for 21. 4. 2019

Jackrabbit tracks 1 postgutenberg@gmail.com

Easter 2019 (3) postgutenberg@gmail.comWhere the outdoors matters more than indoors, and in the right habitat, today’s master of ceremonies is an elusive animal that last put in an appearance on this site three years ago — with an incontestable claim to being the true Easter leporid (sorry, fluffy bunnies, you know you did your best). Sightings of the typically solitary, nocturnal, hare — or certainly of the branch of the clan known as Lepus californicus or black-tailed jackrabbits — tend to be most common at this time of year. It is peak breeding season. Dazed by romance and romancing, these beasts can forget how essential extreme caution is to their survival.  

But the photographs here were taken two months ago, during an attempt to keep up with one — a doomed, quixotic chase, because although they run awkwardly, as clumsily as kangaroos waltzing, jackrabbits can travel at forty miles or sixty-four kilometres an hour. 

The paw prints stopped at a bush and not a rabbit hole (below) because jackrabbits do not burrow. They make nests and hide in shallow depressions in thickets, under the most dense shrubs they can find.

As disappointing as it was not to meet the paw print-maker in this series for the briefest encounter, the reminder of their skill at evasion was welcome. As one nature writer has put it — rather tactlessly, from a jackrabbit’s point of view — they exist to transform leaves into food for the coyotes and hawks that prey on them.

That’s not a welcome thought for anyone who cares about Osterhase-borne baskets of festive eggs, so let’s delete it immediately.

HAPPY    EASTER

Jackrabbit tracks 2 postgutenberg@gmail.com

Jackrabbit tracks 3 postgutenberg@gmail.com

Jackrabbit and human tracks postgutenberg.com

For comparison: jackrabbit and human tracks

 

In Jeff Bezos’s nasty fight with a tabloid, a hint of how transparency in e-commerce is guiding the design of online courts in the litigation revolution

 

' decorative grille, Frank Lloyd Wright, Marin superior court postgutenberg@gmail.com

Sumptuous court buildings can seem like tributes to the inequality that litigation exacerbates. Photograph: at the entrance to the Marin superior court in California, a decorative grille designed by Frank Lloyd Wright

Dear Jeff Bezos,

For a few days earlier this month, you were an internet hero for scuppering the National Enquirer’s attempt to bully and humiliate you with legalistic tactics.  You challenged its overseers to go ahead and carry out their threat to publish embarrassing private photographs of you if you did not sign a statement attesting to a thought that never crossed your mind — that this tabloid was not playing politics when it ran its exposé in January about your extra-marital affair. You published lawyers’ email messages setting out this demand in your blog post on Medium in which you called it extortion. 

Rather than sign any such document, you said, ‘I prefer to stand up, roll this log over, and see what crawls out.’

Bravo! Sadly, dismal partisan politics and questions about possible links between this fight and the White House and Saudi Arabia dominated public discussion of your ordeal. No one in the commentariat seemed to notice that you’d struck a mighty blow for justice and the common man and woman. You have more than enough money to have not merely caved in to the tabloid’s demands and paid it off in deepest secrecy, but to have quietly bought it and its staff and shut it down, as an alternative. Instead, you trained a blazing spotlight on the thuggish tactics used routinely by lawyers working for rich clients in disputes typically marked by a striking imbalance of power.

What the eminent legal scholar Hazel Genn has observed about the pattern in Britain is equally true of the U.S.. Lawyers and litigation exacerbate inequality. She has said:

Parties are not both volunteers in litigation. One side may be forced into the process against its will. … [I]n the vast majority of […] cases the initiator is a business or institution rather than an individual. With the exception of personal injury proceedings, individuals’ experience of court proceedings is as a defendant rather than a claimant.

For anyone who discovers this truth from experience, the imposing architecture of court buildings — whether classical or modern, hideous or beautiful — makes them look less like temples to justice than casinos blatantly rigged in favour of money and power.

Outside the legal system, only those unfortunates dragged into it understand that the extortionate thrust of the emails you received is as much part of the ordinary lawyer’s toolkit as scalpels are in a surgeon’s. A former federal prosecutor told Wired that the Enquirer ‘could argue that it was merely trying in good faith to resolve a dispute with Bezos — not attempting to blackmail or extort him.’ Why? Because, as that prosecutor continued, ‘”the law regarding the distinction between extortion and settling a legal case is very unsettled — it’s not well defined.”’

Never were truer words spoken — strangely enough, about a battle that has not yet become a legal case. Answering a question on Quora.com about why people are afraid of the legal profession, a 21-year veteran of it started with a jokey pseudo-confession about dabbling in voodoo and the occult. But by his fourth paragraph, he was merely laying out (or boasting about) some of the ugliest facts about actual or potential harm of which he and too many of his colleagues are capable:

Lawyers have to fight for their clients. Most people see the calm exterior and the coldly calculating demeanor and and don’t understand [… that …] what they really see is a trained assassin, someone hired to throw you out of your house, someone who knows how to freeze your bank accounts, garnish your wages,  [and that when a lawyer] puts his or her claws in and starts to rend and tear your psyche from stem to stern, that’s when the full power of a lawyer is on display.

All that has been true for centuries, in jurisdictions all over the world — but the reason why even well-read members of the public know so little about any of it is that most of it happens far out of public view. 

That you have blown a great big hole through this secretive white collar thuggery is not all that surprising. It is strange but undeniable that although you and your fellow tech titans have fairly been accused of deviousness in surreptitiously siphoning private and personal data about us when we use your web sites and products —  as in, most recently, eavesdropping by your Alexa and Google’s Nest that might or might not have been inadvertent — transparency is one of the shining virtues of e-commerce. It is as important as convenience in explaining how online shops have been so successful at leading consumers away from bricks-and-mortar retailing.

The influence of e-commerce is leaping a long way past its boundaries. The online auctioneer eBay, of all things, has been a guiding light for the design of Britain’s online court. For years, thanks to what Ms Genn (or formally, Dame Hazel Genn) has called a ‘reform-minded senior judiciary, supported by a major government investment in technology,’ Richard Susskind — the IT adviser to the Lord Chief Justice for the last 20 years — has held up as a model for redesigning courts for the internet age, ‘the 60 million disagreements between traders solved by eBay’s online argument settling system.’ 

Michael Briggs (formally, Lord Briggs) — a judge who has been crucial to the shaping of Britain’s online court — has said that it will not be as ‘robotic’ as eBay’s processes. But eBay-like transparency will be of its essence — the idea that justice must not only be delivered but seen to be done. As Ms Genn has explained, that means in part, ‘transparency in procedures, conspicuous impartiality and consistency, explanation of rules and decisions, and the promotion of procedures that give parties a voice in the proceedings.’ All those are well-known features of eBay’s modus operandi.

Closer to home for you, radical transparency is of course a hallmark of Amazon’s transformation of — for instance — book-buying. Anyone can browse on your site and instead of looking at just a print volume sitting on a shelf with a price sticker, can, in less than a minute, complete comparison-shopping for the e-book version with hardback and paperback alternatives and, with a few more minutes to spare, scan dozens of offers of second-hand books with descriptions of their physical condition from sellers who can be merely a short drive or a continent away.

For shopping unrelated to books, on the pages on your site for innumerable other products, your virtual store persistently reminds shoppers  of ‘more buying choices’ — lower prices from other sellers — and clearly demarcates listings that are advertisements or ‘sponsored’ displays.

We take all this for granted, now.

In his 2013 book, Tomorrow’s Lawyers, Richard Susskind describes ‘early incarnations’ of ‘an electronic legal marketplace’ that ‘include online reputation systems, which allow clients to share their views, online, on the performance and levels of service of their lawyers […], price comparison systems, which put the respective prices and rates of legal advisers and law firms on simple websites; and online legal auctions, not unlike eBay in concept, but best suited to legal work packages that are routine and repetitive.’ 

These windows into the mechanisms and methods of legal systems of the future are only part of the openness that will make it increasingly difficult for change-resistant lawyers to practise their dark arts.

Some American law reformers dismayed about their country’s slowness to join this revolution believe that technology companies could get involved to speed up the long-overdue benign disruption that their system is widely acknowledged to need.

Could there be a role for Amazon and you, here — performed, perhaps, through a special, new, not-for-profit legal services division?

Just a thought for you — about a chance, at the level of U.S. law and the courts, to roll over that log you mentioned, and make sure it is never repositioned to cover up foul, flagrantly unfair behaviour indulged in as a matter of course. 

Looking forward with keenest interest to seeing where your brush with darkness leads you next,

pG

Rich America is still the bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters? 

 

+entrance marin superior court vertical 300 postgutenberg@gmail.com

At the entrance to the Marin superior court and county offices in California: shelving designed by the complex’s architect, Frank Lloyd Wright

Surely it’s time for an American presidential candidate from either party to run on bringing U.S. law and the courts into the 21st century? Start a campaign for yoking digital technology to putting justice within the reach of the poor and comparatively powerless? 

That there has been no such initiative, no parallel in law for the fight about reforming the medical system, is especially remarkable in a country in which two lawyer-presidents of the last twenty years — Bill Clinton and Barack Obama — have had high-powered lawyer wives. In other words, for sixteen years, four legal specialists in a position to notice and do something chose to ignore a notoriously flawed legal system. At least two prominent candidates for the 2020 election have the right credentials. Both Elizabeth Warren and Kamala Harris are lawyers, one of them a law professor and the other a former attorney general of California — but will they care about doing the right thing?

According to a 2010 summary by two executives of the World Justice Project   — founded in 2006 ‘as a presidential initiative of the American Bar Association’:

[ In civil justice ] … a significant gap exists between rich and poor individuals in terms of both actual use of and satisfaction with the civil courts system. For example, only 40 percent of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71 percent of wealthy respondents. This 31 percent gap between poor and rich litigants in the United States is the widest among all developed countries sampled. In France this gap is only 5 percent; in South Korea, 4 percent; and in Spain, it is nonexistent.

In the WJP’s 2017-2018 Rule of Law Index — measuring ‘the extent to which countries adhere to the rule of law in practice’ — America ranked 19th, just below France and above South Korea, and several ranks beneath Estonia, Hong Kong and Singapore.

Speaking in London last month at the first international forum on online courts — the most hopeful technological innovation for anyone who cares about inequality in legal systems worldwide — Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, could only point to a single U.S. state, Utah, for an example of an online dispute resolution programme in America. The lack of support at the summit of the U.S. judiciary for the digitalisation of justice must have something to do with this. 

In Britain, where an online court for all branches of law is set to go live next year, the country’s most powerful judges are directing the transformation. When the legal scholar Hazel Genn delivered the prestigious Birkenhead lecture in 2017, she began by underlining their commitment to change. She noted that the year before, ’the Lord Chancellor, Lord Chief Justice, and Senior President of Tribunals published a joint statement signalling a “once in a lifetime” £1 billion transformation of the justice system.’

Who could advise a U.S. presidential candidate on an equivalent transformation across the Atlantic? Three years ago, almost to the day, post-Gutenberg drew attention to the ideas of Renee Newman Knake, a legal expert and professor who was at the time the co-director, with Daniel Martin Katz, of the ReInvent Law Laboratory at Michigan State University. Possibly her most radical suggestion was that corporate America could initiate the technological disruption and revolutionisation of the legal system. She mentioned Google and Walmart as companies that ‘have the capacity to make significant financial outlays into innovative legal mechanisms for providing legal services …’.

For a while, the ReInvent Law Laboratory seemed set to do exactly what its name promised. It got attention and won awards. An article in the journal of the American Bar Association trained a spotlight on its founders.  Sadly, Google’s search results for this would-be revolutionary cell run out in listings with 2014 dates. Professors Katz and Knake have moved to positions at other universities and seem to have gone silent on the topic of transforming U.S. law. The page about the Laboratory’s mission — which is dated 2013 and written mostly in the past tense — suggests that its focus has narrowed to protecting lawyers’ incomes: ‘Overall legal spend is increasing, but traditional lawyers are getting a smaller piece of the pie. We want to help prepare our students to invent and work in growing areas of the legal market.’

This is a considerable change in tone and substance from Professor Knake’s rallying cry in 2016, which is worth re-quoting:

A nation that holds itself out as a beacon of justice and an exemplar of the rule of law to the rest of the world denies meaningful access to the law on a daily basis to the majority of its population. Lawyers are out of reach for most individuals unless they enjoy extreme affluence or subsist at poverty levels. 

Although her more than justified outrage would make a fine speech for a presidential candidate next year, there is no sign of any candidate taking up her cause. The first pages of Google’s search results for the terms ‘law reform as a presidential campaign issue’ yield only links about election or campaign finance or drug law reform — so far. 

Neuroscience says that the power of faces is unique and crucial: should Facebook be allowed to effectively own it, with or without regulation?

Audrey Hepburn, Jiddu Krishnamurti, younger and older postgutenberg@gmail.com.jpg

Two striking 20th-century faces: Audrey Hepburn at 24, top L, and at 60, bottom R; Jiddu Krishnamurti at 15, top R, and at 86, bottom L

Law-making ¯politicians in Facebook’s home country are wrangling with Silicon Valley over whether regulations from Washington slated for drafting this year, putting Big Tech under some degree of pan-U.S. leash control — for the first time ever — should exert a tighter or looser grip on these companies.

That is beside the point. Especially in the case of Facebook, it is impossible that regulation could — remotely — address the actual need, which is to curtail severely the shaping by mere business executives of the relationship between people and the computer technology with which human lives are ever more subtly enmeshed.

What needs protection from the naked, exclusive pursuit of profit is the co-evolutionary future of men and machines. That this has so far been left to commerce defies belief.

Facebook began as an American college student’s invention of a new form of amusement — organising on a digital platform a sort of beauty or sex-appeal contest, not as a staged event but a long-playing rating game. Through Mark Zuckerberg’s entrepreneurial shrewdness — and a lot of lucky stumbling-upon — a businessman created a corporation made unprecedentedly powerful by exploiting an absolutely basic biological element in human attachment to other human beings. 

This, according to science, is the power of faces.

‘We have modules for learning to interpret facial expressions — parts of our brain learn that and nothing else.’ So we were told in 1993 in The Red Queen: Sex and the Evolution of Human Nature, a book in which the science writer Matt Ridley theorised about the links between our reproductive instincts and the evolution of our species. ‘It is possible that facial features are a clue to genetic or nurtured quality, or to character and personality,’ he wrote. One of the scientists he quoted described the face as ‘the most information-dense part of the body,’ — and through research in the intervening quarter-century, the evidence justifying that remark has only multiplied.

Should any traditional capitalist enterprise own that power? Even one whose ethics could be above reproach — unlike Facebook’s? From the perspective of our species, it is elemental power equivalent to effective ownership of the dominion of air, or water, fire or earth.

Surely this — above all else — is what needs to be impressed on legislators and policy advisers in every government weighing Big Tech’s role in society? Not as just an elegant philosophical perspective, but at the crux of the matter? 

The Age of Insight (2012), by the Austrian-American neuroscientist and Nobelist Eric Kandel, should be required reading for everyone involved in deciding what do about Facebook’s annexation of face-power. Extracts:

The brain mechanisms underlying face recognition emerge early in infancy. From birth onward, infants are much more likely to look at faces than at other objects. In addition, infants have a predilection for imitating facial expressions, a finding that is consistent with the central role that face perception plays in social interaction.

[…]

Instead of trying to process a face from a pattern of lines, as it does other visual images, the brain uses a template matching approach. It reconstructs the face from a more abstract, higher-order figural primitive: an oval containing two dots (for eyes, a vertical line between those dots (for the nose), and a horizontal line below them (for the mouth). Thus, perception of a face requires less deconstruction and reconstruction of an image than perception of other objects does.

[…]

Moreover, the brain is specialized to deal with faces. Unlike other complex forms, faces are easily recognizable only when they are right side up.

[…]

Faces are by far the most important category of object recognition … We approach people as friends or avoid them as foes by recognizing them, and we infer their emotional state from their facial expression.

The real question that legislators have to tackle has been raised repeatedly on this site: isn’t it time for Facebook to be owned by its users? (See: ‘The media establishment has begun to see sense in a user-owned Facebook …‘.)

The alternative of public control by turning technology giants into public utilities would be an invitation to governments to replace unregulated Big Tech in the Big Brother role into which Silicon Valley has been growing — alarming many of us, rightly, if the quality and sources of answers to the search engine query, ‘Is Big Tech Big Brother?’ are any guide.