economic development, humanitarian assistance and coexistence projects, some through USAID. Last August, the United States announced that the money would be diverted to matters were deemed higher priority to U.S. interests.
Some 180 employees working for the U.S. Embassy in Israel have yet to receive the budgeting for activities for either 2018 or 2019. The leftover money has been diverted to paying salaries and maintaining the organization. According to officials involved in the matter over the past few months, U.S. Ambassador David Friedman has shown no interest in USAID's needs and has not held meetings with USAID officials on projects.
USAID officials said that the policy of the ambassador and the Trump administration to stop funding aid is meant to put pressure on Palestinian Authority President Mahmoud Abbas to renew talks with the United States and Israel ahead of the peace plan the U.S. government is expected to present soon.
Israeli Defense officials are reportedly aware of developments regarding the suspension of USAID's work, but are also concerned over a cessation of American assistance to the United Nations Relief and Works Agency.
Senior defense officials have warned that without an alternative to UNRWA, the situation in Gaza will worsen. UNRWA provides basic food to 1.3 million people in the Gaza Strip, 4 million doctor visits annually to Gaza residents and employs 12,000 teachers who teach about 300,000 children. While aid to UNRWA is more significant than the USAID, the cessation of the activities of both agencies, coupled with no alternative in sight will lead to a decline in the humanitarian situation in the Strip and even to its collapse, by which, Israeli security officials have said, Israel will pay the price in terms of sanitation, security and the economy.
'
People who turn their cats vegan could face prosecution, RSPCA warns | Daily Mail Online
Sun, 25 Nov 2018 15:24
The RSPCA has warned of tough sanctions for pet owners who force their cats into being vegans.
Owners concerned with ethics are turning to veganism and vegetarianism and bringing their cats with them.
Pet food suppliers are now following suit, with one in six now branching out into vegan and vegetarian food stuffs for animals.
A criminal record could be dished out to owners who make their pets seriously ill as a result of a plant-based diet, warned the charity.
Cats are technically carnivores and require meat, unlike dogs who can survive without it
Harry Bolman faced hostile backlash after placing his cat Uma on a strict vegan diet last year
The focus on cats is because they are technically carnivores and need meat.
The warning doesn't apply to those who choose to make their dogs vegan because they can theoretically survive on plants alone.
A spokesman for the RSPCA said: Under the Animal Welfare Act the law requires an owner to ensure all the pet's needs are met. This includes a healthy diet, as well as suitable living conditions and protection from pain, suffering, injury and disease.'
Those in breach of the act could even face prison. Failing that, they could be fined.
Other experts agree that it is a possible welfare issue and warnings came after the National Pet Show in Birmingham this month displayed non-meat options to potential buyers.
Pet shops have reported the growing demand for grain and gluten free options for their pets.
RSPCA has warned of tough sanctions for pet owners who force their cats into being vegans
An expert from Benovo, a company that has been making 'ethical pet food' since 2005, told The Daily Telegraph the apparent health issues the RSPCA were talking about are all hogwash and that any vets that disagreed with him were struggling with 'an unshakable ideology'.
A 53-year-old called Harry Bolman also thinks plant-based food is the 'healthiest diet' for felines.
He feeds his cat Uma, five, a diet of vegetables and special vegan cat food and claims she's never been healthier.
Harry - from Australia - who has been vegan for the last 38 years, said despite negative comments from people who he claims say he is 'abusing' and 'killing' his cat, he stands firm in his position.
Uma, 5, is on a diet of vegetables and special vegan cat food and 'has never been healthier'
'Uma is very healthy. She's got the whitest coat, a great appetite and is full of vitality. Regular processed cat food is abysmal. It's just bits and pieces of different animals which is absolutely revolting. There is no way I'd feed my cat that. I don't support meat-based pet food, it goes against my ethics altogether,' Harry said.
According to the RSPCA, cats 'need a source of animal protein to survive' '' and while all mammals need the nine essential amino acids, cats are unique as they require taurine and arginine in their diets '' which is only found naturally in meat.
It is added to the likes of Benovo's foods but veterinarians still say that it's inappropriate because it's based on very limited and/or poor research.
Tear Gas and Water Cannons in Paris as Grass-Roots Protest Takes Aim at Macron - The New York Times
Sun, 25 Nov 2018 13:24
Image Protesters on the Champs-‰lys(C)es on Saturday, wearing the yellow safety jackets French motorists are obliged to carry. It was the second weekend of loosely organized protests initially sparked by a proposed gas tax rise. Credit Credit Benoit Tessier/Reuters PARIS '-- Shouts of ''Macron resign!'' and ''Macron get lost!'' punctuated the booms from tear gas and water cannons on the Champs-‰lys(C)es on Saturday, as the French police forced protesters from the ''Yellow Jackets'' movement away from the presidential offices in the ‰lys(C)e Palace.
French protest movements come and go, but this one, organized on the internet, is different. Welling up rapidly from rural and forgotten France, this broad-based, citizen-driven movement is among the most serious challenges yet to President Emmanuel Macron's pro-business government, say analysts, political opponents and even many of Mr. Macron's supporters.
On Saturday, thousands of so-called Yellow Jackets, named for the fluorescent road-safety vests that all French drivers must carry in their vehicles, converged on Paris for a second weekend to protest a rise in fuel taxes and to express general discontent with the fiscal burden in one of the most highly taxed states in Europe, where taxes represent over 45 percent of G.D.P.
[Protests in France began last weekend, with hundreds of thousands demonstrating against fuel tax hikes.]
The numbers had dropped sharply from the preceding week's several hundred thousand protesters; the police estimated there were about 8,000 in Paris and more than 80,000 across the country on Saturday. But this time, more were concentrated on the protesters' symbolic targets: the capital and Mr. Macron himself.
Image Protesters facing a police water cannon in Paris. The police battled hardened militants wielding paving stones who the protesters insisted were unconnected with their movement Credit Benoit Tessier/Reuters Clouds of gas and smoke rolled up the Champs-‰lys(C)es all afternoon as the police battled militant members of the crowd wielding paving stones; the grass-roots protesters insisted they were unconnected with their movement.
''We're just fed up. It seems like to us that the government is only working to maintain its own privileges,'' said Mathieu Styrna, one of the thousands marching down the Champs-‰lys(C)es. A contractor, he said he had been forced to drive hundreds of miles a week for work and could no longer afford his gas bills.
For the protesters, it was all about making ends meet.
''Why should we have to finance their projects?'' Mr. Styrna said, referring to the government's plan to discourage car use through gas taxes. Many in the crowd said that they did not disdain the government's environmental goals, but that their own survival was more important.
The movement appears to be without leaders, and the opposition parties in France have scrambled to keep up with it.
''This amateurism, it's the sign of the crisis of the French political system,'' said Dominique Reyni(C), a political scientist at Sciences Po, referring to the protesters' loose organization.
''It's really quite incredible. This is the most impressive event since Macron came to power,'' Mr. Reyni(C) added. ''It's a profound crisis.''
Image Police officers firing tear gas during the protest in Paris. Credit Benoit Tessier/Reuters The movement has forced itself on the government's unwilling attention with a message analysts say is not going away soon: We are in trouble.
Like many at the protest, Mr. Styrna, a father of three, said he had trouble paying his bills. ''It's not even by the end of the month; it's by the middle,'' he said, referring to point when the funds run dry. ''We don't even go out any more '-- no cinema.''
Julien Viguerard, 31, who works in a biscuit factory in Toulouse, said: ''The end of the month? Ha! It's the 15th for me.''
He has seven children, earns 1,500 euros a month, about $1,700, and is ''sick of being taxed on everything.'' The problem ''is low salaries,'' he said. ''I've got children to feed. We're not just imbeciles. They treat us like cattle. We can't accept it.''
Saturday's protesters came from all over France. Many said they had been recruited on the internet, followed no political movement and emphasized that they simply didn't have enough to live on.
''I don't have the means to live or to die,'' read the sign held up by Jennifer Hurau, who works as an online saleswoman in the Paris suburbs on a temporary contract that is soon to end. For now, she makes '‚¬1600 a month and pays '‚¬550 in rent. ''I don't know what I will do,'' she said.
Image President Emmanuel Macron addressed the protests only obliquely in a speech to French mayors at the ‰lys(C)e Palace this week. Credit Thibault Camus/Associated Press It is the movement's amorphousness that makes it new, powerful and potentially dangerous for Mr. Macron, analysts say.
''The government parties didn't understand that their tax policies would wind up producing this,'' said Mr. Reyni(C), the political scientist. ''This is a movement that thinks the political parties are incapable of producing a solution. It is part of the chemistry of populism,'' he added, pointing out that the tax burden had grown by about '‚¬25 billion every year between 2002 and 2017.
''This is the first time we're seeing a mobilization that's coming from the social networks, and not led by the political parties or the unions,'' said Jean-Yves Camus, a political scientist who heads the Observatory on Political Radicalism.
''This is really a populist-type movement, and it's an extremely strong protest against elite France,'' he added. ''It's a protest against tax policy that's considered confiscatory. And there's been an undeniable drop in the buying power not just of the workers, but of the middle class.''
The government's response to the protest movement so far has been halting, ''a sort of condescension,'' Mr. Camus said.
No high-ranking official has met with any of the self-designated spokespeople for the movement who have been appearing on French television all week. There have been a few small fiscal gestures '-- promises of checks and rebates '-- but these were dismissed by Saturday's protesters as irrelevant to their daily struggle.
Image French mayors waiting to hear Mr. Macron speak. Many mayors expressed disappointment and bewilderment at the official response to the protests. Credit Thibault Camus/Associated Press Mr. Macron, in a speech to some of the country's thousands of mayors this past week, did not mention the Yellow Jacket protests directly, but instead spoke in his usual finely sculpted abstractions.
''The challenge that is ours is to invent a new grammar,'' the president said.
Later, in a question-and-answer session with the mayors, the president did address the protests, obliquely, and largely to complain about them.
''It's a little bit unfair,'' he said. ''They see my face when they fill up at the gas pump.''
Mr. Macron added: ''There is a moral crisis in society. The risk is in the ambient demagogy. I'm hearing the anger. But I don't want to hear it in a demagogic fashion.''
Even some of the president's own supporters in Parliament have expressed concern that the anger of the protesters is not being heard. Their own insurgent political movement was partly born of this anger, they said.
''They're expressing a seething anger, which we know about,'' said Thomas Mesnier, a parliamentary deputy in Mr. Macron's party. ''People are waiting for results, and they are waiting for their daily lives to improve.''
''This is a movement without precedent, and we don't have a good diagnosis of it,'' said Nicolas D(C)moulin, another Macronist deputy in Parliament. ''We've got to go to these citizens who feel they are completely shut out of politics.''
Image Clouds of gas and smoke rolled up the Champs-‰lys(C)es all afternoon. Credit Kamil Zihnioglu/Associated Press The government declined to make its spokesman available for a response to the Yellow Jackets protest. On Friday, the spokesman, Benjamin Griveaux, told French television that ''the crisis is deeper than just over the price of gas,'' but ''one must never set the environmental fight up against social justice.''
There was disappointment and bewilderment at Mr. Macron's response to the protests at the giant annual French mayor's convention in Paris this past week.
''The response has been out of step, disconnected,'' said Sony Clinquart, the mayor of a small town near Dunkirk in the north.
''There is a lack of intermediary between him and the population,'' said Isabelle Henniquau, the mayor of a town near the Swiss border. ''He should explain what he is going to do.''
By Saturday afternoon, the Champs-‰lys(C)es was a battleground of overturned barricades, billowing smoke, bonfires and pushing between Yellow Jackets protesters and the police.
''We're hungry and we're fed up,'' said Jessica Monnier, 28, who works in a watch factory in the French Alps. She earns '‚¬970 a month, and said: ''Once I pay my bills, I don't have enough to eat. We're just hungry, that's all.''
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Emmanuel Macron news: French president sends ARMY to crush rising fuel cost protests | World | News | Express.co.uk
Sun, 25 Nov 2018 12:53
Express. Home of the Daily and Sunday Express. EMMANUEL Macron is sending troops to La Reunion to quash the growing social tensions sparked by the so-called ''yellow vests'' opposing to the rising prices for fuel, the Elysee announced. PUBLISHED: 16:32, Thu, Nov 22, 2018 | UPDATED: 16:47, Thu, Nov 22, 2018
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Mr Macron promised France will be ''inflexible'' against those violently opposing to the government on the island, adding "you can not accept the scenes" that have been seen in recent days. The French President made the announcement on Twitter, writing: "The situation, which has been developing in Reunion since Saturday, is serious. ''We have taken efforts and will continue to do so '-- our servicemen will be mobilised starting from Thursday to restore public order.
''There will be a crackdown because we cannot tolerate the scenes that we have seen in the past few days.''
The President also said that the problems affecting this island "come from afar''.
He assured that his Government "has begun to treat them one by one", promising an improvement of the situation "in depth".
The Overseas Minister, Annick Girardin, said the violent acts in La Reunion are the results of actions by "radical groups" that have nothing to do with the "yellow vests".
Emmanuel Macron is sending troops to La Reunion to quash social tensions (Image: GETTY)
Chaos sparked across France on Saturday, when more than 287,000 people attended marches and protests wearing yellow vests to oppose to the announced rise in taxes on fuel to be implemented next year.
Echoes of the outcry reached La Reunion, a French overseas department in the Indian Ocean, where police and protestors have been clashing today.
At least 16 police officers were injured, according to the French government, and more than 100 arrests have been made.
READ MORE: France fuel protests DAY THREE: One dead and 400 injured in VIOLENT clashes
Emmanuel Macron promised France will be ''inflexible'' (Image: GETTY)
At least 16 police officers were injured today on the island (Image: GETTY)
French government spokesman Benjamin Griveaux said: "The latest data on Reunion was shared with us by the cabinet.
''There were 109 arrests; 30 law enforcers were injured, including 16 police officers and 14 gendarmes.''
The price of fuel has grown steadily over the past ten months, with consumers bearing a 23 percent increase for diesel and a 15 percent rise for petrol.
According to government's plan, prices for both petrol and diesel will further grow by respectively 2.9 eurocents and 6.5 eurocents on January 1 next year.
Police arrested more than 100 protesters (Image: GETTY)
Mr Macron defended the proposed rise, arguing it will help reduce pollution.
And he also pointed out that the main rise in prices suffered by consumers is not due to taxes, but comes as a consequence of rising oil prices.
He added he will meet with oil companies and distributors to tackle the problem.
(Additional reporting by Maria Ortega)
Government report: Climate change will cost the US economy billions '-- Quartz
Sun, 25 Nov 2018 12:31
A common argument made against climate-change mitigation is that it's bad for the economy. A new US government report released Friday (Nov. 23) says it will be much worse for America's economic health to do nothing.
The Fourth National Climate Assessment, a 1,600-page, Congress-mandated study, is a detailed tally of the economic devastation climate change has already inflicted on the US, and the billion-dollar losses that Americans can expect in the future if they don't reduce their greenhouse gas emissions. It predicts the cascading effects could severely impact human health, the environment, and economic growth.
The analysis was carried out by scientists that serve in the Trump administration, but their findings are at odds with president's own environmental policies, which have mostly consisted of deregulating industry and leaving the Paris Climate Agreement.
The authors, who hail from 13 federal agencies, looked at the economic consequences sector by sector. Here are some of the costs they identified:
Labor lossesClimate change could have a big impact on labor, a key pillar of the economy. By the end of the century, productivity losses due to extreme heat in jobs that require being outside, such as agriculture and construction, could result in some $160 billion in lost wages a year, according to the report.
Higher energy costsAnother big economic blow will come from rising energy costs: up to $87 billion a year by 2100 due to mounting demand on a power system made less reliable by extreme weather.
Damaged infrastructureAs much as $507 billion's worth of real estate is at risk of being inundated by rising sea levels by 2100, according to the report. Inland, flooding could destroy thousands of bridges, resulting in damages of $1.2 billion to $1.4 billion a year by 2050.
Shrinking environmental capitalAmericans would also suffer from the losses of natural resources they now bank on. Ocean acidification would take a toll'--of up to $230 million'--on shellfish harvests. Disappearing coral reefs alone would shave $140 billion off the recreation industry; cold-water fishing and skiing would also be affected.
But it doesn't have to be that way. The study also shows that working to reduce the world's carbon footprint today would make for a less dire future.
NEDERLAND BOUWT MEE AAN DE NATTE DROOM VOOR ASTRONOMEN  - Kijk - Blendle
Sun, 25 Nov 2018 12:16
MEGATELES COOP IN STUKJES
Tekst: Jean-Paul Keulen
In de Australische outback willen astronomen een miljoen antennes neerzetten, en in de Zuid-Afrikaanse steppe duizenden schotels. Samen vormen die dan SKA, de grootste en gevoeligste radiotelescoop ter wereld. Welke sterrenkundige vraagstukken kunnen we daarmee oplossen?
DOWNWARD SPIRAL: Clinton Foundation Donations Take 90% Nosedive
Sun, 25 Nov 2018 04:15
The Clinton Foundation has suffered a massive decrease in donations over a three-year span according to financial documents posted by a website called Zero Hedge. The documents show a decrease in monetary donations of about 90% from the years 2014 to 2017. To help provide clarity and verify the information, the very same documents are also on the Clinton Foundation website dated November 15, 2016 and November 9, 2018.
Back in January of this year, it was announced that the FBI had been investigating the Clinton Foundation for months based on a probe from 2016. This could be a contributing factor in the Clinton Foundation donations declining. Of course, it could also be tied directly to the fact that Hillary Clinton lost the election of 2016, and those who expected her to win had reduced donations (speculation, of course). She was defeated by Donald Trump who is currently serving as president and halfway through his first term.
Backtrack to July of 2016 and an article by the Washington Examinerdiscusses information involving an IRS investigation into the Clinton Foundation.
Their article stated, ''IRS officials are investigating the Clinton Foundation for alleged fraud after dozens of lawmakers asked the tax agency to open an inquiry.
A spokeswoman for Rep. Marsha Blackburn, R-Tenn., who led the effort to demand an investigation, told the Washington Examiner that the IRS has referred her request to its Exempt Organizations Examinations program.
Read more from our friends at ILoveMyFreedom.org
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Arron Banks criminal investigation: could evidence against him make Brexit void?
Sun, 25 Nov 2018 03:00
The National Crime Agency is to open a criminal investigation into Brexit campaign backer Arron Banks after the Electoral Commission revealed that it had reasonable grounds to suspect that Banks was ''not the source'' of millions of pounds in loans to the organisation Leave.EU. Banks has denied that there was any funding from Russia in the £8 million he donated to the Brexit campaign.
There have also been fines for overspending on Brexit campaigns and questions about how voter data was used.
All these events have led to a new legal case being listed for an oral hearing in the High Court on December 7. This will argue that Brexit must be declared void and that the notification of Article 50 must be nullified. It is being led by two Queens' Counsel against the prime minister. So, if the investigation against Banks confirms wrongdoing, can Brexit be declared void in court?
There is no doubt that potentially criminal overspending, data-havesting and Russian interference delegitimise the Brexit poll in the public's eye. But it also matters because at common law, votes can be void when they break the law. The common law principle applies to all votes: both elections and referendums.
The constitutional principle was applied in a case called Morgan v Simpson. In 1975, a group of citizens in Croydon argued that a Greater London Council candidate's election was invalid because 44 votes had not been counted. First, the Court of Appeal held if an ''election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not''. It also said that where there is an irregularity '' even one that isn't major '' that ''did affect the result'', a vote must also be declared void.
This is part of the general legal principle that ''fraud unravels everything''. ''Fraud'' in law is an objective concept. It could include the fraudulent appropriation of social media data and could implicate any potentially fraudulent funding of Brexit. If official campaign Vote Leave knowingly overspent, that might be have implications too, as would any potentially fraudulent funding of Brexit by Russia through Arron Banks.
It means that the order by the Prime Minister to trigger article 50 and negotiate to leave the EU, enabled by the European Union (Notification of Withdrawal) Act 2017, could be declared void.
The case that argues Brexit is void, which gets its first hearing on December 7, is called Wilson v Prime Minister. The barristers' argument is well worth reading in full, but the opening sentence is gives the gist: it asks whether a ''free and fair vote is one of the constitutional requirements of the United Kingdom''. Wilson and the other claimants submit that it is.
Now, it's a big thing to litigate the very validity of Brexit. But if Russian athletes win Olympic medals when they are taking drugs, their victories are not valid. The same is true of a corrupt vote.
What's clear is that the UK is in a terrible situation. There is a very real risk of ending a 210-year union between Britain and Northern Ireland, and the 311-year union between England, Wales and Scotland.
For Russia, the power to disable two permanent members of the United Nations Security Council in two years is an earth-shaking geopolitical victory. It didn't work with Marine Le Pen in France, and it can't touch China. But if it gave the UK Brexit, and the US Trump, British parliamentarians need to look impartially and dispassionately at what has been unfolding, and act.
The British constitution is not codified, but it is written in the case law and the statute books. The law tells us every vote must be free and fair. If Brexit was not, as more and more evidence appears to show, it's time to bury it.
Jon Favreau on Twitter: "#TheClintonAffair is enraging, depressing, and worth watching, especially for those of us too young to remember the details. @MonicaLewinsky, who shows incredible grace and courage, is owed an apology by a very long list of people
Sun, 25 Nov 2018 02:57
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Hillary Clinton Accuses Trump Of Having A 'Streak of Racism,' 'Whole Package Of Bigotry'
Sun, 25 Nov 2018 02:55
Hillary Clinton, without a whiff of self-awareness, is accusing President Donald Trump of being a bigot and racist.
During an interview with The Guardian, the twice failed presidential candidate said Trump has a long ''streak of racism'' and ''the whole package of bigotry.''
POLL: Would you choose ALEX JONES or JIM ACOSTA to get press credentials?
''This is a person who believes in very little, but he does have visceral responses to what goes on in the world around him. He does have a strong streak of racism that goes back to his early years,'' Clinton said.
She added: ''I include his anti-immigrant tirades because he characterizes immigrants in very racially derogatory ways, but he was Islamophobic, he was anti-women, he really had the whole package of bigotry that he was putting on offer to those who were intrigued and attracted to him.''
Clinton once referred to African-American youth as ''super predators'' and supported former President Bill Clinton's policies that many argue resulted in African-Americans being unfairly targeted and jailed.
''He was, from the very first day of his campaign, raising the [specter] of criminal immigrants and the like. So the anti-immigrant piece coupled with things that he said, the kind of people who supported him, former Ku Klux Klan members and the like, the message that we called the dog whistle, was incredibly loud. It was: 'I'm on your side because I don't like the same people you don't like. Or at least I'm going to say I don't and that counts for something,''' Clinton complained.
Clinton went on to claim that Trump is creating an ''alternative reality'' because he has studied other ''authoritarian regimes and how they manipulate and control people.''
VOTE NOW: On a scale of 1-10, how is Trump doing?
If anyone lives in an ''alternative reality,'' many would argue it's Clinton, whose is still beyond obsessed with becoming president.
Last month, Clinton said her husband's affair with an intern in the White House, which led to his impeachment in the U.S. House of Representatives, was not an abuse of power.
She also argued that former President Bill Clinton, her husband, should not have resigned at the time.
Last month, Clinton ignited a firestorm online when she wore a ''muumuu'' to attack Trump.
Speaking at OzyFest in New York, Clinton insulted Americans, and said anyone who doesn't believe Trump's policies are hurting America isn't ''walking around with their eyes open.''
VOTE NOW: Should Jim Acosta be PERMANENTLY banned from the White House?
Last month, Clinton appeared to imply that newly appointed Supreme Court Justice Brett Kavanaugh will lead America back to the days of slavery. Clinton said Kavanaugh being on the Supreme Court will return the country to 1850 '-- when the atrocities of slavery were taking place.
In March, she speculated that Americans only voted for Trump because they ''didn't like black people getting rights.''
Clinton, who is obviously still deeply upset about her embarrassing loss in the election, is saying whatever she can to remain relevant.
And now, she's accusing Trump of being a bigot and racist.
Who would win a 2020 election match-up: Trump or Biden?
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(7) Newsweek on Twitter: "Russia plans flight to verify if American moon landings happened or not https://t.co/iKIuQ8rbl8 https://t.co/QbUyGPoPbd" / Twitter
Sat, 24 Nov 2018 20:18
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Ocasio-Cortez Reacts to Climate Change Report: 'People Are Going to Die'
Sat, 24 Nov 2018 20:15
On Friday, Rep.-elect Alexandria Ocasio-Cortez (D-NY) reacted to a report from the federal government on climate change and called on the United States to address the matter, saying, ''we must make it urgent.''In the tweet sent to her 1.30 million followers, Ocasio-Cortez once again called for Congress to create a special committee focused on issues surrounding climate change.
''People are going to die if we don't start addressing climate change ASAP,'' she wrote. ''It's not enough to think it's 'important.' We must make it urgent.''
''That's why we need a Select Committee on a Green New Deal, & why fossil fuel-funded officials shouldn't be writing climate change policy,'' she added.
People are going to die if we don't start addressing climate change ASAP.
It's not enough to think it's ''important.'' We must make it urgent.
That's why we need a Select Committee on a Green New Deal, & why fossil fuel-funded officials shouldn't be writing climate change policy. https://t.co/bn6NloGlaY
'-- Alexandria Ocasio-Cortez (@Ocasio2018) November 23, 2018
The report stated, ''Climate change threatens to exacerbate existing social and economic inequalities that result in higher exposure and sensitivity to extreme weather and climate-related events and other changes.''
This month, Ocasio-Cortez joined a group of youth climate change protesters who gathered at the office of House Minority Leader Nancy Pelosi.
Ocasio-Cortez applauded the young activists as she spoke to them briefly about ''how proud'' she was of the ''incredibly important'' work they were doing.
Follow Kyle on Twitter @RealKyleMorris.
Rush Limbaugh won't rule out run for president - WND
Sat, 24 Nov 2018 19:45
Rush Limbaugh at a rally with President Trump in Cape Girardeau, Missouri, Nov. 5, 2018 (video screenshot)
After years of saying he would never run for any political office, radio talk-show host Rush Limbaugh is now open to the possibility, even if it's the White House.
''I'm not flat-out saying no. I'm gonna have to reassess it at some point,'' Limbaugh said in the final moments of his Wednesday broadcast when a caller urged him to seek the presidency once President Donald Trump has completed his service to the nation.
''I am deeply flattered,'' Limbaugh said of the suggestion. ''Before Trump '... it would not have been possible.''
Limbaugh was acknowledging that Trump has pushed back so well against his political opponents, including the media, it has opened the door for a conservative such as himself to consider the idea.
''In the past when it's been suggested I run for any office, not president, any office, I said I wouldn't have a prayer simply because I've been speaking 15 hours a week for 30 years. And oppo research can go find anything they want that would kill my candidacy. The word 'feminazi' might kill my candidacy. But now with Trump having busted through all those kinds of barriers, it may be possible now, whereas prior to today, prior to Trump it would not have been.''
Rush Limbaugh
Limbaugh said most members of the media don't even try to understand who Trump is or why people support him:
This is the thing that Trump's enemies and opponents have yet to understand. I'm watching CNN today, and it's no different than what they've been doing for two years. They are showing examples of Trump saying hypocritical things. They're showing examples of Trump saying mean-spirited things, they think. They're still on this quest to kill Trump as a human being. And they're still trying to educate people like you or convert people like you into thinking that Trump is absolute human debris and has no business being alive in American politics. And they're beating their heads against the wall when it comes to trying to convert Trump supporters and voters.
And it's really interesting and amazing to me. They have not yet even after two years given one moment to trying to figure out why you are who you are and why you support Trump. All they're doing is thinking that you're stupid and dumb and dangerous and that if they just pummel Trump enough that you will finally wake up and admit the mistake you made in voting for him. It really is a case study in watching these elitists and self-proclaimed members of the ruling class.
CNN today has been a fascinating case study. There hasn't been one moment of happiness, there hasn't been a moment of satisfaction, there hasn't been a moment of patriotism. Every anchor has taken his or her shot at beating up Donald Trump. And the only audience they have is where you can't watch anything else like in an airport. It's amazing to see. The willing obfuscation, the willing ignorance, the purposeful ignorance that these people are exhibiting in understanding why somebody like Donald Trump is supported, why he's elected.
On the eve of Thanksgiving, Limbaugh thanked his audience for making him such a success, saying: ''To this day, I am still so appreciative of all of the great things that you have made possible for me and my family. And there's no way of ever repaying it all. So that's why I try to tell you as honestly as I can, as often as I can how deeply important to me you all are and how meaningful you all are.''
''Being an American is a treasure.''
Limbaugh addressed a caller in 2015 about running for president, and said, ''I've had to learn how to take being reviled and hated by the 25 or 30 percent of liberals out there as a sign of success. But you cannot win elections being hated. People just aren't going to vote for you like they will listen to you or like they won't watch you if you have to have a TV program.''
Follow Joe Kovacs on Twitter @JoeKovacsNews
The Federal Reserve's Reaction to the Next Crisis Might Surprise You | StormCloudsGathering
Sat, 24 Nov 2018 16:14
Those who expect the collapse of the current stock market bubble to play out just like the previous two crashes are in for a bit of a surprise.
The normalcy bias is the tendency to assume that future events will continue to unfold as they have in the past. By not accounting for changing conditions, the likelihood of a disaster, and the severity of its consequences, are underestimated.
There is a widespread assumption that the Federal Reserve will respond to the next financial crisis much as it has to previous crises '-- by loosening monetary conditions, and/or buying up distressed assets. These are the only tools the fed really has, and they will certainly be used at some point, however the scale of the response will not be sufficient.
The Federal Reserve loosens monetary conditions by buying up treasuries (using money created out of thin air). This artificial demand causes interest rates to drop, thereby pushing investors into other assets (stocks and real estate for example) inflating new bubbles. In the past, the fed has typically begun raising interest rates almost immediately after the crisis was contained. However in the aftermath of the the 2007 housing crash interest rates were kept at zero for almost a decade.
This was accomplished through an unprecedented bond buying spree, referred to as ''quantitative easing'', during which 4.2 trillion dollars were added to the fed's balance sheet.
The result was the largest asset bubble in world history, with the S&P 500 gaining 300% following the 2009 recession.
These assets are still on the fed's balance sheet, and are in the process of being sold off at a rate of 50 billion a month.
This time around the fed doesn't have the means to inflate a new bubble. They're out of ammo and moving in the very opposite direction.
As the current bubble collapses there come a moment when the whole world expects the Federal Reserve to step in and take drastic measures. When that expectation doesn't pan out the we will be in uncharted waters.
The unraveling is just beginning - The Washington Post
Sat, 24 Nov 2018 16:12
President Trump at the White House on Nov. 9. (Nicholas Kamm/AFP/Getty Images) Jennifer RubinOpinion writer covering politics and policy, foreign and domestic
Post-midterm election, President Trump's tenure seems rockier than ever. Consider:
His much-criticized deployment of troops to handle the nonexistent border crisis proved to be as unnecessary and politically motivated as critics claimed. With the election behind him, Trump is now drawing down the troops. His relationship with the military hasn't been helped by his conduct in France, or his weird decision to pick a fight with a national hero '-- retired Adm. William H. McRaven. His defense of Saudi Crown Prince Mohammed bin Salman has been roundly criticized, and will be challenged by a bipartisan coalition in Congress. His attack on the press was thwarted by CNN and other media companies; the White House retreated and reissued Jim Acosta's permanent press pass. Ivanka Trump seems to have her own email scandal. The Post reports: ''Ivanka Trump sent hundreds of emails last year to White House aides, Cabinet officials and her assistants using a personal account, many of them in violation of federal records rules, according to people familiar with a White House examination of her correspondence. . . .The discovery alarmed some advisers to President Trump, who feared that his daughter's practices bore similarities to the personal email use of Hillary Clinton, an issue he made a focus of his 2016 campaign.'' Trump's appointment of acting attorney general Matthew G. Whitaker has drawn bipartisan criticism and a lawsuit. All this occurs before the Democrats take control of the House and before they can start issuing subpoenas or holding hearings. When that happens, things will get really dicey for Trump as his personal finances come under scrutiny.
All of this should surprise no one. A president entirely unfit for his office (temperamentally, intellectually, and in every other imaginable way) '-- who has cycled through advisers and banished independent voices '-- gets worse with time. The facade of functionality at the White House started crumbling some time ago: Mistakes and bad hires (including his daughter and son-in-law) have caught up with him over time; the quality of each new addition to the administration is nearly certain to be worse than the person being replaced, while qualified and ethical public servants want no part of this train wreck.
Moreover, we've yet to see the results of special counsel Robert S. Mueller III's investigation, which very likely will lay out the elements of an obstruction of justice charge. James A. Baker, a former general counsel of the FBI, and Lawfare author Sarah Grant take us through the recently released Watergate roadmap, with obvious parallels to the current administration:
As a result, the road map's references to President [Richard M.] Nixon's interactions with [then assistant attorney general Henry E.] Petersen '-- the person who was heading the investigation '-- take on a different and more nefarious meaning. Those interactions must be understood within the larger context of the president's knowledge of the facts regarding Watergate at the time that he was in contact with Petersen. In other words, when the president sought information from Petersen, provided his views to Petersen on the various matters that they discussed, and discussed Petersen's future, he was not merely exercising his powers under Article II of the Constitution to supervise the executive branch and trying to get the facts necessary to do so; the president of the United States was also acting as a criminal co-conspirator trying to obstruct lawful investigative activities of the Justice Department.
Nixon was forced to leave office to escape impeachment, and was later pardoned. But the episode now serves as a roadmap to legal and political disaster for Trump.
In sum, Trump's presidency is in a downward spiral. He is likely to react more irrationally and unpredictably as the crises pile up. In other words, the first two years likely will be looked upon as the glory days of the Trump presidency.
Read more from Jennifer Rubin:
Driving toward 2020, a pile-up in the left lane
The Republican Party isn't 'grand,' and its old ideas are making it irrelevant
A critical lawsuit over the acting attorney general
If Republicans don't want to be called racists '...
Stacey Abrams has it right about election rhetoric
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DHS wants to use credit scores to determine who gets to be a legal U.S. resident.
Sat, 24 Nov 2018 16:03
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The overall incidence of published replication studies in economics is minuscule '' greater incentives are required | Impact of Social Sciences
Sat, 24 Nov 2018 16:01
Replicability is considered a hallmark of good scientific practice, an important post-publication quality check. But how many studies are chosen for replication? Frank Mueller-Langer, Benedikt Fecher, Dietmar Harhoff, Gert G. Wagner have examined the economics literature and find that only one in one thousand publications are replication studies. The introduction of mandatory data disclosure policies may help to increase the likelihood of replication.
Academia is facing a quality challenge: the global scientific output doubles every nine years, while the number of retractions and instances of misconduct is increasing. In this regard, replication studies can be seen as important post-publication quality checks, in addition to the established pre-publication peer review process. It is for this reason that replicability is considered a hallmark of good scientific practice. But what can be done in order to increase the number and the share of replicated publications?
In our recent research paper, published in Research Policy, we explore how often replication studies are published in empirical economics and what types of journal articles are replicated. We find that between 1974 and 2014 just 0.1% of publications in the top 50 economics journals were replication studies. We provide empirical support for the hypothesis that higher-impact articles and articles by authors from leading institutions are more likely to be replicated, whereas the replication probability is lower for articles that appeared in top-five economics journals. Our analysis also suggests that mandatory data disclosure policies may have a positive effect on the incidence of replication.
Scientific research plays an important role in the advancement of technologies and the fostering of economic growth. Hence, the production of thorough and reliable scientific results is crucial from a social welfare and science policy perspective. However, in times of increasing retractions and frequent instances of inadvertent errors, misconduct, or scientific fraud, scientific quality assurance mechanisms are subject to a high level of scrutiny. Issues regarding the replicability of scientific research have been reported in multiple scientific fields, most notably in psychology. A 2015 report by the Open Science Collaboration estimated the reproducibility of 100 studies in psychological science from three high-ranking psychology journals. Overall, only 36% of the replications yielded statistically significant effects compared to 97% of the original studies that had statistically significant results. However, similar issues have been reported from other fields. For example, Camerer and colleagues attempted to replicate 18 studies published in two top economics journals '-- the American Economic Review and the Quarterly Journal of Economics '-- between 2011 and 2014 and were able to find a significant effect in the same direction as proposed by the original research in only 11 of 18 replications (61%). Considering the potential impact that economic research has on society, for example in a field like evidence-based policymaking, there is a particular need to explore and understand the drivers of replication studies in economics in order to design favourable boundary conditions for replication practice.
We explore formal (i.e. published) replication studies in economics by examining which and how many published papers are selected for replication and what factors drive replication in these instances. To this extent, we use metadata about all articles published in the top 50 economics journals between 1974 and 2014. While there are also informal replication studies that are not published in scientific journals (especially replications conducted in teaching or published as working papers) and an increasing number of other forms of post-publication review (e.g. discussions on websites such as PubPeer), these are not covered within our approach.
Between 1974 and 2014, 0.1% of publications in the top 50 economics journals were replication studies. We find evidence that replication is a matter of impact: higher-impact articles and articles by authors from leading institutions are more likely to be replicated, whereas the replication probability is lower for articles that appeared in top-five economics journals. Our results also suggest that mandatory data disclosure policies may have a positive effect on the replication probability.
Based on our findings, we argue that replication efforts could be incentivised by reducing the cost of replication, for example by promoting data disclosure. Our results further suggest that the decision to conduct a replication study is partly driven by the replicator's reputation considerations.
Arguably, the low number of replication studies being conducted could potentially increase if replication studies received more formal recognition (for instance, through publication in [high-impact] journals), specific funding (for instance, for the replication of articles with a high impact on public policy), or awards. Since replication is, at least partly, driven by reputational rewards, it may be a viable strategy to document and reward formal as well as informal replication practices.
This blog post is based on the authors' article, ''Replication studies in economics'--How many and which papers are chosen for replication, and why?'', published in Research Policy (DOI: 10.1016/j.respol.2018.07.019).
Featured image credit: Xiang Gao, via Unsplash (licensed under a CC0 1.0 license).
Note: This article gives the views of the authors, and may not in any circumstances be regarded as stating an official position of the European Commission, the LSE Impact Blog, nor of the London School of Economics.
About the authors
Frank Mueller-Langer is Senior Research Fellow at the European Commission, Joint Research Centre, Digital Economy Unit, Spain, and Affiliated Researcher at the Max Planck Institute for Innovation and Competition, Germany.
Benedikt Fecher is Head of the Research Project ''Knowledge Dimension'' at the Alexander von Humboldt Institute for Internet and Society, Germany, and Research Fellow at the German Institute for Economic Research (DIW Berlin), Germany.
Dietmar Harhoff is Director at the Max Planck Institute for Innovation and Competition, Germany.
Gert G. Wagner is Research Associate at the Alexander von Humboldt Institute for Internet and Society, Germany, Senior Research Fellow at the German Institute for Economic Research (DIW Berlin), Germany, and Max Planck Fellow at the MPI for Human Development, Germany. His ORCID is: 0000-0002-5985-4073.
''
Royal Academy of Music teacher wrongfully sacked for referring to violinists as 'gypos', tribunal rules
Sat, 24 Nov 2018 15:57
Professor Francesca Carpos-Young was dismissed from her post last year Credit: Paul Davey/SWNS A Royal Academy of Music teacher was wrongfully dismissed for referring to violinists as 'gypos', a tribunal ruled.
Professor Francesca Carpos-Young, an internationally renowned bassoonist, was dismissed from her post last year after she circulated a note to 800 students on how to earn a ''good reputation''.
Within it she pointed out what the musicians might expect in the 'real world' by explaining terms students could expect to hear.
Dr Carpos wrote: ''Gypos (short for gypsies) = violinists specifically'' while also explaining that string players are known as ''pond life'' who are expected to drink in ''tea rooms'' while the brass section is more likely found in the pub.
However one student described the comments as "shameful stereotyping".
Francesca Carpos with the singer Sir Tom Jones, posted on her Facebook page Credit: Facebook A n open letter was then signed by 58 students saying the professor was "a symptom of a much broader and deeper failure to live up to institutional aims regarding equality and diversity".
However chairwoman Judge Sarah Goodman ruled Prof Carpos-Young, 59, had not intended this to happen and that her words had been taken out of context.
"They were ironic in tone, intended to convey the real world in which instrumentalists and singers would have to find work and build a career, and how to behave to get on in precarious world of sessional booking,'' she said.
W hile the Royal Academy criticised the professor for not 'framing' exactly what she meant, Judge Goodman added that "at most the claimant can be accused of foolishness in failing to anticipate how a superficial readership might wrench some of the terms out of context and manufacture a sense of outrage that was entirely disproportionate (on a plain reading of her notes and email) to the document's plain intent''.
The Royal Academy of Music took action after students criticised her choice of langauge in an open letter Credit: SWNS P rof Carpos-Young told the central London tribunal she was raising awareness of inequality in her industry.
The professor, who is a Fellow of the Royal Society of Arts, said the notes were referencing findings she had made interviewing more than 100 musicians for her PhD over discrimination in their industry.
In a written ruling employment Judge Goodman and colleagues upheld her claims for wrongful dismissal and victimisation.
The possibility of Prof Carpos-Young resuming her old job will now be discussed at a remedy hearing when compensation will be agreed.
Welcoming the ruling, Prof Carpos-Young said: "It was hugely painful for me to lose the job I loved, and to suffer such significant damage to my reputation as a musician and teacher in the circumstances that I did.
"It has been an extremely difficult year for me and my family, but I am delighted by this outcome, and I am looking forward to moving on with my career."
Essay: The Experiments Are Fascinating. But Nobody Can Repeat Them. - The New York Times
Sat, 24 Nov 2018 15:55
Science Times at 40
Science is mired in a ''replication'' crisis. Fixing it will not be easy.
Image Replication is important to scientists, because it means the finding might just be real. But scientists are wary of a replication crisis and fear its corrosive effects on public trust in science. Credit Credit via Library of Congress At this point, it is hardly a surprise to learn that even top scientific journals publish a lot of low-quality work '-- not just solid experiments that happen, by bad luck, to have yielded conclusions that don't stand up to replication, but poorly designed studies that had no real chance of succeeding before they were ever conducted.
Studies that were dead on arrival. We've seen lots of examples.
In 1996, a psychology study claimed that unobtrusive priming '-- the insertion of certain innocuous words in a quiz '-- could produce consistent behavioral change.
That paper got cited by other scientists a few thousand times '-- before failed replications many years later made it clear that this finding, and much of the subsequent literature, was little more than researchers chasing patterns in noise.
As a political scientist, my personal favorite was the survey finding in 2012 that women were 20 points more likely to support Barack Obama for president during certain days of their monthly cycle.
In retrospect, this claim made no sense and was not supported by data. Even prospectively, the experiment had no chance of working: the way the study was conducted, the noise in estimating any effect '-- in this case, any average difference in political attitudes during different parts of the cycle '-- was much larger than any realistically possible signal (real result).
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We see it all the time. Remember the claims that subliminal smiley faces on a computer screen can cause big changes in attitudes toward immigration? That elections are decided by college football games and shark attacks? These studies were published in serious journals or promoted in serious news outlets.
Scientists know this is a problem. In a recent paper in the journal Nature Human Behaviour, a team of respected economists and psychologists released the results of 21 replications of high-profile experiments.
Replication is important to scientists, because it means the finding might just be real. In this study, many findings failed to replicate. On average, results were only about half the size of the originally published claims.
Here's where it gets really weird. The lack of replication was predicted ahead of time by a panel of experts using a ''prediction market,'' in which experts were allowed to bet on which experiments were more or less likely to '-- well, be real.
Similar prediction markets have been used for many years for elections, mimicking the movement of the betting line in sports. Basically, the results in this instance indicated that informed scientists were clear from the get-go that what they were reading would not hold up.
So yes, that's a problem. There has been resistance to fixing it, some of which has come from prominent researchers at leading universities. But many, if not most, scientists are aware of the seriousness of the replication crisis and fear its corrosive effects on public trust in science.
The challenge is what to do next. One potential solution is preregistration, in which researchers beginning a study publish their analysis plan before collecting their data.
Preregistration can be seen as a sort of time-reversed replication, a firewall against ''data dredging,'' the inclination to go looking for results when your first idea doesn't pan out.
But it won't fix the problem on its own.
The replication crisis in science is often presented as an issue of scientific procedure or integrity. But all the careful procedure and all the honesty in the world won't help if your signal (the pattern you're looking for) is small, and the variation (all the confounders, the other things that might explain this pattern) is high.
From this perspective, the crisis in science is more fundamental, and it involves moving beyond the existing model of routine discovery.
Say you wish to study the effect of a drug or an educational innovation on a small number of people. Unless the treatment is very clearly targeted to an outcome of interest (for example, a math curriculum focused on a particular standardized test), then your study is likely to be too noisy '-- there will too many variables '-- to pinpoint real effects.
If something at random does turn up and achieve statistical significance, it is likely to be a massive overestimate of any true effect. In an attempt at replication, we're likely to see something much closer to zero.
The failed replications have been no surprise to many scientists, including myself, who have lots of experience of false starts and blind alleys in our own research.
The big problem in science is not cheaters or opportunists, but sincere researchers who have unfortunately been trained to think that every statistically ''significant'' result is notable.
When you read about research in the news media (and, as a taxpayer, you are indirectly a funder of research, too), you should ask what exactly is being measured, and why.
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Andrew Gelman is a professor of statistics and political science at Columbia University.
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AI conference widely known as 'NIPS' changes its controversial acronym
Sat, 24 Nov 2018 15:54
The major machine-learning meeting, now to be called NeurIPS, has faced increasing criticism over its name.
The board that runs a leading machine-learning conference has decided to stop using the acronym commonly used to refer to the event '-- NIPS '-- following a long-running row over whether it is offensive.
The annual meeting '-- the full name of which is Neural Information Processing Systems '-- will now go by the moniker NeurIPS, the NeurIPS foundation board of trustees, which oversees the annual conference, has said. The change will apply immediately and will be in force at the next meeting in early December.
The move reverses the board's decision in October not to change the acronym, and comes after weeks of mounting pressure about the name and the hostile environment that some women say they have experienced at the event in the past.
In April, the NIPS Twitter account said that the board would consider a name change, following a letter signed by more than 120 academics from Johns Hopkins University in Baltimore, Maryland, calling for the conference to be rebranded.
The letter highlighted ''disappointing behavior'' at the 2017 event and said that the ''acronym of the conference is prone to unwelcome puns''. It gave examples from previous years such as an unofficial pre-conference event named TITS.
The board subsequently ran a survey of previous attendees to see what they thought about changing the name. And on 17 October, it announced that it would not change the name after 30% of respondents agreed or strongly agreed that the name should change, including 44% of all women who voted.
Many machine-learning researchers reacted angrily to the news. And a petition stating that the NIPS acronym ''encourages sexism and is a slur'', launched by Anima Anandkumar, a machine-learning researcher at the California Institute of Technology in Pasadena, garnered almost 2,000 signatures.
On 16 November, the board of the conference announced in a statement that the abbreviation NeurIPS had ''sprung up organically as an alternative acronym''. ''We're delighted to see it being adopted,'' they add.
The board writes that a ''forward-thinking member of the community'', Peter Henderson, a PhD student at Stanford University in California, purchased the website neurips.com. The board quotes him as stating that he would ''host the conference content under a different acronym '... until the board catches up''.
''We've caught up!'' says the board in its statement. ''We ask all attendees this year to respect this solution from the community and to use the new acronym in order that the conference focus can be on science and ideas.''
All signage and the programme booklet will contain either the full conference name or the new abbreviation, the board members say. They have also asked sponsors to update their material and publicity accordingly, and will hire a branding company to design a new logo for the event, which starts on 2 December in Montreal, Canada.
Anandkumar, tweeted that NeurIPS was a compromise. ''I wish we could have started with a clean slate and done away with problematic legacy,'' she said on 17 November.
doi: 10.1038/d41586-018-07476-w
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Duke University to settle case alleging researchers used fraudulent data to win millions in grants | Science | AAAS
Sat, 24 Nov 2018 15:53
uschools/istockphoto
By Ivan Oransky, Retraction WatchNov. 19, 2018 , 12:10 PM
Duke University in Durham, North Carolina, is on the verge of settling a case brought by a former employee who claims the university included faked data in applications and reports for federal grants worth nearly $200 million.
According to court documents filed last week in the Middle District of North Carolina in Greensboro, former Duke biologist Joseph Thomas, who sued the university in 2015 under a federal law that allows whistleblowers to receive as much as 30% of any payout, is waiting for the U.S. Department of Justice to approve the settlement. Thomas brought his case under the federal False Claims Act (FCA), which could force Duke to return to the government up to three times the amount of any ill-gotten funds.
The terms of the settlement are not yet known, but are expected to be disclosed at a hearing scheduled for 7 December.
Universities have been watching the case with interest. FCA claims against universities have been relatively rare, and a hefty settlement could prompt other academic whistleblowers to file similar cases, although private universities might be more vulnerable than public institutions. Regardless of the final settlement, the Duke case sends ''the strong message to private institutions '... go back and look at your grants because otherwise, you're susceptible to a very large and ugly lawsuit that's going to damage your programs,'' says attorney Joel Androphy of Berg & Androphy in Houston, Texas, who specializes in FCA cases.
In his suit, Thomas alleged that Duke biologist Erin Potts-Kant'--who has now had 17 papers retracted, including many that reported on work done with her supervisor, pulmonology research William Michael Foster'--included fraudulent data in 60 grant applications and reports. Potts-Kant had earlier pleaded guilty to embezzling more than $25,000 from Duke; that case prompted university officials to scrutinize her lab.
Duke declined to comment on the proposed settlement. Attorneys for the plaintiff, who include John Thomas, formerly of Gentry Locke LLP in Roanoke, Virginia, and now of Healy Hafemann Magee, tells Science and Retraction Watch, ''We are pleased that the parties have reached a settlement,'' but declined further comment. (Joseph Thomas is John Thomas's brother.)
Androphy says such cases typically settle for 1.5 to two times the amount that plaintiffs prove was fraudulently obtained. Last year, Partners HealthCare and the Brigham and Women's Hospital in Boston settled an FCA case involving faked data for $10 million.
Androphy said the length of this case'--3.5 years'--is shorter than what he usually sees. And he said he would not be surprised if, in its final settlement, the government requires Duke to agree to an enhanced compliance program for grants. A hint of such a program surfaced in March, when the National Institutes of Health (NIH) told Duke'--in an unusual move'--that its grant recipients would have to obtain prior approval for any changes to new or existing grants. The new oversight, according to a letter from NIH to Duke, is ''a result of its concerns about Duke's management of several research misconduct cases and grant management issues that date back to 2010, some of which have been widely reported like the Anil Potti case.''
Last year, the Thomas case survived Duke's motion to dismiss. In the course of the case, Potts-Kant admitted to faking data, and Duke acknowledged that it knew she had. Available court records, however, suggest Duke maintained that it did not discover the faked data until after the university submitted the grants in question.
In September, Duke suffered a setback in the case after a judge's ruling led to the release of numerous entries from a diary kept by Joseph Thomas that describe conversations among lab members. Joseph Thomas alleged they show that various researchers had knowledge of wrongdoing.
This story was produced under a collaboration between Science and Retraction Watch.
The collapse of this cannabis stock offers a valuable lesson to every investor - MarketWatch
Sat, 24 Nov 2018 15:51
India Globalization Capital's chief executive boasted in February that his was the only cannabis company that was using blockchain technology '' combining two of the hottest investment trends.
The CEO, Ram Mukunda, went on to say that ''2018 is a very exciting year for us with a lot of milestones investors can watch for.''
Indeed, for investors, it has been quite a ride. Shares of IGC IGCC, -3.65% surged 35-fold, to $13 from 37 cents between Aug. 13 and Oct. 2, as the company promised cannabis-based treatments for conditions including Alzheimer's, Parkinson's, eating disorders, and even epilepsy in cats and dogs.
But after MarketWatch reported on potential warning flags last month, its shares plunged more than 80%.
Other details have emerged that raise questions about the company. Its chief scientific officer has been accused of falsifying data in scientific papers. Another employee, who is named as a co-inventor of a cannabis-based pain treatment in an IGC patent filing, was reprimanded and fined by the West Virginia Board of Medicine last year for failing to disclose that he pleaded guilty to felony tax fraud in 2012, according to state filings.
And while IGC says on its website that it is rigorously studying cannabis, the company has spent only $137,000 in fiscal 2018 on research and development, according to its annual report. It has spent $274,000 in the first two quarters of fiscal 2019, according to another securities filing. In comparison, the average sum for a Phase 2 clinical trial of a treatment for pain is $17 million, according to CenterPoint, which advises on clinical trials.
Trading in the shares of IGC was halted on Oct 29. The NYSE American exchange said it would delist IGC's stock. IGC said that it ''strongly disagrees'' with the NYSE decision and is now seeking a listing on ''an exchange that embraces our innovation.''
Read now: Dubious pot stock IGC has trading suspended, shares to be delisted
Related: When a stock is delisted do you lose everything? Likely yes, says SEC
But investors who had backed Mukunda's company over the last year are now left nursing millions of dollars in losses.
The swift rise and fall of the shares of IGC '' a company that started as a blank-check company '' is a cautionary tale for investors contemplating the fast-growing cannabis industry. Money has flooded into companies that want to capitalize on marijuana being legalized for medical or recreational use.
With any hot new product, innovation or growth industry '' from dot-com stocks to bitcoin '' there are companies with sales and earnings and those that chiefly have ambitions. Cannabis companies are no different. Investors would be prudent to learn as much as they can about these companies and their business.
In a statement, IGC said that it ''is working very hard every day to succeed in our business lines and deliver value to our shareholders. Any suggestion to the contrary is both reckless and baseless.'' ''IGC continues to operate in the Asian infrastructure space as well as the medical cannabis industry,'' it added.
Photograph taken Oct. 2 at the address in suburban Washington, D.C., listed by India Globalization Capital Inc. as its headquarters.White-bearded and bespectacled, Mukunda cuts a professorial figure. His decades-long career began with satellite telecommunications and voice-over-internet phone calls before moving on to commodities trading, real estate investment, and medical marijuana.
Mukunda, 59, grew up in Connecticut and has bachelors degrees in electrical engineering and mathematics and a masters degree in engineering from the University of Maryland. In 1990, he founded Startec Global Communications, a Bethesda-based provider of voice-over-internet-protocol services that targeted immigrants to the U.S. The company went public at $12 in 1997; its stock soared to $29.88 in March 2000.
But then the dot-com and telecoms bubble burst. Startec filed for bankruptcy in 2001, and Mukunda left the company.
He started IGC in 2005 as a blank-check company looking to acquire or merge with businesses operating in India. Over several years, according to a corporate history on IGC's website, Mukunda's company bought a stake in a construction equipment leasing business in India; it started trading commodities like iron ore and cement; and it acquired a Malaysian real estate company.
Combined, these businesses generated less than $20 million in revenue in its first years, peaking at revenue of $35 million in fiscal 2009, before that number gradually fell back to just $2 million in fiscal 2014, according to the company's SEC filings.
But then the potential for marijuana emerged. By 2013, ''we started exploring opportunities in the then nascent and emerging cannabis industry as a way to become a first mover in this exciting business segment,'' IGC's website states.
From a standing start, the business developed quickly. IGC filed its first cannabis-related patent '' for pain treatment '' in 2014. (It has not yet sold any cannabis-based products. In fiscal 2018, it had about $2 million in revenue, all from legacy infrastructure, according to securities filings.)
It has filed another six cannabis patents, including one for Hyalolex, a formula that IGC says can ''address the primary indicators of Alzheimer's, plaques and tangles, as well as alleviate several end points of the disease like anxiety and sleep disorders.''
But health experts have questioned whether a cannabis product can treat symptoms of Alzheimer's. The American Alzheimer's Association, viewed as an authority on the disease, declined to comment on IGC or Hyalolex. But it says there has been very little research on the efficacy of cannabis or any of its ingredients in treating the disease or its symptoms.
Mukunda has said in releases and interviews that IGC is pursuing U.S. Food and Drug Administration approval for Hyalolex, and is currently in the preclinical stage, with trials planned for 2019. But the FDA's website shows no applications for trials from IGC or Mukunda. The FDA declined to comment.
Plans for a cannabis beverage drink also seem unclear. A September press release says the company will combine ''the experience of IGC with Hyalolex'' with a manufacturer in Malaysia. That country, however, has strict anti-drug laws. ''Marijuana or any form of products including CBD oil is illegal in Malaysia,'' said Erny Sabrina Mohd Noor, counselor for agriculture at the Malaysian Embassy in Washington, D.C.
IGC said the cannabis-related infusion would occur only in the U.S. ''The Malaysian manufacturer plays no role in the cannabis-related components of the manufacturing process,'' the company said.
IGC promotes its cannabis expertise, saying in documents that the ''depth of our team's collective knowledge is unrivaled.''
In 2017, IGC's chief scientific officer, Jagadeesh Rao, was accused of falsifying data in scientific papers published in the Journal of Neurochemistry and in the International Journal of Neuropsychopharmacology according to Retraction Watch, a website that tracks retractions in scientific publications. The journals retracted the articles.
IGC did not respond to questions about Rao and did not make him available. He could not be located for comment.
Read also: MedMen cuts fundraising round nearly in half, as CFO quits
Dr. Ranga Krishna, the IGC staffer named as co-inventor of a cannabis-based pain treatment in an IGC patent filing, pleaded guilty to felony tax fraud in 2012. He was sentenced to five years of probation, fined $94,090 and ordered to pay another $47,040 in restitution. A consent order in January 2017 from the West Virginia Board of Medicine shows that Dr. Krishna was reprimanded for failing to disclose the conviction when applying to have his license in that state renewed. That board also fined him.
Dr. Krishna did not respond to requests for comment left at his office in Brooklyn. IGC did not respond to questions about him and did not make him available.
To see all of MarketWatch's coverage of the cannabis sector, click here.
Professional stock promoters have pushed IGC stock to retail investors, who own 85% of the publicly available shares, according to FactSet. One such promoter is SeeThruEquity, which was sued on Nov. 8 by the SEC. In the civil complaint filed in the Federal District Court in Manhattan, the SEC accused SeeThruEquity and its co-founders of defrauding investors by issuing ''unbiased'' research reports on certain publicly traded company -- including IGC -- that were actually paid for by the companies themselves. SeeThruEquity did not respond to requests for comment.
See: SEC charges stock research firm, co-founders with fraud for charging companies to produce supposedly unbiased reports
IGC also has distributors that cannot be located. The company said in a press release in March that its partner in Puerto Rico was a company named Dama Pharma. That company was incorporated just three days before IGC's announcement. Its website is incomplete and shows that it has just one employee. Attempts to reach Dama Pharma were unsuccessful.
IGC has said that it is working with a distribution partner in Germany called Medicann Handels GmbH. A website with that name set up in May 2017 claims to sell cannabis for medical use. A search of the site, which is partly under construction, found no mention of Hyalolex. A page headed ''Our Stores'' has headings for Oslo, Stockholm, New York, and London, but the page for each of those locations actually shows a map of Central Park. Medicann's site has no phone number and no email address. Its address is listed as Sesame Street.
''You have to read more about a company than just the headlines,'' says Jon Lukomnik, the executive director of the Investor Responsibility Research Center, a nonprofit organization that funds research on how investors and companies make decisions as well as environmental, social and corporate governance research. ''Any time a company suddenly announces a pivot to a hot new space like blockchain, crypto or now cannabis, there should be a big 'buyer beware' sign flashing for investors.''
We must stop Gerard Batten turning Brexit into a plaything of the far Right
Sat, 24 Nov 2018 14:51
T he news that Gerrard Batten, Ukip's leader, has appointed Tommy Robinson as a ''personal special adviser'' appals me.
Robinson, whose real name is Stephen Yaxley-Lennon, has a long criminal history including several spells in prison. He was instrumental in founding the thuggish anti-Islam group known as the English Defence League. Perhaps most importantly, his appointment could have a negative impact on the fragile state of Brexit.
Today, the UK stands on the brink of national disaster partly because our dishonest prime minister has not been held to account sufficiently in her dealings with Brussels. Millions of voters are furious at the way the political class has betrayed them. And yet Ukip,...
US, Korea, China Stock Markets Plummet: is Crypto Correlated?
Sat, 24 Nov 2018 14:47
The crypto market is continuing to lose its value as the U.S., South Korea, and China demonstrate record high losses in their respective stock markets.
As an alternative store of value, cryptocurrencies are considered as viable long-term investments, especially by millennials, in a period of global financial market instability and volatility. However, recent weeks have shown that cryptocurrencies are still vulnerable to the weakening global economy and the asset class is not able to perform as a hedge against uncertainties in the market.
Global Markets CrashA lack of correlation is not equivalent to an inverse correlation. Merely because an asset is not affected by a certain catalyst, which in the case of crypto could be the instability of the global market, it does not mean that the asset increases in value as a result.
Historically, the crypto market has demonstrated a lack of correlation with the global stock market and traditional markets like equities. It has consistently recorded independent price movements regardless of how the financial market performs.
Over the past several weeks, as investors began to head towards the exit of stock markets fearing a further drop in U.S. stocks, the price of major cryptocurrencies like Bitcoin (BTC) and Ethereum (ETH) plunged by more than 35 percent.
The U.S. stock market is experiencing one of its worst sell-offs in history and the trade war between the U.S. and China has led to a decline in the valuation of the Chinese stock market. Overnight, Shenzhen Composite fell 3.3 percent and Shanghai Composite dropped 2.5 percent.
The weakening U.S. and Chinese markets directly affected the economy of South Korea, which was already in decline due to the country's struggling growth rate. The Kospi fell by 1.2 percent in the past two days and investors generally expect the instability of U.S. and Chinese markets to be sustained.
Alvin Cheung, associate director for Prudential Brokerage, told SCMP:
''There is a lot of negative news about the US criticising China before Trump and Xi meet next week, and that has dented sentiment. The mixed messages could be the US trying to win some bargaining chips for the upcoming meeting. Investors are on the sidelines, closely watching to see if the meeting will yield any concrete results.''
The trend of the global market is gearing towards the elimination of high-risk stocks, equities, bonds, and assets, which includes crypto. The short-term price drop of the market was triggered by the in-fighting of Bitcoin Cash and Bitcoin Cash SV, but the crippling global economy is said to be one of the major catalysts of the declining momentum of cryptocurrencies.
When Will Crypto Demonstrate Inverse Correlation?Crypto could become a store of value, like gold, that is used by investors to hedge against the global economy. However, due to a lack of liquidity and infrastructure for retail traders, cryptocurrencies are not capable of operating as a hedging tool for large-scale investors.
As the market develops and the industry grows, better liquidity products will become available for both institutional and retail investors. Only then, crypto could potentially work as an inversely correlated asset to the global financial market.
Featured image from Shutterstock.
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If You've Ever Eaten Pizza Before, This Will Blow Your Mind (Maybe Literally)
Sat, 24 Nov 2018 14:22
I love pizza! It's one of my top favorite foods next to kale and cake. And I know I'm not the only one that loves it, either. Recently, the USDA conducted a study which revealed the enormous amount of pizza we consume in the United States. American consumption of cheese increased by nearly 30% in 10 years because the dairy industry is spending big bucks to promote pizza and partner with big chains like Dominos. Congress even voted to declare pizza a vegetable in the school lunch program. The government wants us to eat pizza '' a lot of it. But there's a lot going on behind closed doors that nobody wants us to know or talk about, and it all starts with the ingredients.
When I started researching pizza ingredients, one thing became abundantly clear. Pizza restaurants did not like the questions I was asking.
The only way to find out what may be lurking in your pizza is to review its complete ingredient list, which is often concealed from the public. I began calling the top pizza chains and easily found a couple ingredient lists online. But, when I called most pizza restaurants and began asking questions, they blatantly refused to share ingredient lists and their customer service reps were oblivious to what their ingredients were '' they had no clue.
Little Caesars, California Pizza Kitchen (CPK) and Mellow Mushroom have all refused to answer my questions about their ingredients. I was told by Mellow Mushroom's corporate offices that they will only comply with minimal government regulations, which require them to publish an allergen list.
After sending me their dough ingredients, CPK suddenly claimed that due to ''proprietary restrictions'' they can't disclose their full ingredient lists. They went on to tell me that they ''don't have an easy way to perform a search by individual ingredient'' and would need to call each vendor first. While traveling, I stopped into a CPK in an airport to ask questions face to face. Both the manager and store clerk had zero access to ingredients. I even asked to look at the packages of their dough and other ingredients that got shipped to the store in and they said they did not have them.
I called many local pizza restaurants and was informed that it's their policy to NOT disclose ingredients to their customers. Little Caesars literally told me that if I was concerned about what was in it, I ''just shouldn't eat there'...'' Ha! Don't worry, I won't!
Papa John's also has repeatedly refused to release their ingredient list, which really caused a stir last year with my friend Melanie Warner, author of the processed food exposing book ''Pandora's Lunchbox''. How can Papa John's claim to have ''Better Ingredients'... Better Pizza'' without telling us what's really in it? While they say their lack of transparency is due to the proprietary nature of their recipes, they could be hiding some seriously harmful ingredients. After repeated calls to corporate offices and some helpful photos sent to me by Melanie Warner, I was finally able to uncover some details about what is really in their pizzas.
Why are the ingredients so hard to find? Why are they refusing to share their ingredients? What is it that these pizza restaurants don't want us to know?
Well, I'll tell you what they're hiding: Lots and lots of hidden MSG!
Restaurants don't want to get a bad rap by putting monosodium glutamate (MSG) on their ingredient or allergen statements, so they have found another way to secretly add this potent flavor enhancer to your food, without the average customer realizing it. Instead of letting you know that they are putting MSG in your food, they are using an FDA loophole to sneak processed free glutamic acid into your food, which has the same effect as MSG '' all without warning you. They simply use other forms of free glutamic acid (such as Hydrolyzed Soy Protein), which is the main component of MSG. This allows them to have ''clean labels'' and deceive us into believing their product contains no MSG '' when it actually does!
While it's true that tomatoes and cheese are naturally high in glutamates, they do not have the same effect on the brain as added manufactured free glutamic acid additives. When I talked to Papa John's, they admitted that these additives are used as a replacement for MSG by the food industry.
It will blow your mind '' literally
MSG tricks your brain into believing that what you are eating tastes so great that you want more of it. Your taste buds sense that there is more protein in the food than there really is '' which is great for food manufacturers that want to save money by using less or lower quality meat. These ingredients also promote an addiction to pizza so that you keep coming back to order more. Repeat business keeps their pockets lined with lots of cash. Ever wonder why you can't stop at one slice? This is why.
MSG and hidden MSG additives are known to commonly cause headaches, obesity and depression '' and this is just the tip of the iceberg. As an excitotoxin, its effect on the brain is so toxic that it has been linked to learning disabilities, Alzheimer's disease, Parkinson's disease, and Lou Gehrig's disease. Board certified neurosurgeon Russell Blaylock, M.D. warns that, ''Excitotoxins have been found to dramatically promote cancer growth'... It also causes a cancer cell to become more mobile, and that enhances metastasis, or spread'... When you increase the glutamate level, cancer just grows like wildfire''.
This is serious stuff. But the industry will tell you it's harmless and that you are crazy for being concerned.
Don't make the mistake of thinking that it is okay to eat this stuff occasionally, because these ingredients can stick around in your body for a long time, leach nutrients from your system, and can make you really sick. As put by my pal Kristen Michaelis at FoodRenegade.com, ''Not only is MSG not a traditional food, not only are many people immediately sensitive to it, but it can also interrupt the hormonal and biological development of children! Lest you think this is all fanciful, it's important to remember that a number of studies have found that the effects of MSG can occur cumulatively over time with subsequent exposure.''
Toxic hidden MSG ingredients buried in popular pizza menu items:
Autolyzed Yeast Extract (Hidden MSG)Textured or Hydrolyzed Proteins (Hidden MSG and GMO)Hydrolyzed Corn (Hidden MSG and GMO)Modified Starches (Hidden MSG or Possible GMO)Natural Flavors (Possible Hidden MSG)Disodium Inosinate or Disodium Guanylate (MSG enhancers)The additives Disodium Guanylate and Disodium Inosinate are not added to a product that doesn't contain MSG because they are considered expensive additives that are ineffective without MSG ingredients. The presence of Disodium Guanylate or Disodium Inosinate in a product is a strong indication that a product contains hidden MSG.
I'm talking about more than MSG here
The ingredient lists that I could get my hands on are riddled with artificial colors, artificial and natural flavors, partially hydrogenated oils, cellulose (wood pulp) to keep the already shredded cheese from clumping, and GMO soybean oil.
Partially Hydrogenated Oils (Trans-fat) '' There is absolutely no reason for anyone to still be using this. These oils are so bad that even our FDA has woken up and warns that it's not safe to eat this in any food. Partially hydrogenated oils block arteries and the CDC estimates that they could cause up to 20,000 heart attacks every year! I found these dangerous oils in Pizza Hut's hand-tossed crust, Round Table's Creamy Garlic sauce, Papa John's dipping sauces and Dominos Philly Steak pizza. Partially hydrogenated oils are found in 21 menu items at Cici's Pizza '' it's even added to their cheese!
Soybean Oil (likely GMO) '' You'd hope to see just olive oil in there, but soybean oil is the oil of choice for most pizza restaurants. It's in the dough and pizza sauces, so it basically makes its way into every pizza. This genetically engineered inflammation causing oil is being used at these restaurants:
Papa John'sDomino'sPizza HutUno Pizzeria Papa Murphy'sLittle CaesarsCici'sMellow Mushroom '' ''Soybean oil is a major ingredient in our pizzas''California Pizza Kitchen '' ''our Ciabatta Bread and our Wheat Dough do contain Soybean Oil''Round Table Pizza '' Creamy Garlic sauceBHT/BHA (Butylated Hydroxytoluene.Butylated Hydroxyanisole) '' BHT is used in embalming fluid and to fuel jets. BHA is toxic to your organs and linked to cancer. These were found in the pepperoni on every ingredient list I looked at from Uno's to Dominos.
Sodium Nitrite '' Whenever this is added to a meat, there is a really good chance that it contains cancer-causing Nitrosamines. Nitrites are often found in the pepperoni, ham, bacon and sausage toppings.
Enriched Flour '' This is a dead food that has had some vitamins and minerals artificially replaced. It's absorbed by your body as a starch, rather than a whole grain. This flour is used in pizza dough, except the gluten-free versions.
Artificial Colors '' These are petroleum-based colorings linked to asthma, allergies and hyperactivity. I found them in the banana pepper toppings, the cheese at Cici's, and specifically in the garlic oil used by Domino's.
Caramel Coloring '' This is often made by heating ammonia and sulfites under high pressure which creates carcinogenic compounds. You'll find this very controversial coloring in the bacon at Pizza Hut, the Italian sausage at Round Table, the beef at Little Caesars, the zesty pizza sauce at Cici's and in the BBQ Chicken pizza at Uno's.
BPA (Bisphenol A ) '' You won't find this on any ingredient label, but BPA leaches from the cans that hold pizza sauce in some restaurants. Many fast food pizza chains use canned tomato sauce that could have BPA. This substance exposure increases your risk for cardiovascular disease, breast cancer, prostate cancer, diabetes and a slew of other medical problems.
How these pizza restaurants stack up
Papa John's '' They add a lot to their ''Better Ingredients''. For instance, their ''100% Beef'' topping is a lot more than just beef! It contains corn syrup, maltodextrin, natural flavor, natural smoke grill flavor, beef flavor and seasonings. Also, so much for believing that there is 100% real cheese topping their pizzas, as they add modified food starch (hidden MSG), preservatives and powdered wood pulp (cellulose) to their cheese blend. They also add natural flavors to their thin crust, pepperoni, and chicken topping, as well as hidden MSG (autolyzed yeast extract) to their garlic ranch and spinach alfredo pizza sauces. Those little dipping sauces that come with your pizza are loaded with partially hydrogenated oil, GMOs and (you guessed it) more hidden MSG.
Update: In June 2015 Papa Johns announced they're removing 14 ingredients by the end of 2016, including artificial colors, caramel color, the preservative sodium benzoate, and hidden MSG ingredients like autolyzed yeast extract and hydrolyzed proteins. They have also listed ingredients on their website (however this list is not entirely complete as they don't publish the ingredients in some of their seasonings, such as in their beef topping).
Domino's '' One of the few pizza restaurants that openly publishes their ingredients online '' and their ingredient list has hidden MSG written all over it. It's almost impossible to avoid at Dominos, as it's in their cheese, marinara sauce, white sauces, BBQ sauce and a slew of toppings (chicken, beef, Italian sausage and Philly steak). They also add ''flavors'' to their pan crust, cheese, pepperoni and shake-on seasoning. The garlic oil used on nearly every pizza is NOT what you'd expect (garlic & oil). It's actually a toxic combo of over 20 ingredients including artificial colors, artificial flavors and TBHQ.
Pizza Hut '' You get a lot more than ''100% Real Beef'' in this topping loaded natural and artificial flavors. Their sausage and bacon toppings have hidden MSG (autolyzed yeast or hydrolyzed proteins), and you are eating modified starches in their cheese, chicken and cream sauce (starches usually derived from GMO corn). The garlic sauce and seasoning used on every hand-tossed pizza is loaded with natural flavors, artificial flavors and partially-hydrogenated GMO oils. Pizza Hut recently reformulated their hand-tossed crust by replacing the high fructose corn syrup with sucralose (Splenda) '' an artificial sweetener that has been shown to cause DNA damage to the gastrointestinal tract, reduces beneficial gut bacteria, and is linked to inflammatory bowel disease. Recent research indicates that sucralose is linked to leukemia.
Round Table '' ''The Last Honest Pizza'' honestly adds straight ''Glutamic Acid'' to their creamy garlic sauce. They add hidden MSG ingredients to their pizza sauces, chicken and sausage toppings. Their cheese is far from ''100% real'' with ''Natural Smoke Flavoring'' and cellulose.
Little Caesars '' Although their corporate office told me that their ingredients are top secret, the first gal I talked with admitted that there is yeast extract in their beef topping. I also called a local store and found that their super-secret ingredients were listed right there on the package for anyone in the kitchen to read. According to my local restaurant, their sauce contains natural flavors and the cheese contains wood pulp (cellulose). They also rattled off the beef topping ingredients to confirm it contains yeast extract, beef flavorings and caramel coloring.
Mellow Mushroom '' One of the most tight-lipped restaurants I talked to would only admit to the use of soybean oil, which is likely GMO '' ''Soybean oil is a major ingredient in our pizzas'' they wrote to me in an email. Furthermore, when I asked about hidden MSG ingredients, they told me that they weren't required to tell me since they are not one of the 7 major allergens designated by the FDA and don't list them on their allergen list. So I decided to go use their allergen tool to see what they do list and found something shocking. The tool gives misleading, inaccurate and potentially dangerous information if you have a soy allergy. For example, I confirmed their crust uses soy, but when you use the tool, it says there are plenty of pizzas without soy. The information doesn't add up and regardless of whether if you have an allergy, I would not trust Mellow Mushroom until they release the full ingredient lists for their menu.
Uno Pizzeria '' They are not much better than the rest with hidden MSG in their BBQ Chicken pizza, Harvest Vegetable pizza, sausage topping and gluten-free crust. I was a bit surprised to see that they also add caramel color, artificial flavors, and a large amount of natural flavors to their BBQ Chicken pizza '' it's totally unnecessary.
California Pizza Kitchen (CPK) '' As they were being very difficult in sharing ingredients, I was only able to confirm that the Thai sauce, tomato pizza sauce, pepperoni, salami, bacon, romano cheese, and chipotle sauce do not contain any of the hidden MSG ingredients that I listed. Because they refuse to share an ingredient list, I have no way of knowing whether they contain other additives or hidden MSG that I didn't ask about '' so don't be convinced that these menu items are clean! I also inquired about hidden MSG ingredients in their other cheeses, BBQ sauce, chicken, sausage and ham toppings '' and they have not responded at all regarding those items. Again, I will take their lack of a response as an indication that they do contain hidden MSG until they inform us otherwise.
Papa Murphy's '' It's all about the sauces at Papa Murphy's, where there's yeast extract in their basil pesto sauce and modified food starch in their BBQ sauce, buffalo sauce, creamy garlic sauce and sweet chili sauce. They also add ''flavors'' to nearly every meat topping available and to their cheese.
Cici's '' They don't really hide it by adding straight MSG to 10 menu items including their ''Zesty'' pizza sauce. Cici's further adds hidden MSG to their buffalo sauce, ranch dressing, bacon cheddar sauce, sausage topping and beef topping. Quite frankly, I can't believe how bad their ''cheese'' is '' modified food starch, partially hydrogenated soybean oil, (added) casein, aluminum, natural flavors and artificial color! I was also astounded to find high fructose corn syrup in their BBQ sauce and dessert pizzas, as well as carrageenan and propylene glycol in several of their sauces, including the Alfredo.
Are you wondering about your favorite pizza place?
The good news is that you can do the exact same thing I did at your favorite pizza place, and please share the outcome with me!
To get the best results, plan to visit your pizza place during a slow time and not during their dinner rush. This way their employees won't be rushed and will have time to answer your questions. Right off the bat, ask them if they have an ingredient list to share with you. Most likely they won't, but it's worth a try. If their ingredients are not readily available, here's my game plan for navigating the menu and asking the right questions:
Typically the safest bet is to stick with a veggie pizza without cheese. This is dependent on what they have lurking in their sauce and crust, so it's really important to find out what is in those items! Ask them to read you the complete ingredients in the sauce and dough.Hidden MSG is most often found in meat toppings, seasoning mixes and creamy sauces '' so if you plan to order those things I would ask specifically about hidden MSG ingredients. Ask them if monosodium glutamate, autolyzed yeast, hydrolyzed proteins, modified starches, or natural flavors are in any of those menu items. Which ones?GMO soybean oil is usually found in the crust and the sauces. Ask them if they use soybean oil '' and in what menu items. Is soybean oil used in their pans? Can they make you a pizza without it?Ask them directly if any of their ingredients are GMO. You may be surprised as they may have no clue what you are talking about. Use this as an opportunity to briefly share with them what a GMO is and why you don't eat GMOs. Let them know that most soy is GMO so if they use soy in any products, it is probably GMO. Their allergen statement should also be able to tell you if soy is used in any product.Remember that ''garlic oils'' and ''shake-on seasonings'' may contain a bunch of questionable ingredients and MSG. Ask them if there are any specialty oils, butter sauces, or seasoning mixes used on their pizzas. If they can't tell you the ingredients in those, ask them not to use it on yours.Do they use high fructose corn syrup or other sweeteners in their sauces or dough? These sweeteners are probably derived from GMO sources '' including ''sugar''.Most vegetables will not be GMO, unless they have corn, tofu, zucchini or yellow squash toppings. I would avoid those.What about cellulose in their cheese? Are flavorings and preservatives added to the cheese as well?Beware that often times the restaurant employees truly do not know the answers to your questions, and will give you incorrect answers. For instance, they may tell you that their cheese is ''100% real cheese'', without realizing that the pre-shredded bag of cheese in the back contains an ingredient list. On that ingredient list, they will likely find cellulose, some preservatives, and possibly some flavors and colors. It's good to remember that it's not all that it seems on the surface, and in order to find out what is really in their food they will need to read the ingredient list on the box, bag or can that the menu item comes in. The bottom line '' If they won't tell you what is in their food, don't eat there.
They don't expect the average customer to demand answers about their food!
Only four of the restaurants I investigated publish their current ingredient lists online '' Dominos, Uno's, Papa Murphy's, Cici's. (Pizza Hut publishes them online, but they admitted to me they aren't current in an email). As in my Chipotle investigation, I had to be extremely persistent over several months to get the limited information that I did from the other restaurants. This took multiple phone calls, voicemails, emails, and website contact forms '' which often went unanswered. I had to ask specific questions about obscure ingredients. They are counting on the average customer to not do this!
On Papa John's website, they say that their cheese is ''crafted from 100% mozzarella and high-quality milk by one of America's finest cheese producers'' '' But the ingredients tell the real story. Now we know their cheese also contains wood pulp and modified food starch'... and that IT'S NOT 100% CHEESE. When Papa John's claims in all of their advertising that they have ''Better Ingredients'', yet they won't openly tell us what they are, it's a safe bet they're hiding something.
I wonder if any of these restaurants will have the courage to discuss this issue. Will they do the right thing now that we are calling them out, like Chipotle did when they finally released their full ingredient list online for everyone to see? These companies do not deserve our business, until they publish their ingredients online and make them easily accessible to the average customer.
What to eat instead:
Okay, this is the good part! I'm thrilled to say that I've found some pizza places that are doing it right!
Pizza Fusion '' I called up a Pizza Fusion restaurant and they freely answered every question I had about their ingredients '' a big WIN in my book! Their sauce is super simple: organic tomatoes, olive oil, water '' and no nasty additives or hidden MSG. They only use olive oil in the restaurant, so you won't find any GMO soybean or canola oil here. They confirmed with me that their gluten-free crust no longer contains canola oil and that they are diligent about preventing cross-contamination with gluten. I was really happy to find out that all of their meat toppings are antibiotic-free! Their chickens are also fed a non-GMO diet. Many of their veggie toppings are organic and local, and all are non-GMO. This varies and depends on what is seasonally available, so simply ask them which veggies are organic when you order. They have about 12 locations right now, and I really hope they grow into a larger chain so that more of us have access to pizza places like this!
Pure Pizza '' I simply love this place. If you are ever in Charlotte, this is the place to go. They have an amazing organic sprouted grain crust, and source their toppings locally.
Truly Organic Pizza '' This pizza chain in Florida is USDA certified organic. Because of this, none of their ingredients can be GMO, and all of their meats are antibiotic-free and not injected with hormones. I called them up and asked specifically about hidden MSG ingredients. They told me that they do not use any flavor enhancers such as autolyzed yeast extract or hydrolyzed proteins to season their food. They cook their meatballs and chicken from scratch and only season them with basic seasonings like what we would use at home! This is another great option if you are in Florida.
My Favorite Homemade Pizza Recipe '' If you don't have pizza restaurants like these in your neck of the woods, my homemade pizza recipe is super simple and will be ready in less time than it would take you to order and have it delivered '' I promise! This recipe cures my pizza craving in no time!
If you know someone who is ordering or eating pizza with these terrible ingredients, help them make the switch by sharing this very important information with them!
Together we are changing the world, one company at a time, by sharing the truth.
Xo,
Vani
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Major Muslim leader makes this message to all Americans: ''In two years America will be land of Muslims and all Christians will be our slaves'' (VIDEO) - tapainfo.com
Sat, 24 Nov 2018 14:00
In two years America will be land of Muslims and all Christians will be our slaves''The Prophet said: 'There is no god but Allah,' said Thbait. ''Instead the [elites of Mecca] rejected. They offered the Prophet wealth, status, and political representation '' a seat on the executive branch within Mecca's secular order '' all to avoid this statement and its implications. Yet he rejected their offers and continued his journey towards radical change, providing us with step-by-step instructions on how to make this religion supreme.''''The elites of Mecca would use every possible measure to coerce or contain Muhammad's call for change within specific parameters,'' he added. ''Those parameters would permit the changing of anything that did not threaten their system and infringe on their power. But this message is not here to integrate. It is here to dominate. Islam is here to dominate! This was an ideological struggle, the sole purpose of which was to organize Man's affairs in accordance with a system revealed by Allah.''
''There was no room for compromise,'' Thbait continued. ''Instead Allah revealed to the Prophet, saying: 'Proclaim openly, as commanded, and turn away from those who associate others with Allah.' 'Proclaim openly, as commanded by Allah' '' this is our activism. It is free of polytheism, the polytheism of a secular system. Activism within a flawed infidel system is forbidden.''
There is definitely a problem with polytheism in our land, but Islam will not help that since it is a flawed ideology that thrives on death, not life, and because it is an anti-christ religion at its heart.
He then said:
You cannot raise your hands to Allah, while extending your hands to men for legislation. Every four years, you do just that. Muslims are pressured to get out there and vote, believing somehow that their insignificant numbers have an impact. The effort to get Muslims out there to vote has never been about their significance. It is part of an effort to assimilate Muslims.
They have tricked Muslims into voting for Clinton, who went on to starve half a million children in Iraq to death. They tricked Muslims into voting for Bush, who went on to bomb two Muslim countries and kill millions. And they went on to trick Muslims to vote for Obama, who bombed seven Muslim countries and killed millions.
The argument used was always the ''lesser of evils.'' So now, killing millions of Muslims is a ''lesser evil.'' ''What is the matter with you? How do you judge?'' [Quran 68:36] The ballots have brought you nothing but disgrace, and have soaked you with the blood of your Muslim brothers and sisters. The problem with their system is not the scores of dead. It is deeper than that. It is their secular faith. It is in direct opposition with our creed, when Allah says: ''Legislation belongs to none other than Allah.''
Muhammad and his companions established for us a political system where sovereignty belongs to Allah and not to the elites, where politics meant caring for the affairs of Mankind, not only the elites, where da'wa was conveyed to the whole of society, not only to the oppressed and excluding the elites. This system was not for the 99% or the 1%. This system was for the 100%. For those of us in the West, Allah granted us the opportunity to be amidst a people so misinformed that the truth we offer will resonate. Our voice is our greatest weapon, and our silence is our worst enemy.
'... They want to entice you and intimidate you into embracing their way of life. They want to change our Islam We are not their puppets. We are a cure and a mercy. We carry a comprehensive system of solutions for Mankind, and we should act accordingly. Muslims in the West are a part of this struggle. We should not underestimate our impact in this global effort. We need to be honest about who we are, what our global program is, and advocate for the system of Islam, wherever we may be, and explain it to Muslims and nonMuslims alike. Don't fall into the electoral trap.
Some of what he says is true. This idea of being used is very true, not only of Muslims, but of many in our society. However, Islam does not offer truth. It offers lies. As for killing Muslims, perhaps one should follow the blood trail left by Islam, not just in this century, but in the previous nine!
Ex-member of FET–-linked foundation brought to Turkey from US - Turkey News
Sat, 24 Nov 2018 13:42
ISTANBUL - Anadolu AgencyA former executive of Fetullah Terrorist Organization (FET–)-linked foundation in the U.S. has been brought to Turkey on Nov. 16, according to security sources. Mehmet Salih G¶zegir was deported from the U.S. on Nov. 15 after he was found guilty of sexual abuse of children, said a security source, who asked not to be named due to restrictions on speaking to the media.
G¶zegir arrived at Atat¼rk International Airport in Istanbul from Houston under security escort, the source said, adding he was later referred to police headquarters in the city.
US studying Turkey's demands to extradite G¼len
He was one of the board members of the Raindrop Foundation -- one of the umbrella organizations of FET– in the U.S. -- in 2014. He was detained following a police raid in 2015.
G¶zegir, who was in the U.S. for his medical education, was released on $50,000 bail pending trial.
He was expelled from board membership in the foundation and his deportation was decided in June 2018.
The Raindrop Foundation has been operating as the umbrella institution uniting many schools and foundations belonging to FET–.
Coup convict busted amid sexual act with lawyer cousin in prison: Report
FET–, extradition, United States
Trump's communications director will get $7 million from Fox News while working in the White House '' ThinkProgress
Sat, 24 Nov 2018 13:31
Bill Shine received $15.4 million in severance and bonuses from Fox News after mishandling numerous allegations of sexual misconduct.Bill Shine at the White House on September 18, 2018. (Alex Wong/Getty Images)President Donald Trump's administration attempted to use Black Friday as cover for its latest cringeworthy staffing revelation.
White House communications director Bill Shine's financial disclosure form was finally released on Friday, nearly five months after he filled the vacancy left by Hope Hicks' departure.
Shine, who Trump hired in July following his firing from Fox News last year for mishandling numerous sexual misconduct complaints, received a $15.4 million severance package from the conservative network, per CNBC.
Around $7 million of that is owed to Shine this year and in 2019 via a ''future bonus'' and ''options.''
That means the White House communications director will be paid simultaneously by Fox News and the White House.
Shine was a key part of the conservative network's pervasive culture.
The former Fox co-president was named in multiple lawsuits as an alleged enabler of Roger Ailes, the ex-chairman and CEO of Fox News who resigned in 2016 after multiple accusations of sexual misconduct. Shine reportedly told subordinates not to speak up about Ailes' alleged rampant abuse.
Ailes, a former aide to President Richard Nixon, advised Trump's campaign after his dismissal from the conservative network. The Fox News founder died last year.
Shine was also involved in settlements with women who accused former Fox News host Bill O'Reilly of sexual harassment. O'Reilly was ousted from the conservative network last year after the hush payments surfaced and advertisers bailed on his show.
Since Shine's hiring, which was praised by O'Reilly and Fox News' Sean Hannity, he has been involved in banning reporters from the White House and instituting new ''rules'' for the media that only allow one question to be asked.
Shine's wife, Darla, who was a producer at Fox News, reportedly has complained that she can't use the N-word, spread baseless conspiracy theories about vaccines, and claimed that women in the military should expect to be sexually harassed.
The feedback loop between Trump and Fox News has been well''established.
National Security Adviser John Bolton, White House Strategic Communications Director Mercedes Schlapp, State Department spokesperson Heather Nauert, U.S. Ambassador to Germany Richard Grenell, Shine, and several other members of Trump's administration are former Fox News employees.

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    oh you've got to get one atom curry