Justice David Souter was one of the folks who voted in favor of allowing the seizure of private property for nebulous reasons in last Thursday's Kelo v. New London decision.

Now, a satirical group called Freestar Media is seriously contacting a New Hampshire land developer and suggesting that a hotel be built on Souter's property there. They have contacted the city of Weare, New Hampshire in an attempt to get them to seize the property by virtue of their newly-granted eminent domain rights so that the property can be turned over to a private developer.

I understand these people are satirists, but this appears to be genuine. Of course, one of the problems with satire is that it can be mistaken for the truth (cf. "A Modest Proposal"). Nevertheless, I suspect that Freestar Media is just crazy enough to actually suggest building a hotel on Souter's property.

Posted by Mark at 6:53 PM | Permalink | Comments (2) | TrackBacks (0)

It's been quite a week for the Supreme Court. Last week, they released a ruling that everyone hated. Today, they're still releasing rulings that people hate. Let's have a look at the recent Supreme Court rulings!

MGM v. Grokster, 04-480

This is the big one that all the intellectual property people were waiting for. We had hoped that the Supreme Court would rule that Grokster, a file-sharing network, is not liable for the infringement committed by its users. Sadly, the Supreme Court (in a unanimous opinion!) ruled in favor of content providers. In its opinion (did I mention it was 9-0?!), the Court created a new standard of contributory infringement, holding that

One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses.

This new standard replaces the one set by Sony v. Universal, 464 U.S. 417 (1984), in which devices that can break the law are legal so long as they have "substantial non-infringing uses." Now, a distinction has been made between devices which have non-infringing uses and devices which were designed specifically to break the law.

File-sharing networks, while they engage in breaking the law by providing access to copyrighted materials, do engage in "substantial non-infringing uses." Many Linux distributions are distributed over file-sharing networks, as well as the work of independent musicians. The justices didn't seem to care for these uses, however, and chose to mandate that "evidence of intent to promote infringement" be a factor in determining contributory infringement.

Does this mean that every inventor must go out of his way to make sure that his invention can't break the law? Not really. Note the words "clear expression" and "affirmative steps" in the block citation above. Negligence is not an "affirmative" step toward copyright violation. Thus, if a use for an invention is discovered that breaks the law, and that use was not part of the original intent for the invention, then the inventor is not liable, since there is no "evidence of intent" to break the law. Nevertheless, this is a blow to file-sharing networks and any device which can easily move information around. While it's not as bad as it sounds, it gives added moral support to content providers' quest to destroy file sharing.

McCreary County v. ACLU of Kentucky, 03-1693

McCreary County, Kentucky decided to display the Ten Commandments in its courthouses. The county's argument was that the display was totally secular -- honest! -- and that the Ten Commandments are part of the history of the law. The Court didn't buy this argument, citing the case Lemon v. Kurtzman, 403 U.S. 602 (1971), which establishes a test to determine whether or not the government breaks the Establishment Clause with its actions. The Lemon test evaluates the "secular legislative purpose" of a religious action. McCreary County argued that the Lemon test should be thrown to the wayside in this case, since "true 'purpose' is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent." The majority didn't buy this for a second, calling McCreary County's arguments "as seismic as they are unconvincing." The Court found that McCreary County acted without a "secular legislative purpose."

The decision was 6-3, with Rehnquist, Scalia, and Thomas dissenting. Of course, Scalia brought in his usual garbage about cultural heritage and Western tradition, which are perfectly permissible as law, even though contemporary international cultural norms and court opinions are not. These three are the most conservative justices, so their being on the opposing side makes sense. What's important is that the swing people -- O'Connor and Kennedy -- were on the majority side. That means that this was a good ruling.

Van Orden v. Perry, 03-1500

The Court actually dealt with two Ten Commandments cases. The second, Van Orden v. Perry, was similar. The Texas State Capitol contained 21 historical markers and 17 monuments, among them "a 6-foot high monolith inscribed with the Ten Commandments." A District Court and the Fifth Circuit Court held that the display did not violate the Establishment Clause. The Supreme Court agreed in a very divisive 5-4 ruling. Rehnquist delivered the opinion of the court, but Thomas and Scalia filed concurring opinions, meaning they agreed with the outcome but had different methods of getting to that outcome. Breyer also filed a concurring opinion. Stevens filed a dissenting opinion, meaning he disagreed with the judgment, and O'Connor filed a separate dissenting opinion which Stevens and Ginsburg signed on to. Holy cow! Ultimately, the Court concluded that this display was permissible because the Ten Commandments were included in the context of "a broader moral and historical message reflective of cultural heritage." Another good, if schizophrenic, ruling.

Kelo v. New London, 04-108

This opinion makes me cry. Petitioner Kelo is a woman who owns a house in New London, Conn. New London wanted to use its right of eminent domain to take Kelo's house and hand it over to a private developer. The city justified this by saying that the increased tax revenue and new jobs generated by the private developer's improvement of the land is a "public use" as specified in the Fifth Amendment, which forbids the seizure of private land by the government unless the land is set aside for "public use." Until now, such a use has been pretty overt: a park, a highway, something everyone can use. But now, the Supreme Court has endorsed the time-honored practice of municipalities taking public land and handing it over to private developers. Municipalities -- cities and towns -- are some of the most corrupt governmental institutions. There are hundreds of examples all over the country of towns and cities taking private land with the promise of "public use" and handing the land over to a private developer so that developer can build a store or a parking lot. This practice has been questioned, but now it has been rendered valid by the Supreme Court, which was clearly high at the time they wrote the majority opinion.

John Paul Stevens, who is about a thousand years old and is out of touch with reality as we know it, wrote the majority opinion, which displeased conservatives and liberals alike. Seriously: no one likes this opinion!

Sandra Day O'Connor, writing the dissenting opinion, was extremely eloquent. She and the others who dissented -- Scalia, Rehnquist, and Thomas -- were very concerned that the majority had redefined "public use" to mean practically anything:

In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

The nebulous promise of increased tax revenue or more jobs, says O'Connor, is not specific enough to be defined as "public use." Clarence Thomas wrote his own dissenting opinion which, considering that it's Clarence Thomas, was very cogent and well-written. Thomas gives us a lesson in the etymology of the word "use," concluding that "use" requires that something be done with the land by the people. They have to be able to use it. People cannot use tax revenue or jobs. But the best part of Thomas's opinion is that he discusses how the writers of the Constitution used another phrase -- "general Welfare" -- to describe things which intangibly benefit the people:

Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. (“Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope.

Good job, Clarence Thomas! He ends his dissent by calling the majority opinion what it is: "far-reaching and dangerous." For, as O'Connor says, if "public use" can mean any tiny, tiny benefit that may, someday, somewhere, in the nebulous future, be a benefit, then municipalities can turn land over to private corporations and pocket the profits, and municipalities are always concerned with increasing tax revenue.

Posted by Mark at 7:11 PM | Permalink | Comments (0) | TrackBacks (0)

Remember last summer, when I introduced Bizarro Oprah's Book Club, it was to let the world know about good books that Oprah wouldn't touch with a ten-meter cattle prod. This summer, we're going to do the same thing! Woo!

The current book at Bizarro Oprah's Book Club is Atlas Shrugged by Ayn Rand. If you'd like to discuss it here, then go right ahead. I have read Atlas Shrugged and Elizabeth is in the process of reading it.

So, please: discuss!

For more information on objectivism, please visit Ayn Rand's official website.

Posted by Mark at 10:41 PM | Permalink | Comments (2) | TrackBacks (0)

The Onion AV Club has an interesting interview with Billy West, the voice actor behind Fry on the ill-fated Futurama and Stimpy on Ren and Stimpy.

One of the questions he answers is why Futurama, a great show, was canceled. Not only was it on at 7 PM -- the time-slot of death -- but it wasn't promoted by Fox, since "Fox kept trying to hide it because they couldn't have control over it. How are you going to explain to the media world, 'It's a success, obviously, because we had nothing to do with it. We didn't put our seal of death on it.'"

More important, however, is West's take on regular actors getting into the voice business. In his opinion, "celebrities" get jobs in Disney features not because they're good voice actors, but because they can be marketed along with the film:

They're already looking to see what Billy Crystal is doing. This doesn't make sense, to do what they do—spend zillions on visuals, and then have this totally fucking flat-lining voice track. You know, "Hey, I'm Will Smith, I'm a clam! I'm Will Smith, I'm a kangaroo!" All you bring to the performance is your own ego. They're just being themselves. Let's put it this way: Cameron Diaz is the highest paid voice actress in history: $20 million for Shrek. Why? Because she has a 9-foot mouth? That works somewhere else, but not on tape! [Laughs.] It's like what the hell is that all about?

Voice actors got to be where they are because they're good voice actors; likewise, Cameron Diaz is famous because she's a good (?) regular actor. No one knows who Maurice LaMarche or Frank Welker are, but everyone knows Will Smith, and film companies try to draw unwitting moviegoers to crappy films (cf. Shark Tale) with the promise of their favorite big-budget stars.

Posted by Mark at 3:35 AM | Permalink | Comments (2) | TrackBacks (0)

Dave Chappelle was on the NPR show Fresh Air today. It is available from NPR in evil streaming RealAudio or evil streaming Windows Media formats. The interview, though, is not recent; it's from last year and was re-aired today to take advantage of the hype surrounding Chappelle's sudden flight to South Africa.

Among one of the things that interested me was that Chappelle talked about how he was the first member of his family since the end of slavery to not attend college. His father was a music professor and his mother was a Unitarian minister. After graduating from high school, he set off for New York at 17 to try and make it in stand-up comedy, to the disappointment of his mother and grandmother. Usually, you read about success stories where a particular person was the first person in the family to graduate from college; here, he's the first person to not graduate from college.

Posted by Mark at 12:06 AM | Permalink | Comments (0) | TrackBacks (0)

Boing Boing linked a few days ago to a website showing screenshots from a terrible bootleg copy of Star Wars Episode III. There was a line of blur toward the top of the screen, extending all the way across the picture, which was a studio timecode that had been blurred out.

Here's a DVD case for a bootleg copy of the film, which includes the credits from the film Armageddon on the back, as well as some hijacked art from starwars.com (you can download the art on the back of the pirated DVD, "Rise Lord Vader," as a desktop wallpaper, although whoever made this DVD box had other intentions for it).

So why would anyone pay for this crap? MPAA operates under the assumption that we're all rational consumers. A "rational consumer" is a consumer who takes only price into account when making a decision about buying something. In a perfectly competitive market, this makes sense. The definition of a "perfectly competitive market" is one where there are thousands of sellers all selling exactly the same thing for, it turns out, exactly the same price (a single firm in a perfectly competitive market could lower its price, but it wouldn't be able to make enough money to have an economic profit, since there are literally thousands of other firms selling the same thing at a higher price and making more money off the deal. Like most things in economics, a "perfectly competitive market" is something invented by the folks at the College Board and the textbook companies. The graphs look nice, but they bear little resemblance to reality.

In reality, consumers do make distinctions based on factors besides price because items for sale do differ in quality. If I were a rational consumer, I would pay $5 for the bootleg DVD instead of $24.95 for the real DVD. But as a consumer concerned with quality, I want the assurance that I'm watching a real copy of the film, as well as a copy without quality problems (like a timecode in the middle of the screen). Why people would buy these pirated DVDs I'll never know, probably because they don't know that they're of terrible quality.

I'll download a 700 MB AVI of a movie I want to watch, but if I want to watch the movie again and again, I'll just buy it. The same goes for MP3s: if all I can find is low-quality versions of songs I want, I'll just buy the album (especially if I can't find the whole album. Do you know how hard it is to find all of the tracks for Music for a Darkened Theatre, Vol. 2 on the file-sharing networks? No one has it!).

We consumers make quality distinctions and we won't buy crap unless we're duped into thinking it's not crap. That's why people buy junky cars all the time: it's not because they want a junky car; it's because they've been led to believe it's not a junky car.

Posted by Mark at 1:48 PM | Permalink | Comments (5) | TrackBacks (0)

Back in 2002, Lexmark, the maker of cheap, dopey printers, sued a company called Static Control Components. Lexmark's laser printer toner cartridges contained a chip that measures (approximately) the amount of toner left in a cartridge. Companies that buy toner cartridges from Lexmark can get them at a discount using Lexmark's "Prebate" program, whereby a business agrees to send a used cartridge back to Lexmark for re-filling. The program specifies that these businesses may only buy their cartridges from Lexmark, and software on the chip and in the printer itself ensures that customers don't violate this agreement.

In steps Static Control Components (SCC), which manufactures a chip that breaks the encryption on Lexmark's toner chip, allowing consumers to use third-party toner cartridges instead of Lexmark's. Lexmark sued under the Digital Millennium Copyright Act (DMCA), alleging that SCC's technology is being used to "circumvent a technological measure that effectively controls access to a work" that is copyrighted. In this case, Lexmark's control programs are copyrighted.

Lexmark provided three theories of liability:

First, Lexmark alleged that SCC violated the copyright statute, 17 U.S.C. § 106, by reproducing the Toner Loading Program on its SMARTEK chip. Second, it alleged that SCC violated the DMCA by selling a product that circumvents access controls on the Toner Loading Program. Third, it alleged that SCC violated the DMCA by selling a product that circumvents access controls on the Printer Engine Program.

The Sixth Circuit Court of Appeals, in Lexmark v. Static Control Components (03-5400), didn't buy this argument. The case was appealed to the Supreme Court, but the Court rejected it.

Which brings me to my point: why is software copyrightable? The United States Code makes an explicit distinction between copyrights and patents:

17 U.S.C. 102:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Take a look at that last paragraph. Copyrights are not supposed to be extended to inventions or devices which engage in some sort of utilitarian function. What is a computer program? Is it a literary work? No. Is it a musical work, a dramatic work, a pantomime, a sculpture, a motion picture, a sound recording, or an architectural work? I believe we can all agree that it is none of those. But, of course, these are just examples of things that are copyrightable; the list is not all-inclusive.

Is a computer program an "idea"? Well, certainly, but so is a sculpture. Is a computer program a "procedure"? Yes, at its most basic, a computer program is nothing more than a set of instructions. Here is a computer program:

10 PRINT "I AM GOING CRAZY"
20 GOTO 10
30 RUN

This is a set of instructions written in BASIC. In BASIC, the computer goes through lines of code sequentially until it's told to stop. The above program tells the computer to display the words I AM GOING CRAZY. The computer then moves on to the next instruction, which tells it to go back to line 10. It again displays I AM GOING CRAZY, then moves on to the next instruction, which tells it to go back to line 10. (Line 30, RUN, tells the computer to execute the program.) You get the idea. This will cause the computer to continue displaying the words "I am going crazy" until someone turns it off. The computer is helpless to do anything other than that which it is told. It is executing a series of instructions, and this is a "procedure." It is also a "process," "system," and "method of operation."

Why, then, is software protected by copyrights? Let's take a more sophisticated piece of software, like WarCraft III. It has some literary and artistic elements, and those can be copyrighted: the names, characters, music, and storyline can all be copyrighted. The code which powers the game, however, must be patented!

Why copyright protection, then? Because software manufacturers lobbied for it. And because copyright protection is stronger than patent protection. If you copyright something today, you hold an exclusive right to reproduce that work for the length of your life and 70 years afterward. If you copyright something anonymously, under a pseudonym, or for hire, then you hold a copyright for 120 years after its creation [15 U.S.C. 302]! Companies like Walt Disney have lobbied extensively to keep copyrighted materials out of the public domain (cf. the Sonny Bono Copyright Term Extension Act, which extended copyright protections by 20 more years), paying Congressmen lots of money to extend copyrights just as they are about to expire. A patent, on the other hand, is enforcable for only 20 years after the date the patent was issued [35 U.S.C. 154(a)(2)].

Or maybe I'm wrong and software should be copyrighted. Any ideas?

Posted by Mark at 3:56 PM | Permalink | Comments (0) | TrackBacks (0)

If only I had my Supreme Court fetish back when the CBS show First Monday was on. That was about four years ago, and it was a West Wing-style series about the Supreme Court (with fictional justices who were somewhat based on the real justices).

Anyway, today is a day of sadness for hippies. The Court ruled 6-3 today that federal law prohibits growth of marijuana by private citizens, even in the case of medical marijuana. In Gonzales v. Raich, 03-1454 (formerly Ashcroft v. Raich, the Court held that "Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." The infamous Commerce Clause, found in Article I, section 8 of the U.S. Constitution gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Even though California state law, called the Compassionate Use Act, permitted "limited marijuana use for medicinal purposes," the DEA seized and destroyed all of respondent Monson's marijuana plants under the authority of the Commerce Clause. The Ninth Circuit Court of Appeals ruled that a preliminary injunction against the government would be allowed, since there was a strong likelihood of proving that the federal Controlled Substances Act "is an unconstitutional exercise of Congress’ Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law."

Somehow, the U.S. Supreme Court has reasoned that Congress' power to regulate interstate commerce does apply to "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes."

Whaa?

The Court's reasoning had to do with the compelling government interest in regulating "legitimate sources of drugs to prevent diversion into illegal channels, and strengthening law enforcement tools against international and interstate drug trafficking." The Court also maintained that "Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly stablished":

If Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127–128, where, in rejecting the appellee farmer’s contention that Congress' admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee's own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

So, if I'm producing killer robots for my own use, Congress may regulate my personal, non-commercial production of killer robots if "failure to regulate [the production of killer robots] would undercut the regulation of the interstate market in [killer robots]." I actually like this argument, since it isn't a "drugs are bad" argument, but rather a positive argument based on non-moral reasoning about Congress' ability to regulate interstate activities.

Justice Scalia concurred in the outcome of the judgment, but filed an opinion in which he says that he came to the same conclusion not because of Congress' Commerce Clause authority, but its "Necessary and Proper" clause authority, which is also to be found in Article I, section 8 of the U.S. Constitution, where Congress is given the power "[t]o 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." Scalia gives us a little lesson about the history of the Commerce Clause, and how the third element of Congress' commercial regulation authority comes not from the Commerce Clause, but its need to enact laws that are "necessary and proper" for allowing it to regulate interstate commerce, including "activities that substantially affect interstate commerce," like the local production of wheat, marijuana, or killer robots. If my private activities can be shown to substantially affect commerce elsewhere in the country, then my activities can be regulated.

Even if marijuana were legal to grow, buy, and smoke, it would still be controllable, and the argument would be the same. Good job, Supreme Court, for not being self-righteous in attempting to keep our kids safe from drugs! (And I'm serious about that.)

This opinion changes very little in the way of federal drug controls. Those have always taken precedence over state drug laws, and if a state permits marijuana use and a federal law prohibits it, the federal law wins. The jury is still out on federal killer robots legislation.

Posted by Mark at 7:26 PM | Permalink | Comments (2) | TrackBacks (0)

George Mikan died today at the age of 80. You may not know who George Mikan is, but if you watch basketball, then you're familiar with the thing he personally invented as NBA Commissioner in 1967: the three-point line. But there's something else he was indirectly responsible for: the shot clock. The following comes from David Feldman, Imponderables: The Solution to the Mysteries of Everyday Life (New York: Quill, 1987), 29-31:

During the 1953-1954 season, the National Basketball League was beset by difficulties. Attendance was low; many franchises were in financial trouble.

Professional basketball's problem was not a trivial one: Fans found the game boring. Hoop fans like to see plenty of shooting and scoring, but the rules did absolutely nothing to encourage teams with a lead to shoot the ball. If a team led in the late stages of the game, the custom was to have its best ball handler dribble in the backcourt, forcing opponents to foul intentionally, resulting in tedious but profitable free throws for the stalling team. There was also no incentive for teams in the lead to run cross court and set up their offense quickly, further dragging the pace of the game.

The owners knew they had a problem, but the solution was the branchild of an unlikely savior named Danny Biasone. Biasone, a bowling alley proprietor, bought the Syracuse Nationals franchise for the princely sum of $1000. Biasone might not have held the clout within the league to comete with the Knicks or Celtics owners, but he concluded that a clock was necessary to force players to shoot at regular intervals and speed up the game.

How did Biasone arrive at 24 seconds? He figured that the average game contains about 120 shots between the two teams. Since there are 48 minutes, or 2880 seconds, in an NBA game, teams averaged exactly one shot every 24 seconds. Figuring that players would be be forced to shoot before the 24 seconds expired, a shot clock would compel teams to shoot more often and, presumably, score more often.

Biasone invited club owners to watch a demonstration of how a game would be played with a clock. All could see that the shot clock would add excitement to the game, and it was instituted in regular play at the beginning of the 1954-1955 season.

The shot clock changed basketball immediately. Scoring did increase, an average of 14 points per game in one season. Most importantly, attendance rose quickly. NBA historian Charles Paikert quoted former league president Maurice Podoloff as saying that the adoption of the clock "was the most important event in the NBA and Danny Biasone was the most important man in the NBA."

Biasone's shot clock had another effect that perhaps he did not forsee -- it changed the type of player needed to build a championship team. The Minneapolis Lakers dominated the NBA before the shot clock, led by the physically bruising but slow and lumbering George Mikan. The Lakers, with the shot clock, could no longer afford to loiter downcourt while Mikan hauled down a rebound and casually jogged down the halfcourt line. Mikan retired the year the shot clock was instituted. He returned for the 1955-1956 season, but averaged only 10 points [per game] versus a career average of 22 points, and he quit after half a season.

The shot clock was tailor-made for the team Red Auerbach was fashioning in Boston. In Bill Russell, the Celtics found a tall center who was exceptionally quick and could spark a fast break offense.

Players like Mikan could not survive in the new NBA; the AP reports that he "retir[ed] because of injuries in 1956," but Feldman provides convincing evidence that the gigantic (6'10", 250-pound) Mikan was the perfect player for the old kind of basketball, and that his retirement coincided with the introduction of the shot clock is probably no coincidence. Nonetheless, as contemporary basketball players like Shaquille O'Neal point out, he was the original basketball superstar. And, in some degree thanks to him, we now have a shot clock that makes basketball the faced-past, 100-point-scoring game that it is today.

Just in case you're curious, in the 1984-1985 season -- thirty years later -- the average number of shots increased from 120 shots in 1955 to 178 shots.

Posted by Mark at 1:33 AM | Permalink | Comments (1) | TrackBacks (0)

From The News-Herald, of course, comes the most ignorant thing I've ever read in my life. It's a letter to the editor published yesterday:

Evolution and Creationism have existed for years and years. To this date, I have seen no factual evidence that evolution is in fact a fact. After all, it is the Theory of Evolution by Charles Darwin -- not the Fact of Evolution.

There is still the Missing Link. There is no one person more widely known throughout the world than Jesus Christ. More people know of Him than anyone else in history.

I totally believe that we were created. The Big Bang Theory (evolution) just doesn't cut it. An accident? Come on. It has been said that theory is no more reliable than a tornado going through a junkyard and putting together a jet airplane. Think about it.

My question to all those that believe in the Theory of Evolution is: Why are you so afraid of Creationism? If you are so sure that evolution is the reason we are all here, what could it hurt to teach Creationism, or are you not so sure?

We have the Bible and many, many other books of history and religion. You have Darwin's Theory of Evolution. Is it unjust to teach both and let each decide for themselves? It has been said that even Darwin turned to God in the end.

Absurd? I think not. I think the teaching of Creationism is just as important (and more so) as evolution. After all, we are talking about eternal salvation.

Eternity is a long, long time. I am a Christian and very confident in my beliefs, an I am willing to give each a chance and let the students decide what they believe. Are you?

Marlene Robinson
Burton

Oh boy. I will put the word "fisk," which I learned from Doug Ross, to good use.

First, may I remind readers that evolution and natural selection are not synonymous. Scientists overwhelmingly agree that evolution is the method by which biology works. Even Pope John Paul II acknowledged the reality of evolution. In a 1996 address to the Pontifical Academy of Sciences, JP2 reminded everyone that "Pius XII had already stated that there was no opposition between evolution and the doctrine of the faith about man and his vocation." He also provided a Catholic definition of a theory:

A theory is a metascientific elaboration, distinct from the results of observation but consistent with them. By means of it a series of independent data and facts can be related and interpreted in a unified explanation. A theory's validity depends on whether or not it can be verified, it is constantly tested against the facts; wherever it can no longer explain the latter, it shows its limitations and unsuitability. It must then be rethought.

He goes on to say that theories of evolution which eliminate God from the equation are not sanctioned by the Church, since "[i]t is by virtue of his spiritual soul that the whole person possesses such a dignity even in his body." He again invokes Pius XII, who "stressed this essential point: if the human body takes its origin from pre-existent living matter the spiritual soul is immediately created by God." Thus, evolution is consistent with Scripture only if we can say that God creates a soul for a human being. Evolution doesn't address whether or not humans have souls, and as long as it doesn't do so, evolution and Scripture can be reconciled.

So let's talk about this letter to the editor. First, "Theory of Evolution" as used in the letter is capitalized. This should not be so. The theory behind evolution is not so grand and so infalliable as to be capitalized. It is merely a theory, like any other theory. In fact, evolution is as much a theory as gravity is, and I find it appropriate to analogize them. We know that evolution exists. Contrary to what Marlene Richardson says, we have observed evolution. Now all that remains is to explain how it works, and this is where competing theories -- natural selection ("the Theory of Evolution by Charles Darwin"), genetic drift, and non-Darwinian mutations -- try to explain how the process works. Likewise with gravity. We know that it works. We can observe it. But we don't understand how it works.

Charles Darwin did not invent the "Theory of Evolution." His theory, natural selection, was an attempt to explain the many different species of finches on the Galapagos islands. Darwin's theory of natural selection suggests that variations between different individuals of the same species exist already, and these variations contribute to an organism's survival. These variations are then passed on to an organism's offspring if the variations allow the organism to live long enough to pass those traits on. Over time, these variations create specialized groups of organisms that become distinct species. The environment determines the survival value of variations.

I take issue with the ethnocentric assumption that "[t]here is no one person more widely known throughout the world than Jesus Christ. More people know of Him than anyone else in history." The statement is ignorant and offensive on its face.

The Big Bang is not evolution. The Big Bang is a theory explaining the origin of the universe, not the origin of life on Earth. They may be analagous in the abstract sense that they both deal with order from chaos, but they are not equatable. Planets do not "evolve." Stars do not "evolve." They congeal from clouds of gas and dust.

As for this "tornado going through a junkyard and putting together a jet airplane," it's a clever metaphor that appeals to public ignorance of how natural selection works. It is not a random process. Mutations are random, but adaptability to the environment is not.

And moving on to the issue of being "afraid of Creationism," I don't think scientists are "afraid" of Creationism as such. They know that their theory stands on its own evidence. What they are afraid of is Creationists attempting to appeal to children and parents with the promise of better arguments and a less offensive explanation for how we got here. Which is better for your self-esteem: you were consciously created with a purpose, or you were a series of random mutations? As they say, sometimes the truth hurts. The existentialists have been dealing with this problem for years: man has no creator and no purpose, and the human condition is a search for purpose. But we'll leave that aside.

Creationism is very good at exploiting ignorance of evolution and common rhetorical tricks. Intelligent design is creationism wearing a different hat. It is not a theory in the sense that any of its assertions are testable, and it does not forward a testable hypothesis of its own. It merely says that evolution is wrong.

"We have the Bible and many, many other books of history and relgion," says Marlene Richardson. Actually, you don't. As a Christian, you have the Bible. As a Catholic, you have lots of Church doctrine along with the Bible. Again, the assumption that Christianity is correct is ethnocentric. The Christian creation myth is different from other creation myths from different parts of the world. Marlene Richardson's assumption is also that creationism is as valid a scientific theory as evolution. But remember what the Pope said: "A theory's validity depends on whether or not it can be verified, it is constantly tested against the facts [...]" Creationism cannot be verified, nor can it be refuted. The only empirical data that support creationism come from the Bible, a single source. Creationism cannot be replicated by someone else under the same conditions. It is not a scientific theory and as such should not be taught in a science classroom. Bring me an actual, scientific theory counter to evolution and I'll teach it all day long. But equating creationism and intelligent design is disingenuous and preys upon a misunderstanding of evolution.

Sorry, Marlene Richardson, but if you make statements like these, you're going to be injured. You should have spent the time you wasted writing that letter on reading a book about how "the Theory of Evolution by Charles Darwin" (available in paperback this summer!) actually works.

Posted by Mark at 3:27 PM | Permalink | Comments (3) | TrackBacks (0)

From The New York Times via Metafilter, reader response theorist Stanley Fish explains why kids no write so good:

Most composition courses that American students take today emphasize content rather than form, on the theory that if you chew over big ideas long enough, the ability to write about them will (mysteriously) follow. The theory is wrong. Content is a lure and a delusion, and it should be banished from the classroom. Form is the way.

While I never took freshman composition, I'm assured that the activities were tedious and stupid. At Miami University, some instructors were graduate students who were forced into teaching freshman composition. Some of the instructors were honest-to-God tenured full professors, since Miami requires that real professors teach a section of freshman composition every now and then. But in high school, we were taught "journaling," the action of just writing and writing and writing. We were never critiqued on the content of these journals, just whether or not we had done them. Fish believes -- and I agree -- that this is a pointless exercise.

Fish's solution of having freshmen create their own language is a bit extreme, but it emphasizes the point that incoming college students don't know how their own language works! "Grammar" as a subject is missing, replaced in elementary school by the nebulous "language arts" (another theorist or professor lamented the popularity of "social studies" in the same way), which encompass literature and composition, but never any grammar. Students learn how to read, but they don't learn how to write.

Trust me. I've read papers written by senior college students, and the kind of crap they turn out is frightening. No one ever taught these students what good sentences sound like, and no one sure as hell ever taught them not to use the passive voice all the time. This is a catastrophe that will not be put up with by me! Students have learned that they shouldn't make their arguments too assertive (where, I'm not sure), so they water down their statements by having things acted upon by nebulous outside forces. While the passive voice has its place -- sometimes, sources aren't clear, so things must "be said," or sometimes, the passive voice breaks up a monotonous string of active statements -- the passive voice sounds wishy-washy and weak.

Students these days also can't construct coherent thoughts. Since seventh grade, students have been using the same cliched idioms to spice up their writing. I have read entire papers that appeared to be nothing more than strings of cliches about "similarities," "differences," and "contrasts." This, however, can be traced to laziness: some students write papers the night before and their quality is horrible. In my dealings with students, they can recognize when things sound bad, so it's not that they don't know when a string of cliches is being used, it's just that they don't want to take the time to write good papers.

Stringing cliches together fooled the teachers in high school, but it doesn't fly in college. Students who enter college are grossly under-prepared and haven't been taught how to write well. They haven't written enough long papers (a brief survey of my friends revealed that most of them hadn't written papers longer than five pages in high school. At the end of my senior year in high school, I had to write a 15-page literary analysis), which means they aren't prepared for college writing, where five pages is a night's homework and final exams can typically be fifteen pages for a single class.

College professors assume that kids know how to write, but it turns out that they don't, which means they have to spend time during freshman year teaching kids the ins and outs of good writing: eliminating cliches, making an arguable thesis, defending the thesis (which includes refuting counterpoints), and writing in the active voice.

I was fortunate enough to be in a school system that really really emphasized writing. I wrote until I was blue in the face, but I was all the better for it at college. And in the real world, by the way, people don't know how to write, either. Businesses are constantly on the lookout for people who can write well. Teams usually have a good writer on them, because the engineer may be brilliant, but he certainly can't communicate that brilliance in a brilliant way. So hire a brilliant writer to make those brilliant ideas sound as brilliant as they really are!

Oh, and don't overuse words.

Posted by Mark at 12:26 AM | Permalink | Comments (0) | TrackBacks (0)