Category Archives: culture

Restore the Fourth (that’s an amendment, y’all)

So, here’s another cross-post from Vermont Vigilance:

Tomorrow is America’s 237th birthday. I mean, its 208th 29th birthday! (Lookin’ good, America!)

To celebrate, why not join your fellow Americans in protesting the government’s callous disregard for the Fourth Amendment — the one that protects you against “unreasonable searches and seizures”.

There will be a coordinated set of protests nationwide rallying under the banner “Restore the Fourth”. As of now, there are sixty of them, so there is probably one near you. To find your local rally, go to this site:

Via reddit, here is a list of other things you can do to get involved and make a difference:

Breastfeeding is now Terrorism

So, this is reposted from Vermont Vigilance — a new blogging endeavor [full announcement t/k].

An article from the New York Post describing an incident where a Belgian couple were kicked out of the Metropolis Country Club in White Plains, New York after Roseline Remans began to breastfeed her infant son. In an all-too-common twist these days, their ejection was accompanied by charges of “terrorism”.

Here’s the story. Remans and her husband, Belgian diplomat Tom Neijens (First Secretary of the Belgium Mission to the UN) went to the Metropolis Country Club and asked if they could eat lunch there. They were told yes, they were welcome to eat on the terrace. When Remans started to breastfeed her daughter, a manager came over and told her that she was disturbing the other people at the club, and that she would have to finish in the restroom.

Now, first of all, for the country club to make this request was against New York state law. Section 79-e reads:

Right to breast feed. Notwithstanding any other provision of
  law, a mother may breast feed  her  baby  in  any  location,  public  or
  private, where the mother is otherwise authorized to be, irrespective of
  whether  or  not  the nipple of the mother's breast is covered during or
  incidental to the breast feeding.

In other words, even if you are a private club, once you tell someone that they can eat lunch in your restaurant, you can not then ban them from breastfeeding there. The NYCLU states:


  • To breastfeed your baby in any public or private place where you have a right to be.
  • This includes stores, day care centers, doctors’ offices, restaurants, parks, movie theaters and many other places.
  • No one can tell you to leave any of these places because you are breastfeeding, and no one can tell you to breastfeed in a bathroom, a basement or a private room.

Whether or not Neijens and Remans knew about the law I don’t know, but they argued that they should be able so stay. So, the club called the police, which led to this response, per the Post:

Detective Scott Harding allegedly yelled, “Close the doors!” and two other diners were told to leave the terrace.

“He was walking as if he was acting in a Western movie,” Neijens said. “He had one hand on his gun, one hand on his Taser.”

Neijens said the officer warned the couple they were trespassing and said some people at the club thought they were terrorists because of their black backpack.

When Remans, on the verge of tears, questioned why terrorists would breast-feed at a ritzy club, the cop allegedly replied, “In Sri Lanka, babies are used by terrorists.”

It is not obvious who played the terrorist card here, but there are two main possibilities:

  1. The club told the police that they had possible terrorists on their terrace — an effective way to punish people for not doing what you tell them to do, even if your instructions are illegal.
  2. The police responded to a request to remove some breastfeeding hippies from a swanky club. When they figured out that these were not run-of-the-mill hippies whom they could push around in the interest of catering to the elite, they tried to cover their tracks with, “Um, because, um, terrorism.”

In any event, it seems clear that someone used a disingenuous claim of concerns about terrorism to enforce certain norms of behavior, in violation of the law.

Swarm-Based Legal Action

So, last Thursday (June 20), the Supreme Court issued its ruling on the case of American Express Co. et al versus Italian Colors Restaurant et al.

The basics of the case are this. If you are a merchant who accepts American Express cards, you sign a contract with American Express. One of the clauses of that contract is that you can not participate in a class-action lawsuit against American Express. Instead, if you think they are doing something wrong, you commit to going through individual arbitration.

A group of merchants wanted to file a class-action lawsuit against American Express because they felt that it was violating antitrust legislation by using its monopoly status to charge merchants elevated fees.

So, if the contracts these merchants signed agreed to individual arbitration, and waived the right to file a class-action suit, why did they go ahead and file a class-action suit anyway?

Well, their argument was that compiling the legal documentation and expert analysis required to prove the anti-trust case would cost hundreds of thousands or millions of dollars. On the other hand, the payout to each merchant, should the suit prove successful, would be only in the tens of thousands of dollars. Therefore, even if they won, each merchant would have to spend more than they were awarded. So, they argued, because of the economics of the situation, they should be allowed to file a class-action suit, where those legal costs could be shared.

The court ruled (5-3) that no, the fact that you will spend more on arbitration than you would earn in a settlement is not sufficient reason to invalidate the class-action waiver in the contract.

Now, I don’t have a legal opinion on that ruling — other that that, despite the fact that it was authored by Scalia, it actually sounds reasonable — however, I do wonder what the consequences might be down the road, and what could be done differently.

In particular, I would expect this type of waiver clause to proliferate. Worst-case scenario, such a waiver would effectively immunize companies from all legal action where (1) the payout to individual litigants would be low, and (2) where some non-trivial level of legal and/or technical expertise was required to substantiate the complaint.

Enter the Swarm

So, here’s an idea for you: swarm-based legal action. Here’s roughly how I imagine it would work.

The simplest version would be just a pooling of resources outside of a formal class-action suit. You collect your litigants together. Someone (the collection of litigants, or maybe a law firm working on some sort of contingency basis) pays to put together the expert documentation, and each litigant takes that documentation separately into their own arbitration process. You could imagine some sort of sharing agreement: 25% of the proceeds from each arbitration go to the individual litigant, 75% goes to a common pool. The common pool is used to pay costs, and whatever is left over is divided among all litigants.

  1. This would mean that research costs involved in proving the case would be shared, making arbitration economically feasible.
  2. This would provide a sort of hedge for the participants — under the assumption that there is some noise in the arbitration process, depending on factors ranging from the individual personalities involved in a particular arbitration hearing to what everyone had for lunch.
  3. But, by not communalizing all of the proceeds, you make sure there is an incentive for individual litigants not to phone it in.

Now, the question is, would this be legal?

The dissenting Supreme Court opinion suggests that it might not be (hence their feeling that the class-action waiver should be voided):

The agreement’s problem is that it bars not just class actions, but also all mechanisms – many existing long before the Sherman Act, if that matters – for joinder or consolidation of claims, informal coordination among individual claimants, or amelioration or arbitral expenses. See supra, at 7. And contrary to the majority’s assertion, the Second Circuit well understood that point: It considered, for example, whether Italian Colors could shift expert expenses to Amex if its claim prevailed (no) or could join with merchants bringing similar claims to produce a common expert report (no again). See 554 F. 3d 300, 318 (2009).

The point about a common expert report in the Second Circuit ruling (here — follow-up 2012 ruling here) relates to another clause in the Card Acceptance Agreement, which they quote:

The arbitration proceeding and all testimony, filings, documents and any information relating to or presented during the arbitration proceedings shall be deemed to be confidential information not to be disclosed to any other party.

But surely there is a way around this. For example, the merchants could reach their agreement about cost-sharing in the preparation of the report, and, once they had committed to this agreement, would gain access to it. Then, they could use the information in that report in their arbitration (or not — with the confidentiality clause there would be no verifying it).

The only question is whether or not the outcome of the arbitration would be subject to the confidentiality clause. If it were, you would have to structure it as a straight-up purchase of expert documentation, with the expert and legal fees paid at a flat rate (not contingent on the outcome of the arbitration), and divided among all of the merchants. You would lose the benefit of being able to hedge outcomes by partial sharing of the proceeds, but you would still be able to make it work.

The Smart Swarm

But, what if you can report back with the outcome of the arbitration process — at least a win/lose outcome, or, preferably, a dollar amount? Then, you could open up a new set of possibilities, where you turn the requirement for individual arbitration from a handicap into a collective advantage.

Instead of producing a single expert report and legal filing, maybe you produce a diversity of documentation — versions that perhaps vary in their framing or emphasis. Then run though the first set of arbitration procedures — see what works and what does not work — discard ineffective strategies and build new diversity around successful ones.

Basically, use the fact that you have a large population of individuals or businesses to optimize your arbitration strategy using an Evolutionary algorithm.

For this to work, the only real requirement would be the ability to report back out of arbitration what the outcome was. This is critical for two reasons:

  1. For the evolutionary learning to take place, you have to know the outcome of each experiment.
  2. A common pool, where proceeds are shared, would be required to get individuals to buy into the scheme, particularly at the early stages, where you are explicitly asking some people to go into arbitration with what you suspect may be sub-optimal strategies, for the purpose of improving the function of the swarm as a whole.

In fact, I think this might be a winning strategy more generally, not just in circumstances where class-action suits are prohibited.

What do you think, armchair legal scholars?

Snowden in Russian Airspace, Eventual Destination Unknown

So, the Guardian is reporting this morning that NSA whistleblower Edward Snowden has left Hong Kong — legally, since the Hong Kong government had not yet agreed to requests from the US to detain him. As of 5:20 this morning (Eastern Time), he was “over Russian airspace accompanied by WikiLeaks legal advisors”. This was sourced to the WikiLeaks twitter account, meaning that the only way this story could be more of the moment is if Snowden married Zooey Deschanel and returned with her and three hand-raised dragons to reconquer the Oval Throne (ICYMI).

Update: Sorry. Should have made clear. The flight Snowden is was headed for Moscow, and was scheduled to land about now (9:25am Eastern). The WikiLeaks legal team is working to find a democratic country that would be willing to offer asylum.

Rumor is that his target destination may be Venezuela.

Update #2: Snowden has applied for asylum from Ecuador.

Cognitive Biases and the Trouble with Moral Local Shopping

So, the other day, after picking my son up from school, I stopped in at the local hardware store to pick up something or other, maybe a sack of nuts few screws. The nuts screws would have been cheaper at Lowe’s or Home Depot, but I try to shop local when I can. That is, I am happy to pay a higher price for the satisfaction of feeling like I’m supporting the local economy rather than a big corporation, for a sense that the employees are well paid and well treated (whether true or not), and with the idea that sometimes it’s really convenient to have a local hardware store, and it would be a shame if it went out of business and I had to drive over to Lowe’s or Home Depot every time my nut sack screw drawer was empty.

Now, as often happens when you run an errand after picking your son up at school, we were in the middle of shopping when he announced that he needed to use the bathroom. So, I found one of the very nice employees there and asked if he could, you know, use the bathroom.

He said no. More specifically, he said that normally he would let us use it, but the assistant manager was in the store that day, and he was worried that the assistant manager would tell the owner, who had a policy that customers could not use the bathroom. He apologized, and recommended that we go across the street to Dunkin’ Donuts, where they have nice, clean bathrooms, and they don’t give you a hard time, even if you come in to use them without buying anything.

Okay, so what the hell?

The standard story that we tell each other and ourselves when we are bemoaning the loss of little mom-and-pop stores is that these big chain stores are run by heartless corporations, that local business owners know and care about their customers, that they see them as people, rather than just sources of revenue. Why then do Lowe’s and Home Depot have open, well marked bathrooms, while my local hardware store has frightened employees who steer me towards Dunkin’ Donuts?

Of course, this isn’t really about bathrooms. Let me tell you another story.

A couple of days ago, I found a cool looking coffee shop that seemed to emphasize ethical sourcing of its beans, and was staffed by a bunch of people with various tattoos, piercings, and hair dyes. My initial thought was, “Hey, this is cool. I could work here instead of Starbucks, and I could encourage people I know to come here, too.”

As you probably know, the way wifi works at Starbucks is that you click a button in your web browser, agreeing to terms of use, and that’s it.

At this place, they had access to a paid wifi service. Now, they offered free access as well, but I had to go back up to the counter, wait in line again, and ask for the password, which was handed to me on a small card, and gave me access for two hours.

This, like the bathroom, is not a big thing. It’s a little thing, but it’s an annoying little thing. I can’t even tell you how much I paid for my coffee, or whether it was more or less than I would have paid at Starbucks. AND, given the choice, I would favor the smaller business on general principles, but this little thing left me soured on the experience.

My point is not to argue that Lowe’s, Home Depot, and Dunkin’ Donuts are offering public bathrooms as part of a philanthropic effort to prevent public urination and bladder infections. I’m sure that these corporations are just as calculating and heartless as we all imagine them to be. There is only one reason for these corporations to provide nice, clean public bathrooms: the costs (in space, supplies, and cleaning) are outweighed by the benefits (in customer satisfaction and loyalty).

Remember a few years ago Starbucks did not have free and open wifi. For a while they put time limits on it, or required that you use a Starbucks card to access it. So why did they make it so easy now? Well, presumably for the exact same reason that Dunkin’ Donuts lets you use their bathroom: because it makes financial sense.

Sure, there are downsides to having free, unlimited wifi at your coffee shop. Sometimes you’re going to get a customer who milks a single cup of coffee for six hours, taking up a table and an outlet. It has to be hard not to look at that customer and get resentful, to feel like they are ripping you off, getting away with something. But here’s the thing. Whatever that customer is costing you, you are more than earning back from the people who came to your coffee shop because you have free, unlimited wifi. Maybe you even earn it back from that same customer, who uses your table all day on Monday, and then picks up his coffee to go on Tuesday, Wednesday, Thursday, and Friday.

The problem is that the guy who is sitting there using the wifi all day is cognitively salient. After all, he’s sitting right there! All day! It is easy to sit there and brood about how he is cheating the system, getting away with something. The extra customers you get are less salient, because it is easy to imagine that they would have come in anyway. If someone is on the wifi for only half an hour, why would it matter if you have a two-hour limit?

I suspect the difference is that open, unlimited, easy-to-access wifi makes you feel welcome, while limited, closed wifi makes you feel at best like a supplicant and at worst like a would-be criminal who is being scolded in advance.

Why am I so sure that free, open, unlimited wifi is the financially smarter move? Because big corporations like Starbucks and Panera, with lots of data and people who are trying to maximize profits, deliberately switched to the unlimited system.

What puzzles me is why small business owners don’t look at this and say, “You know what? If I am going to compete with these big stores, I should set up free wifi and a nice bathroom. I should try to make my customers feel as welcome and comfortable as I can.”

I suspect that there are two problems here. The first, which I have already alluded to, is one of cognitive biases. It is true in a wide range of contexts that negative events impact us more strongly than positive events: it is emotionally more painful to lose five dollars than it is emotionally gratifying to gain five dollars. So the guy who is freeloading on your wifi is more emotionally salient than all of the people who come for the wifi, spend money, and then leave again before you get mad.

This is a place where the cold, calculating nature of the disembodied corporation has an advantage. It can actually crunch those numbers and discover that this is one of those circumstances where you can cast your wifi upon the waters, for you will find customers after many days.

This may be the difference between the owner and the employee as well. If we use the bathroom, maybe the owner perceives that cost in a direct, emotional way that the employee does not, despite the fact that the employee is more likely to be the one who has to clean the bathroom.

The second problem, I think, is the moral language that we often use when discussing shopping locally, where it is presented as a moral duty to support local businesses. I think that there might be some good, rational reasons to shop locally when possible, but I think that the moral framing causes more harm than good. Small-business owners will often use this as a sort of crutch: “If you’re not shopping local, it’s because you’re a bad person, not because I provide an inferior product at a higher price.” It seems to me that if you’re going to start an independent coffee shop, you need to ask yourself, “What can I do to provide the most satisfying experience for my customers? How can I use my local knowledge and connections to create something wonderful that Starbucks could never pull off?” Every now and then you find something like that. When I lived in Santa Fe, there were a few different places that successfully did this, and I would rotate around, working in various locations, and spending way too much money on coffee.

Of course, the moral argument — this vague sense that small businesses are somehow better than big ones — is one that I buy to an extent. It is one of the reason why I’m willing to pay a little bit more to re-nut my sack. But when the moral argument takes center stage, it eliminates the incentive on small businesses to think creatively about what they’re doing — or at least to copy uncreatively the best practices of their most successful competitors.

Free Tips for ex-Westboro Baptists Apologizing

So, nobody asked me for this advice, but if I only gave out advice when people asked for it, I would probably burst from all the advice building up inside me.

Today, Anderson Cooper apparently interviewed Libby Phelps Alvarez, granddaughter of Westboro Baptist founder Fred Phelps (via Gawker — I did not watch this). She was raised in the church, but fled / escaped / defected in 2009, and has recently started speaking publicly about her experience. Let me just say that she deserves a lot of respect for that. I mean, she had to reject her whole upbringing and family, which must be hard, even if your family is full of Phelpses.

Here’s the thing that pissed me off though. Her interview included the following statement of regret:

I do regret if I hurt people, because that was never my intention.

This is such the standard, cliche pseudo-apology that it is easy at first glance to overlook what an offensive pile of garbage this is. First of all, “if”? Really? Again, this is super common in these circumstances, but if you’ve spent most of your live holding up “God Hates Fags” signs at the funerals of soldiers and children, you know damn well that you hurt people.

Even worse, though, is the second bit. When some politician or celebrity pseudo-apologizes, saying it was never their intention to hurt anyone, it is often at least plausible that they were being careless, and not intentionally hurtful.

In this case though, hurting people is precisely the intention of every public appearance the Westboro Baptist Church makes. Now, maybe you could make the case that you thought you were practicing tough love, hurting people in a way that would lead them back to the path of righteousness, or some such nonsense. This would be bullshit, of course, but it would at least be plausible according to some sort of twisted logic.

The fact is, you did intend to hurt people. I believe that you wish now that you had not hurt people in the past, and that’s great. I believe that you were a kid, did not know better, and are not fully responsible for your actions, at least up to a point. I believe that you think of yourself as a good person, and I am eager to believe that you have become one. But when I see this sort of pseudo-apology, it makes me a little bit skeptical.

Maybe try something like this: “I know that I hurt a lot of people, and I am sorry. I understand now how hurtful my words and actions were in a way that I did not understand then.”

I feel bad about this. I mean, given where she started from, she has progressed further in the past few years than most people do in their lifetimes. But if you’re going to make amends publicly, a good way to start is by being honest.

Here’s your White History Month(s), Asshole

So, it’s Black History Month again, which means that it’s time for whiny racists to renew their annual cry of, “Why isn’t there a White History Month? Isn’t that reverse racism, which is really just racism? You know, whites are actually this country’s second class citizens.” And so on.

There are two responses that you normally hear, both of which I am sympathetic to. The snarky one is that every other month is basically white history month. The earnest one is that we need a black history month because the history and contributions of African Americans are still underrepresented in the public consciousness when compared with the canonical history of the Washingtons and Roosevelts.

But there is another, less snarky version of the first answer, which is that there are, in fact, numerous recognized history and heritage months celebrating the history and contributions of people who are by and large subsets of “white.”

So, here, for future reference, are your White History Months, (as per this Awareness Month Calendar from Nellis Air Force Base):

  • March: Irish-American Heritage Month
  • March: Greek-American Heritage Month
  • April: Arab-American Heritage Month
  • April: Tartan (Scottish-American) Heritage Month
  • May: Jewish-American Heritage Month
  • July: French-American Heritage Month
  • September 15 – October 15: German-American Heritage Month
  • October: Italian American Heritage Month
Other, non-Black Heritage Months:
  • May: Asian-American and Pacific Islander Heritage Month
  • June: Caribbean-American Heritage Month
  • November: Native-American Heritage Month
Hispanic Heritage month is also September 15 – October 15. From a legal perspective, “Hispanic” is an ethnic identity that is orthogonal to race, so that you can be “White Hispanic” or “Black Hispanic” when you’re filling out your equal opportunity questionnaire. So, Hispanic Heritage Month might count as a sort of partial White History Month. I’ve left it out of the list, though, since I suspect that most people who are complaining about the lack of a White History Month don’t mean to include Hispanics when they say “White.” Similarly, Women’s History Month (March).
In addition, you can find, at the state and local level, History Months and Weeks for Russians, Swedes, Dutch, Czechs, and on and on.
For the White Survivalists out there, there’s even a National Preparedness Month (September).
Also, Movember.

The Week in Star Wars: Silent Film and Traceroute Scroll

So, here are a couple of items for you Star Wars fans out there.

First, here’s the “I am your father” scene from Empire, rendered as a silent film:

(via @brainpicker)

Second, you should open a terminal window on your computer right now and type in the following command:


It might take some time, since a lot of people are doing this right now, but the wait is worth it. (Assuming you’re a huge dork.)

If you don’t know how to open a terminal window, consult your friend with the thickest neck beard. They should be able to help you.

Today’s awesome masculism hashtag

So, as soon as you are back home from stocking up on marshmallow fluff and shuriken for the latest snowpocalypse, you need to go to twitter and check out this hashtag: #INeedMasculismBecause

Here’s an uncurated screengrab from right now. The awesomeness in just this snippet gives you some indication of the high-quality snark being generated right now:

There’s also a fair bit of amusement to be had in the “Men’s Rights” folks who stumble on the hashtag non-ironically.

Update: It sort of looks to me like this was maybe started non-ironically by the men’s rights folks, and has been coopted by snark. It’s sort of like meta-trolling.