Wednesday, July 18, 2018

Why Is It Suddenly So Hard for People To Know Things?

If you’re like me, you’re watching the news, actively engaging with social media, and from time to time engaging in actual face-to-face conversations with other people, and you’re asking the question:

Why is it so hard, suddenly, for people to know things?  Or put more cynically: How is it that I and other right-minded people can be so secure in my knowledge about a great many things — including and most importantly What’s Really Going On in the World — while at the same time a roughly equal number of folks on the other side are utterly, stubbornly deluded and resistant to plain facts?

If you’re interested in sustaining a civil society, this seems like an important question.  Maybe even the important question, as an informed and engaged citizenry is essential to the operation of a democratic republic. 
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(This seems obvious, but as a thought exercise let’s take a moment to toggle the switches and explore the three other possibilities:

  • Uninformed, disengaged population --> tyranny in a hurry.
  • Informed, disengaged population --> tyranny by the scenic route, and with a few more complaints.
  • Engaged, uninformed population --> division and anarchy, until some collection of interests comes to predominate over all others, at which point you can fairly expect tyranny.)
Having covered all that, how do we describe our current condition?  It’s fair to say that none of the four categories adequately captures the particular predicament we’re confronting right here right now, in the United States in 2018.  To be sure, there is a critical mass of people who care deeply about the nation, its direction, and the many issues and controversies at the forefront of our politics.  This to the point that I’d say, taken together from both sides of the aisle, there are enough of us invested in current events and their implications to support the conclusion that for better or for worse, yes, the people are engaged. 

The next question is are the people informed?  I don’t think we can deny that they are.  This is, after all, the Information Age.  Each of us has by orders of magnitude greater access to information than the American people did even twenty years ago.  And each of us participates daily in the circulation and flow of that information.  At least, that’s what I think we’re doing on our phones.

But there is a problem here.  Something’s broken.  In fact, in a time of perhaps unprecedented division and bitterness in our politics — at least since the First Civil War (see what I did there?) — the following may be the single proposition on which liberals and conservatives largely agree: There is a real, and threatening, information gap cleaving the nation in two.  Partisans will complain that framing the problem at this level of generality was a trick.  You did get us to agree, Phutatorius, but for different reasons.  The left believes the right is willfully under- and misinformed, blinded by ideology and impervious to the actual evidence.  The right sees the left as captives of corrupt institutions that distort the political process with slanted information.  I have my own opinion on who’s right here, but I’ll save it for later.  For now, let’s offer the neutral framing that the two sides are differently informed and leave it there.

Having settled that proposition, we can start breaking down how we landed ourselves in this blind alley, where we have ready, near-immediate access to 1.2 million terabytes of online information (some of it, admittedly, behind paywalls), but we can’t reach basic agreement on what we know.

A first step is to consider, at the 50,000-foot level, how we come to know things.  I.e., what processes do we undertake to draw conclusions about the world we live in?  The short answer is all kinds, but because I’m a lawyer, and becoming a lawyer indelibly alters your mind, one such process strikes me as especially attractive and beneficial.  And here it is: we come to know things by (1) making observations, (2) examining the evidence provided by those observations, and (3) making conclusions.

Elaborate, Phutatorius.

I shall.  Let’s talk first about observations.  We can often observe immediate events personally — I know my son’s and daughter’s ages because I witnessed their births firsthand.  I was present, in the hospital room, on a particular date, when my children entered the world, and I can calculate their current ages with reference to that date.

(It’s not that simple, necessarily.  Because as time passes, the births of my children become increasingly remote events, not so much in place but in time, with the result that I have to rely on my memory.  That’s easy to do, for an event like the birth of my children.  But there are often cases where facts slip from memory — or they would — so we rely on supporting evidence that records facts: say, a birth certificate, or the date-stamps on photos of the newborn baby.  More on this below.)

Events that are place-remote are more problematic for me to observe, for the obvious reason than that I’m not there.  In cases like these, I need to rely on someone else’s account of what happened.  I am able to know Mithridates’ daughter’s age, because he told me when his daughter was born.  He was there, he strikes me as someone who would be a reliable source on this question, and I don’t have any reason to believe he would lie.  These three factors — immediate presence at the event, a relationship suggesting he would be particularly attentive to the event, and no obvious motivation to lie — make Mithridates a reliable authority on the question of when his daughter was born.  On this basis I can receive his evidence and, without requiring corroborating information, arrive at a definitive conclusion on his daughter’s date of birth.  Do I know the DOB to the point of absolute certainty?  No, but I am satisfied.

So we have firsthand evidence (what we personally witnessed), and secondhand evidence (what someone else tells us).  Written documents, generally speaking, are secondhand evidence.  The birth certificate records the hospital’s testimony as witness to a child’s birth.  They aren’t more authoritative, necessarily, than what Mithridates told me.  But because we can imagine cases where we might have reason to find Mithridates less reliable — say, he was out of the room, he was fried on LSD, or he is embroiled in a legal controversy to establish his child’s citizenship status — contemporaneous written documentation from a neutral arbiter (here, the hospital) comes with an additional measure of authority that can be important. 

(We can ask whether a written recording of firsthand evidence — a note to myself, written in my journal — is secondhand evidence, too.  If I don’t remember the event per se, and I need the writing to remind me, one could argue that written evidence is in fact secondhand evidence.  And in the course of evaluating its authority I should apply many of the same principles I would to a writing prepared by someone else.  Indeed, my first question should be: do I remember writing this?  If I didn’t, I can examine the handwriting to determine if it looks like mine.  I can examine the journal to determine if it is familiar to me and has ever left my custody.  And so on.  Ultimately, the question I am required to answer is whether the journal entry is an authoritative record of the events it purports to describe.  Whether or not my journal entry provides secondhand evidence or a recording of firsthand evidence is really an academic exercise.)

A further note on the subject of documents merits a brief discussion.  Certain documents may be regarded as more reliable than others, because rather than simply inscribe what a witness perceived, they are instead created by technologies that allow for the direct recording of an event.  An audio or video recording of a courtroom proceeding will generally be regarded as more reliable than the court reporter’s transcript, because in the latter case events in the courtroom are mediated by the court reporter’s perception, with the result that the transcript could be marred by mistakes, or for that matter the court reporter’s bad faith.  By the same token, an audio or video recording could be fabricated or doctored, and it is for this reason that “chain of custody” evidence is important in a court of law.

This process that we undertake, in order to know things, happens in most cases on automatic.  There’s no clutch we have to engage, and we don’t talk ourselves through the work of gathering, sorting through, and evaluating evidence.  All day long we receive information, assess it, assign measures of authority to it, and draw conclusions from it — largely unaware that we are working through a process each time we do it.  I look at the baseball score.  The Indians are losing.  I don’t belabor the question whether the MLB.com website is reporting accurate information, whether it might have been hacked and is now reporting a false score to me, whether the true score was reported from MLB.com but was garbled or intercepted and replaced on its way to see me.  And I don’t have any reason to question the conclusion.  The Indians are playing the Yankees.  I would like them to be winning, but it doesn’t strain credulity that they’re not.  I see the score, I accept it with resignation, and I move on.

Because in most cases we draw final conclusions about what we know so easily, so quickly — so blithely — we tend to understate the extent to which we personally play a role in deciding what we know.  Although at times it might seem so, information does not act upon us.  It doesn’t just pilot its way to our brains, land and stick there.  We actually operate a tower that summons the information and assigns it a runway.  And there’s always the possibility that we might reject the information.  We may conclude that it does not, in fact, come from an authoritative source.  Or we may conclude that the source is authoritative as a general matter (it’s never been wrong before), and it seems as if it would be authoritative in this particular instance (like Mithridates, it was present, attentive, faithfully recording what it perceived, and having no reason to lie), but it just doesn’t fit into the broader system of conclusions we’ve previously drawn.  It just can’t be true.  That guy sold us Pudding Pops for decades.  He can’t be a rapist.

We’ve covered some ground here, but it seems to me we’ve only scratched the surface of real epistemology, and we have not yet even started to consider why a process like the one I’ve described could fail, or could lead to such a yawning, sprawling, chasmic Information Gap as we’re seeing right here, right now in 2018.  Returning, then, to the question embedded in the title of this post — Why is it so hard, suddenly, for people to know things? — I’ll throw out these ideas, which I’ll explore more fully in subsequent posts (not necessarily in this order):

  • First, there are gradations of knowable-ness.  For example, What did the President say at the press conference? is, one should think, a question we should be able to settle, among all parties.  What did the President mean to say? is a harder question.  Why did the President say it? and What was he thinking? are still harder.  And don’t even get me started on a question like Do tax cuts promote economic growth?  I would argue that over time, our tendency to engage in vigorous disputation on the less knowable propositions has bled over into the more knowable propositions.  We have called off the hard arguments on the notion that “reasonable minds can disagree,” and in so doing we’ve set the stage to apply that principle to questions where, to be honest, reasonable minds probably shouldn’t.  Add to this the proposition that nothing — nothing at all — can be known to absolute epistemological certainty, and suddenly everything seems like fair game.
  • Second, the networked world makes it harder to know things.  One obvious reason for this is that in a networked world, there is more information interference.  But more than this, cause and effect determinations, which comprise one important subset of knowable propositions, are much harder to make, because the Internet enables a multiplicity of distant and diffuse causes to render actual effects, big or small, without regard to time displacement or distance.
  • Third, the Internet and digital media have created a crisis of authority, by devolving the capacity to generate and broadly publish information from capitalized elites to, well, anybody.  This is a good thing if, for example, you’re a nobody to book publishers and you’re starting a blog.  But it problematizes knowledge determinations by, among other things, enabling the publication of information untethered to journalistic or editorial standards.  For centuries we relied on media elites to provide information to us, and we assumed reliability.  Our media literacy — our ability to assess the quality and bona fides of information sources has atrophied.  Or we never had occasion to develop it in the first place.  As a result, we are struggling to apply traditional indicia of reliability, toward fairly and reasonably evaluating evidence.
  • Fourth, and relatedly, the Internet and digital media have created a crisis of authenticity.  We are accustomed to examining documents — in text, photographs, recorded audio and video — and taking at face value that they are authentic and accurate.  But through technology unprincipled persons can, and increasingly they are, fabricating and altering documents with an expertise that we’re just not gonna catch.  Seriously.  This is only going to get worse.
  • Fifth, and with my apologies to Republicans for walking back from neutrality, there has been for decades now a concerted effort by the right wing to attack the legitimacy of institutional sources of information that are central to our civil society, in order to obtain short-term political advantage.  Targets include the New York Times, the Washington Post, CNN, network news, institutions of higher education, and lately even the Congressional Budget Office and the Joint Committee on Taxation.  As a result, a large portion of the country has been convinced to reject out of hand reporting and assessments from principled and generally reliable information sources.
  • Sixth, not everyone hews to or even favors an evidence-based approach to knowledge all of the time.  Am I engaging in unfair speculation when I suggest that religious fundamentalists who predicate so much of their understanding of the spiritual world on faith (which I won’t criticize) will be susceptible to basing their understanding of material and sublunary political matters on faith, too (which I will?).  There is a go-with-your-gut, reject-the-evidence mentality that predominates on one side of the political debate.  The process these folks follow will absolutely lead to divergent results, as against evidence-based analysis.
  • Seventh, and I mentioned this briefly above: in the end we decide what we know.  And it is in that point in the process — even in the evidence-based process I would favor — that we are most at risk.  Every human weakness is brought to bear, and applies its leverage, at that point.  And there are a lot of human weaknesses.  Just to name a few: prejudice, spite, pride, grievance, group identity.
More to come.

Sunday, July 15, 2018

Where Have You Been, and Why Are You Here Now?

We’re back.  It’s years later, and here we are crawling back.  And we’re out of practice.  And weak.  But bear with me, because I think it’s worth pausing a minute to explain, as best I can, why we’ve been gone and why we’re back now.  

To be fair, I don’t even know if we are back.  I can only speak for myself.  So for now, and with crossed fingers — Mithridates: are you there? — I’ll abandon the first-person plural, lest I appear to be writing as The Royal We.

Edit made, then: I’ll explain why I’ve been gone and why I’m back now.  Not that it makes a damn bit of difference one way or the other in the Grand Scheme of Things (which, incidentally, is starting to look increasingly like an Actual Grand Scheme), but because maybe this seven-year drift out and back might allow me room to reflect on the progress of said Grand Scheme, through what exactly it’s done to me.
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For sure, there are lots of personal reasons that figure into why I’ve posted exactly once to this blog in seven years — why, when I visited the home page just a moment ago the URL didn’t even auto-complete, and I had to type the whole damned thing and hit Return to conjure it up.  Let’s run through those quickly:
  • Small children getting older, meaning later bedtimes, and thus fewer opportunities to sit down, in a moment’s tranquility, to gather my thoughts.
  • Small children getting older, meaning more commitments over and above the eight-hour workday.  To take one example, I’ve been coaching a soccer team [pause for laugh track].
  • Recommitment to fitness.  When I’ve had an hour free in the evening, I’ve been out running, or on the elliptical.
  • Peak TV — which, among other things, helps to get me on the elliptical.
  • Exhaustion from the recommitment to fitness, which is all the greater because I am on the cusp of middle age.

So fine: I have needed to make, and have made, personal choices.  Not much about that is interesting or meaningful outside of the four walls of this room.

But there are two other factors that might be, and here they are: (1) around 2011 I got hold of my first smartphone, and (2) around the same time, I got lost in social media.  Now it is not my intention here to cast ballots for or against iPhones and Facebook.  I will, however, testify to how these two innovations changed my relationship with the Internet, with the result that I have been reacting to a great many things, but not thoughtfully, and not so very productively, either.

When Mithridates and I founded this blog, we were genuinely excited about the ability that the Internet and digital media conferred upon us — that we might communicate our ideas directly and immediate to anyone in the world, untroubled by the constraints of time and space and without submission to the preferences of the gatekeepers who had, by virtue of owning printing presses, heretofore held the privilege of deciding What the World Would Read.  This after for my part, I had spent more than a decade performing an elaborate Dance of the Seven Veils to literary agents and fiction publishers who were at the least immune to — and probably nonplussed by — my awkward attempts at seduction.

We were genuinely beside ourselves with excitement.

And we generated content.  Content of all kinds: political commentary, legal analysis, film and record reviews, news roundups.  We were, the two of us, trying to produce an online general interest magazine.  And this was in addition to ridiculous serial first-person fiction I was writing and a blog where I published letters I had sent, public and private, back when I wrote letters.

On a given day I might imagine what would happen if the Flaming Lips’ Yoshimi challenged Triangle Man, They Might Be Giants’ reigning champion, to a fight.  On another day Mithridates would propose an elegant, neutral solution to probably the single most significant political problem facing the country.  And when we weren’t creating, editing, posting, commenting on one another’s posts, we would rush over to review the site analytics, where we would learn that in the past three days, we’d had three visitors.  To the entire site.

If you were using Google Analytics ten years ago, then you would know that at least back then (can’t say what it does now) it tracked visitors by state of origin.  Notwithstanding that extremely blunt instrument for traffic analysis, we were still able to know exactly who was visiting our site — because our user base was that small and consisted entirely of firsthand acquaintances.

And while it is true that the internal satisfaction that comes from writing — of framing, rendering, and recording one’s own thoughts for Some Future, Slightly Different Iteration of Self to review later — there comes a time when the Self downloads and installs its latest update, squints into the computer screen, and asks the question:

Why do I keep doing this, when next to no one (else) is reading it?

And along comes Facebook.  And Twitter.  And Facebook and Twitter promise some greater satisfaction, in the form of (1) an audience of Friends/ Followers, and (2) a (limited, in the case of FB) promise that some of your content will find its way into a feed for those Friends/ Followers to look at, every night, between 10:30 and 11:30 PM.  And if your Friends/ Followers like what they say, they can hit a button and tell you so.  

And that’s gratification.  To be sure, it doesn’t mean much: Likes and retweets are unlimited resources.  They never run low, they cost nothing, and so they’re easy to give away.  But if you’re me, and you’ve been sending query letters into The Literary Void for years on end, if you’ve run at various times five blogs that have over fourteen years accumulated more comments from bots than from real people … well, let’s just say a guy can get hooked on Likes.  (Not so much the retweets, in my case, because I’ve never really taken to Twitter like I have to FB.)

But of course there’s a catch to Like-fishing on Facebook, and it’s this: unless you’re Dan Rather (who somehow, some way, is getting away with it), nobody wants to read a 1000-word post on Facebook.  You have to keep it short.  You have to keep it snappy.  Hell, in most cases, you’re best off simply recirculating something short and snappy that someone else — some distant person you’ll never meet, if he/she even exists at all and isn’t instead and in fact 100 lines of code written to generate and release sentiments optimized for viral distribution — wrote three days ago in a meme square.

So the trade-off is as follows: you can spend your evening on Facebook, snapping off a dozen or more clever and poignant observations, under three lines please, and actually elicit one of five prefabbed reactions (Like, Love, Sad, Angry, Funny) from a dozen or more people, or you can spend an evening on Blogger, trying against the odds to write a single nuanced, complex, insightful post, secure in the knowledge that no one other than possibly Mithridates will ever know it exists.  And in a seven-year moment of weakness, I chose Facebook, fully realizing that I was adding nothing of value to the discourse —even snapping off, from time to time, clever and poignant FB posts bemoaning the devalued state of FB discourse — but it was enough to know that I was actually participating in a discourse.

And that’s Facebook, which doesn’t even have character limits.  Don’t even get me started on Twitter, which is distinguishable from Facebook principally in that Facebook’s object is to make you feel good through surface-level interaction with Friends, while Twitter’s is to make you feel terrified and hopeless through surface-level interaction with strangers who hate you and want you to die.  We credited Twitter with destroying tyranny in North Africa, and we were quite surprised when it was later deployed to destroy democracy in Europe and the Americas.  But the truth is that we should have seen this coming.  Building things, and then sustaining what you’ve built, is hard.  It requires nuance and complexity and insight, and just you try to fit that into 140 characters.  Destroying things is easy — it takes comparatively little text to insult people, or to alienate, frighten, or incite them to violence.  Character limits call for incisiveness, the elimination of niceties.  They favor the clever, and clever turns quickly into snarky, and snarky into mean.  You might think that doubling the character limit to 280 would open the door for a more constructive discourse, but by the time that happened, the rules of engagement were too well established in the Twitterverse, and the concrete had set solid.  They had only doubled the number of barrels in the gun.

Is there a more telling commentary on the state of our social, political, and intellectual discourse than this: that someone actually reduced the phrase “too long; didn’t read” to an acronym — and that, without irony, it caught on?

But I worry I’m piling on here, when the truth is that by virtue of social media I access more information, from more sources, than I ever would through a web browser or search engine.  A hundred, maybe a thousand links flash by my eyes each day, via FB and Twitter.  That’s great news.  We all, each of us, curate collections of content, and through our relationships on social media and the authority we accrue through those relationships, we are able to share those collections with hundreds of direct contacts, and they proliferate onward to thousands, maybe millions.  And with a cell phone in my hand, I can do this from a moving train, from the beach, from under a desk during this week’s mass shooting.  This is powerful, and actually empowering.

But for me, in this moment, it’s not enough.  It’s not enough, because while I may be curating that collection of content, reading an article or watching a video, passing it along, attaching an endorsement, a wry comment, or a brief expression of outrage, I’m not creating anything.  And I have been allowing that part of my brain that formulates and expresses ideas to atrophy.  Eight to ten years into the Social Media Evolution, I am emotionally sharp — I LOL with the best of them, and I can rise to anger at a moment’s notice.  I just don’t think anymore, like I used to, and I certainly don’t write anymore.

That needs to change.  Because the state of the world today has me thinking — a lot — about what’s important.  And what I read and see online, including and especially on FB and Twitter, prompts me to think even more, and (I hope) in a more sophisticated way.  There’s room here, on this blog, for me to write all this down.  It might be that only a handful of people actually find it here, and every one of them takes a brief look, rolls his/her eyes and types TL;DR in the comments.  But I’m back in the mode now where it’s important to me — and it can be enough — just to write it down.


So here goes.

Saturday, September 20, 2014

Actual Outrage: The Termination of the iPod Classic

As I advance in years and I subdivide my decreasing energies across an ever greater range of concerns, personal and political, I find that I have to be principled and selective in drawing on the reserves I set aside for outrage.  Thus and so, while I can understand the "hand off my megabytes" attitude the Twittersphere has adopted re Apple's U2 push promotion, I can't get too worked up about it.  After all, whatever U2 and Apple may have inflicted on my hard drive (I say "may have" because I haven't even gone to check), I have over the years dropped full price on other, surely more grievous offenses to my iTunes Library.

— I'm looking at you, Black Keys

That said, I figured I'd throw some thoughts together about what, among the many events of September 9, DID outrage me.

I entered my music-buying years just as cassette tapes were giving way to CD, and I harbored exactly zero sentimentality about transitioning between these media.  The benefits of CDs were NUTS.  You could jump track to track, there was no rewinding required, and you didn't have to live in fear that your favorite LP would spill its guts out in the player, and you'd have to spend hours untwisting and respooling it.  Plus the CDs came out in long boxes you could cut up and tack on your bedroom wall. What could matter more to a 14-year-old boy?

I can't speak to vinyl v. CD, as vinyl went out of play for me years earlier.  My fave records were the soundtrack to Disney's Robin Hood ("Oo-De-Lally") and Cyndi Lauper's She's So Unusual ("She Bop").  Sound quality and fidelity weren't priorities for me back in those halcyon pre-adolescent days, and in truth, they still aren't.  My first real interest in music came at around age eleven, when I got my first Walkman: "Wait, so I can have absolute sovereign control over what I hear?  And I can completely tune out everything and everybody around me?  SOLD."

So from the moment of the Big Bang (for me), portability was first priority (for me).  Walkman to Discman introduced manipulability and ease of use as values equal to — and now compatible with — portability.  Discman to Nomad, Nomad to iPod brought mass storage, skip-free listening, and battery life.  And done: we had climbed the mountain.  I am holding in my hand right now a 160 GB iPod Classic that holds the entirety of my music collection.  I can take it anywhere, queue up whatever I want to hear at a moment's notice, and the battery runs for days.  All the boxes were checked.  I only bought The White Album once — on CD.  I've skated for years on that single-medium purchase; there needn't be a Tenth Revolution.

So now, umpteen paragraphs into this, I get to a real cause of outrage, one on which as it happens I am expending A LOT of time and energy, including today:

On September 9, while Tim Cook and U2 were loving it up on stage, Apple quietly, stealthily, sleazily discontinued sales of the iPod Classic.  

The Classic I have is I-dunno-how-many years old.  Two years ago I had to replace the headphone jack: I took it into the Back Bay, and they gave it back to me with the seams busted open — "Used to be you could snap these open," the repair specialist told me, "but Apple fuses them together now, and you have to brutalize the device to get it apart.  We clamped it shut as best we could."  My iPod looks like there's music physically bursting out of it.  It's dinged up, the screen scratched all to hell.  It looks just like something I might have carried in my pocket everywhere I've gone for years — with my keys, with pocket change, with stray Legos — because it is.

Well, crap, I thought, when I caught word that Apple was yanking the iPod Classic.  I need to get another one of these.  So I went on the Net to order one.  Turns out I was on the back end of a get-'em-while-you-can buying frenzy.  After an extended period of panic I did find one to buy.  Paid through the nose for it, but now I have an IN CASE OF EMERGENCY, BREAK GLASS backup iPod Classic.

Last week, over wings, a great friend of mine who works for Bose told me that I'm one of a handful of people in the world who cares about the iPod Classic and its optimization of portability, manipulability, mass storage, and battery life.  Predictably, he started talking to me about Spotify.  And then, grabbing my arm, he started ranting at me, like the Ancient Mariner, about the Next Big Thing: Deezer, the French Spotify-like company that recently partnered with Bose.  Same story — you can listen to whatever you want whenever you want, so long as you have an Internet connection, and whether or not you ever bought a copy of it ten years ago.  "So who needs storage?" he declared.  You frickin' dinosaur, he intimated.  I wiped buffalo sauce off my arm and turned away.

Spotify, Deezer, etc. don't answer my what-ifs.  What if you don't have an Internet connection?  What if you don't have an unlimited data plan?  What if I don't want to share my phone's memory and battery life with my music player's?  Might be this makes me into something of a limited-scope survivalist.  No, I don't store a hundred jugs of water in my basement.  But I need to have at least two iPods, so that when the civil order collapses, the cell towers go down, the Internet goes offline, I can grab a gas-powered generator and wait out the riots listening to The Velvet Underground and Nico.

This is going to come out curmudgeony, but I should note, too, that my iPod, my iTunes Library isn't just a pile of music.  It's a compilation of triggers that allow me to access about a hundred thousand iterations of self.  I want those selves contained and identifiable, because they're mine.  I don't want to have to dip into some massive, fully-licensed hive mind all day every day and extract shards of me from it.


I thank God Apple made the iPod Classic.  I thank God that I rolled out of the cave, Indiana Jones-style, with a second one in my hand before the door closed forever.  But out there in the corner of my consciousness there is this persistent anxiety: What ho, Phutatorius!  All seems well for now, but WHAT IF THEY BOTH BREAK?

Sunday, June 26, 2011

And My Adopted NHL Team Is . . .

PHUTATORIUS
[wait for it]

[wait for it]

now click the "More..." button for the reveal . . .
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. . . the New Winnipeg Jets.

This had to happen, for a number of reasons. To this point, I never felt any compulsion to sign on as a fan of any particular hockey team. Obviously, there is no Cleveland-based team at hockey's top level. It might be said as well, at least arguably, that there is no Cleveland-based team at the top level of any sport, but hockey is distinctive in the respect that there is not actually a team in the NHL that plays its home games in Cleveland.

And so, lacking any family rooting tradition growing up, I wrote off professional hockey. I can't claim any memories of my father listening to hockey games on the radio in the garage, or in the car as we sat in the shopping mall parking lot waiting for my mother to get her fill of J.G. Hook, Evan Picone and other department-store designers. But I feel now a compelling need to pick a hockey team — and pick one fast — because over the last couple weeks I caught myself, once or twice, pulling for the Boston Bruins. And this gravely concerned me.

I've lived in Boston for some thirteen years now, and I wear my disdain — no, let's run with it: my abhorrence — of all Boston sports teams as something of a badge of honor. The '99 Indians playoff losses at Fenway (which I attended) got me started, Manny Ramirez's November 2000 departure overshadowed in my mind the constitutional crisis brought on by the deadlocked Presidential elections, and as much as I supported the Sox in their 2004 bid for the World Series championship, the unspeakable events of November 2007 left me about as embittered and resentful as any Bay State resident can be toward his neighbors. The Celtics recently thwarted the Cavs, the Patriots are the Patriots (and yet somehow the least offensive to me of the Hub's three big-time, non Versus-channel sports franchises), and I've heard enough from Boston fans — on sports talk radio, in Fenway, Gillette, and the Gahden — to want them to know no fan experience other than those associated with defeat, degradation, and demoralization. And the worst thing about it is, of course, that these days the Boston teams do nothing but win championships.

All that said, I have to say I got caught up in the Bs' Stanley Cup run. It helped that the Canucks played like a bunch of thugs, but even so, there remains the fact that the 2010-2011 Bruins were an exceedingly likable team.

I don't like feeling this way. I don't like it at all. And I think I've been vulnerable to suggestion here, and to the undue influence of my the local subbacultcha as well, precisely because as far as hockey goes, I have no overriding loyalty to another team.

Um, let's fix this now. And to do that, let's start with first principles: the default rule in sports fandom is to pick the team that sits geographically closest to your hometown. That won't happen here. The very suggestion that I might support a team from Pittsburgh, wearing black and yellow, sets my stomach abroil and my guts churning. Next closest is Detroit, but there are lines I do not cross, and the Ohio-Michigan border is one of them. Consider, too, that both teams have been historically, as well as recently, successful. Selecting either of them doesn't feel right to a Cleveland fan. It seems too cheap. Too easy. The Blue Jackets might be an option, but to tell the truth, I flat forgot about them until I went back to proofread this paragraph. That's not a good sign.

I suppose the fallback rule, when strict application of the Hometown Rule would sicken you, is to adopt the team that resides in the town you live in now. And that brings us back to D'oh! The whole point of this project is to resist the siren song of the Boston Bruins. No, I will not be governed by rules here. I've had the Indians, Browns, and Cavaliers inflicted upon me. Over this I had no control. In this single instance, I arrogate to myself the right to choose a sports team. And there's nothing for this Cleveland fan not to like about the New Winnipeg Jets.

First, you've got to love a hockey team that moves to Canada from Atlanta. This is a sign of the natural order of things reasserting itself.

Second, some time ago Winnipeg lost its first set of Jets. Now a new team arrives in town, and resisting the impulse to "start afresh" with a new team name and jazzy branding — like Washington did with its "Nationals": seriously, why not just name your team the Washington Adjectives? — the city of Winnipeg goes right back to its Jets of old. Where have we seen this scenario played out before? Let this be a sign unto you, fellow Clevelanders.

Third, what I do know about hockey derives almost entirely from the three years I spent in college playing EA Sports' NHL Hockey series on the Sega Genesis. The 1993 NHLPA version of the game was to my mind the strongest, and the most bitterly contested in the dorms. For reasons I don't really remember, the team I played with — and mastered — was the Winnipeg Jets. Yeah, I flirted with Lemieux's Penguins, but it made me feel dirty (see above). I played with Washington ("Shingtonwa," we called them) and the Rangers, too. I saw my share of Rangers games when I lived in New York, and if I can be fairly said to have an All-Time Favorite Actual Hockey Player, it's Mark Messier.

But more important to me and my daily life as a college student was my All-Time Favorite Sega Hockey Player, who wasn't Messier (although he was a beast). My ATFSHP was Old #6, defenseman for the Winnipeg Jets, PHILIP FRANCIS HOUSLEY. Phil Housley was a frickin' awesome Sega hockey player, and I daresay he and I had a kind of chemistry that made him an even better player, even more unstoppable in defense and in the attacking zone, when my two thumbs were on the controller. I can't say for sure this was true, but there was just something there. And I gather from the Internets that Housley also existed and flourished in real life. Go figure.

Fourth, I'm conditioned to root for the underdog. Now gentle citizens of Winnipeg, please forgive me if, lacking anything close to full knowledge of your city's resources and the team roster you've inherited from the erstwhile Atlanta Thrashers, I should peg your new hockey franchise as a small-market underdog. You are located in frigid, sparsely populated Manitoba, after all. You're north of North Dakota. And that means something to me.

Fifth, and finally, I have a good friend from Winnipeg. He's told me what the Jets meant to his hometown and what it means to have them back. And he lives in Boston, so we'll have one another's back when our newly beloved team skates into the Garden next year.

Yes, this just feels right.

Thursday, May 19, 2011

The Boston Herald Pitches a Fit

The Boston Herald reports that "Outrage Builds [at the Boston Herald] over Obama Snub of . . ."

— wait for it —

". . . the Herald." Howie Carr likens the snub, described elsewhere by the Herald as a "freezing out" of "full access" to cover the President's visit to Boston, to inclusion on President Nixon's "Enemies List."

And one sees straightaway why the Obama Administration is disinclined to extend to the Herald the full array of access privileges available to serious journalists.
More...Let's be clear: this isn't a First Amendment issue. Denying "full access" to the President isn't censorship, even if, as it appears, the decision was made at least in part because Obama's aides think the Herald has not treated him "fairly." There is a press pool. It's crowded, there is limited space, and it sits amply within the Administration's discretion to decide how to allocate that space.

Is a review of a paper's previous coverage for "fairness" an appropriate consideration in allocating that space? To be sure, the Administration's decision sounds punitive. White House spokesman Matt Lehrich explained his thinking as follows:

I tend to consider the degree to which papers have demonstrated to covering the White House regularly and fairly in determining local pool reporters. . . . I think (the Romney op-ed) raises a fair question about whether the paper is unbiased in its coverage of the president’s visits.
Now I don't think anyone can deny that Lehrich made a poor tactical decision writing all this down in an email message for the Herald to reprint. And I'll admit, too, that claims of bias are tiresome and we all should be "troubled" whenever a government figure takes action against a reporter based on what he writes. But let's pause to consider what that action was: "freezing out" of "full access" to the President's visit to the Hub. Not exactly jack-booted thugs kicking down a door and shooting up the Herald's printing press. And with a reporter from Human Events currently holding a chair in the White House briefing room, I'm pretty comfortable that the White House isn't excluding contrary viewpoints.

But that said, a decision to deny the Herald "full access" is entirely consistent with an important theme that the President himself continues to articulate: in recent years our politics have deteriorated to the point where they severely inhibit our ability even to identify seriously problems, much less work together to solve them. And the President is not wrong to assign to the media a share of the responsibility for the deterioration of our politics.

One look at Carr's gagged-up slurry of petulant populism (yeah, Howie: it doesn't take a genius to write this way) — which of course wouldn't have been complete without references to the President as "Hussein" and descriptions of Globe reporters as "spayed" and "neutered" — makes it quite clear that the Administration wasn't wrong to conclude that maybe someone other than the Herald deserved one of the coveted "full access" slots.

Carr writes:

The Herald is for people who didn’t move here from New York to look down their noses at everyone who has calluses on their hands, who aren’t consumed by guilt about the trust funds that support them in their leisure.
Yes, fine, Howie. But I think the President's point is that the folks with calluses on their hands are owed something better than what you and your colleagues give them every day. You can have your tantrums, Boston Herald, and you can forgo actual news to devote no fewer than 5 stories and columns in today's paper to your trumped-up incident of press martyrdom and "we speak truth to power" meme. Nobody's going to shut down your press. But we don't have to take you so seriously as to put you on the White House bus. And we don't, either, need to accept your strained Nixon analogies, which would make you who? Woodward and Bernstein?

Please.

Friday, December 10, 2010

WikiLeaks, Subprime Lenders, & "Government Pressure"

Anyone following the WikiLeaks story knows that the website itself has been as much on the run as its principals — and now, with Assange in the custody of the British authorities awaiting extradition to Sweden, perhaps even more so. Amazon recently gave WikiLeaks.org the boot, the site recently lost its .org domain name, and if you're interested in supporting the WikiLeaks organization, PayPal, MasterCard, and Visa can't help you.

These results have generally been attributed to "pressure" from the United States government, and depending on where you sit politically, your reason to cry foul might range from the thoughtful ("This sort of extrajudicial pressure is undemocratic.") to, you know, hers ("C'mon, Obama: deploy the snipers, already.").
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Let's put aside for the moment protests from the State Department and DOJ that they have not, in fact, been working the phones with the credit card companies.

If you are a cardholder calling about abusive finance charges, press 1. If you are Hillary Clinton, and you're calling about WikiLeaks, press 2 . . .

Even taking State and Justice at their word, the U.S. government has — ahem — other instrumentalities that can do this sort of behind-the-scenes work. And for that matter, the government can apply pressure on WikiLeaks's corporate contractors without contacting them directly. The nationally broadcast rumblings from a certain U.S. Senator against the New York Times, word from DOJ that it is continues to consider its criminal enforcement options against Assange — this sort of thing raises red flags for the legal and PR departments of large corporate institutions. Talk of government action against WikiLeaks and, more importantly, another large corporate institution that has had dealings with WikiLeaks, might certainly be enough to give Amazon pause to think about how important its hosting relationship with WikiLeaks really is.

But of course, I'm speculating. And herein lies the problem in judging the actions taken by the government to date: we really don't know what the government has been up to, and we don't know what role it's played in prompting the Amazon takedown and the credit card kissoffs. It seems plausible, by which I mean "obvious," that these results are attributable at least in part to direct or indirect government (as opposed to public) pressure. But absent any of the deets, we're stuck with that exceedingly vague word: pressure.

When I hear complaints about unelaborated "government pressure," I'm put in mind of the 2008 election, when the American right, put to the task of trying to explain how the financial crisis was entirely the fault of the American left, complained that the government "pressured" banks to make the lousy subprime loans that, in the end, precipitated the destruction of our economy. (Here's a post-election rendition of that argument, from a predictable source.) And as a right-minded Obama supporter, I raised the appropriate objections, one of which focused on the term "pressure," which the argument's adherents seemed to have left deliberately vague. What does "pressure" mean? Something short of force, presumably, but other than that, no details. Can it really be said that a financial institution, in the modern U.S. of A., will ever succumb to "government pressure" and take on business it doesn't want to have? In the end, of course, it was the banks that issued the loans, and just as emphasis on the alleged government pressure did the rhetorical work of lifting agency from the banks, we risk letting Amazon et al. off the hook here in the same way. And we shouldn't, necessarily.

More importantly, government exerts pressure on corporations in all sorts of ways, some of which are more benign and democratic than others. Perhaps President Obama works the bully pulpit to prompt improved remedial action from BP, or the aforementioned Senator wanders into a cable news studio and calls for federal investigation of the Times. We might be inclined to critique either of these undertakings, based on our feelings about the speakers and corporations involved. But these surely do not constitute the sort of government pressure that undermines our democracy. After all, public officials have always been entitled to leverage their power over corporations through speech, and this is a tradition we should continue, given that corporations are, we're told, very much entitled to do the converse.

Contrast a species of pressure that I think would indeed be sorely troubling, as a democratic matter: imagine that DOJ did contact Amazon and threaten to charge its principals under the godawfully vague espionage laws still on the books, if it didn't give WikiLeaks.org the boot. In theory DOJ could have brandished similar charges at the payment processors, on an aiding and abetting theory. And if/when WikiLeaks ever finds itself listed as a designated terror organization, PayPal and card companies could be charged for providing it with "material support." A considerably greater pressure would be brought to bear under these circumstances, and at its root is the monopoly on force. For that matter, if the government threatened or executed cyberattacks on the target companies, then I would agree that the government pressure would be inappropriately applied and of grave concern to our constitutional, democratic system.

The thing is, we just don't know what's gone on outside of the public view. We don't know what sort of pressure the government might have applied to Amazon, PayPal, and the card companies, and so we're stuck. Hm. If only there were somebody out there — some sort of organization — that could get hold of the details and pass them along to the public . . .

Friday, May 14, 2010

FO News Roundup: May 14, 2010

Been a while, but we're alive and well. Well, I am.

Saturday, May 08, 2010

On Unintended Consequences and Happy Meals

PHUTATORIUS
Supervisors in Santa Clara County, California participated in America's great experiment of "laboratory federalism" last week by enacting a law that prohibits restaurants from providing toys with children's meals, unless the accompanying food meets certain nutritional standards.

Wow.
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The regulation, which for the sake of shorthand we'll call "the Unhappy Meal Law," only applies in areas where the county supervisors are the sovereign local authority — i.e., only in those pockets of land in Santa Clara County that are not incorporated into a city or town (which of course can pass their own laws). Thus, rather than entirely beat back the hordes of junk plastic movie tie-in action figures past the county lines, the law only makes Happy Meal toys a little less ubiquitous in fast food restaurants in the county. This will, of course, cause great confusion and consternation among Bay Area five-year-olds, who absent access to a GPS device, a county map, and an understanding of California's principles of local government and jurisdiction, won't know on a given day whether, where, or why they won't be getting a Mermaid Barbie doll with their cheeseburgers. And it's just this sort of random arrangement of cause and consequence that, according to behavioral psychologists, leads to "learned helplessness" and depression.

But hey — at least our kids won't be obese. At least that's the thinking, as county supervisors, applying the "Joe Camel principle," have concluded that Happy Meal toys draw children to fast-food restaurants, where they become tracked into the habit of eating unhealthy food.

Needless to say, I have some thoughts on this subject. Four fingers of thoughts, in fact:

☞ McDonald's introduced the Happy Meal in 1979. I remember when this happened. My father took me to McDonald's every Saturday. It was one of my favorite things in the whole world. Then one day I got to McDonald's, I read the menu, and I realized that not only was I going to get a burger and fries for lunch, but I was going to get a toy, too. And McDonald's became even more awesome.

Because I went to McDonald's, as a child, both before and after McDonald's launched the Happy Meal, I can count myself as something of an authority on the drawing effect of Happy Meal toys. As I recall my state of mind in the Pre-Happy Meal Era, I always frickin' wanted to go to McDonald's for lunch. And of course, in the Happy Meal Era, I always frickin' wanted to go to McDonald's for lunch. Check my math, Mithridates, but as I calculate this, the net drawing effect of Happy Meal toys = 0. Zero.

☞ Whether or not I actually did go to McDonald's for lunch as a child was a question that turned not so much on what I wanted to do, but on what my parents wanted to do. And of course, now that I'm fully grown with children of my own, I'm the one who gets to make the call on whether my children get to go to McDonald's. So now that we've dispensed with the notion that Happy Meal toys make children marginally and meaningfully more interested in McDonald's, it seems worthwhile to cover the effect of the toys on parents' decisions.

OH MY GOD LET'S PLEASE PLEASE PLEASE GET RID OF THE HAPPY MEAL TOYS SO I CAN EAT MORE BIG MACS WITHOUT JUNKING UP MY HOUSE!!!!

[deep breath]

Yes, um, where were we? Oh, right: I always frickin' want to go to McDonald's for lunch. But if I'm with the kids, then they're of course going to come along, and that means I'm going to bring home more godawful nine-cent hunks of plastic that will, without fail, find their way into my bed, into my bathtub, under foot as I walk through the dark into the bathroom, between couch cushions for me to sit on. So yes, if anything, the Happy Meal toys actually reduce my interest in taking the kids to McDonald's. Seriously.

☞ Anyone who has actually given a child a Happy Meal knows that the accompanying toy actually reduces the amount of food the child will ingest. The logic is simple: if you give a kid a big pile of greasy, delicious junk food, he'll eat it. If you give the kid the same big pile of greasy, delicious junk food and a toy, he'll find himself torn between eating the junk food and playing with the toy. If you withhold the toy until the kid is done with his lunch, he will in most cases prematurely declare the lunch finished and actually allow you to throw out his McNuggets and fries so that he can get a crack at the toy.

I've seen this dynamic at work: just today I took The Boy to McDonald's. No toy, I said, until we got into the car. The Boy ate one McNugget and insisted that lunch was over. I told him that we were going to sit for a few more minutes ("for our digestion") before leaving. If he wanted to have some more lunch during that time, he was welcome to do so. The Boy ate two more McNuggets and a fistful of fries. Q.E. freakin' D.

☞ Finally, consider how McDonald's might respond to the Unhappy Meal law. If McDonald's accepts, as Santa Clara County does (and I don't), that Happy Meal toys make their restaurant more attractive to children, and therefore families, then they'll have to find some other way to market to children. Deprived of the ability to offer collateral inducements, they'll have to beef up (pun intended) their food offerings. And since it's axiomatic that food is more appealing when it tastes better, and that the worse food is for you, the better it tastes — well, McDonald's now has an incentive to make its food even greasy, junkier, and more delicious. And/or cheaper.

I could talk more about how a county restriction means city kids get toys and country kids don't, how the Unhappy Meal law seems entirely predicated on the suggestion that parents don't know how to say no to their children, and so on. But it ought to be enough to note that either the Santa Clara County Board of Supervisors don't have kids and never were kids, or they just didn't think this one through.

Tuesday, May 04, 2010

Lieberman's Absurd Miranda Workaround

PHUTATORIUS
Here we go again. Another terror arrest, another round of trumped-up hand-wringing from the right about having to "read rights to terrorists." Once again, it seems this "rights = soft on terror" concern is much more theoretical than practical, because the Times Square Rube Goldberg Smoking Car Bomber is talking.

Never mind all that, says Joe Lieberman: we need to strip homegrown terrorists of their citizenship. If we can do that, then we don't have to worry about all these rights, and we can do anything we want to these jerks:
More...
“I’m now putting together legislation to amend that to [specify that] any individual American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights,” Lieberman said Tuesday.

This would be a clever answer to the Miranda "problem," if indeed (1) there were a problem, (2) this approach resolved the problem, and (3) it were clever. But Lieberman's whacked-out law doesn't meet any of these three conditions. Here's why:

We don't always know if a person is innocent or guilty.

The rights and protections we extend to criminal suspects and defendants are designed, among other reasons, to ensure that the state doesn't manufacture guilt. Folks in America don't disappear into black holes of detention — without access to attorneys, under conditions that allow law enforcement to extract forced confessions — not because we think criminals deserve kid-glove treatment, but because it would really suck to have that happen to you, if you weren't a criminal.

So let's imagine life in Joe Lieberman's World. You're sitting on a plane, on the tarmac at JFK. You're looking forward to your vacation. Tray tables are up, you've switched off your cell phone, and suddenly federal agents storm into coach and carry you off. They're thinking you tried to blow up a car in Times Square. Well, there's obviously some mistake; a quick call to your attorney will help clear all this up, except someone just declared that you're "involved in a foreign terrorist organization." No lawyer, then. You're back out on the tarmac now, but it's a military transport plane, and you're heading to Bagram, and not Barcelona.

How could this have happened? you ask. Well, it's frighteningly simple. You've been accused of terrorism. Terrorism is an awful, awful crime — so awful, in fact, that just being accused of it is enough to see you stripped you of your citizenship and all the rights that flow from that. Even if the rights bear importantly on the question whether you're a terrorist at all.

Ick. Nice one, Joe.

Of course, that's not the case here at all. Faisal Shahzad has freely confessed his guilt already. We know he tried to kill dozens, if not hundreds of innocent people, over some unspecified grievance that may have something to do with frickin' South Park. So yes, even this purported bleeding-heart liberal correspondent actually would love to see this guy beaten, waterboarded, and humiliated in public (Times Square seems an appropriate forum). And what the heck, when we're done with him, let's strip the guy of his American citizenship. I'm all for that. Screw Faisal Shahzad.

But do we have to strip folks of their citizenship before we know whether they're guilty of terrorism — for the express purpose of facilitating a finding that they're guilty of terrorism? That's the worst kind of legal bootstrapping. It's beneath America. Hell, it's even beneath Glenn Beck. It's just not beneath Senator Lieberman.

Joe, you, too, have the right to remain silent, and we well and truly wish you'd exercise that right a little more often.

Friday, March 26, 2010

Bush Wipes Hand on Clinton

MITHRIDATES
Funny. You would think a good Republican would want to wipe his hand on a Haitian after touching the man whose lending policies caused the financial crisis and whose failure to pursue Al Qaeda led to 9/11, not the other way around.

Friday, March 19, 2010

Tiger's Texts: A Lawyer's Take

PHUTATORIUS
If anyone wondered why "adult film actress" and reputed lover of Tiger Woods Joslyn James felt the need to go out and retain a big-time lawyer, the picture is getting clearer by the day. Here's my "lawyer's take" on what's going on:

Yeah, sure, Joslyn James was going to find herself in the glare of the public eye, and a lawyer can help manage the publicity and keep the press at bay (i.e., "That one's lawyered up, and Allred is something fierce. Maybe I won't try to break in Joslyn James's house and get pictures of her in the shower.").

But James isn't just in a defensive posture. Consider that she invited press to listen along beside her as she took in Tiger's self-serving soliloquy back on February 19. Consider, too, that when Tiger was finished, Ms. James took the podium and delivered her own tearful statement, demanding a direct apology from Woods. An awkward angle to try to work, this "I thought I was the only Other Woman" bit. But the statement was thick with shots across the bow of Woods's legal team: little tidbits of information that might add up to lawsuit against Tiger. She loves Tiger, and he made her promises. She had pregnancies that ended in miscarriage and abortion. She gave up her career at his request. Yeah, Gloria and Joslyn are laying the groundwork for threatening all sorts of legal claims. Lousy claims, but claims nonetheless, and the point isn't whether you can win or lose on these lousy claims; the point is whether you can get Tiger to pay you some money to make sure they don't end up in court to begin with. What Tiger will pay to settle these claims has very little to do with the value of the claims themselves. He's confronting a potential lawsuit, brought by his mistress, which will extend this scandal for another couple years well past the endpoint he'd hope to establish for it (with his apology speech) and vivisect his sordid personal life, laying it open for the world to see in public legal proceedings.

Which brings us now to the text messages that Joslyn James recently released to the press.
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This is hardball. Joslyn James earlier said that she has some 11,000 text messages from Tiger Woods. She released a small subset — only around 100 — of those messages. Release of the messages suggests what should have been obvious following Ms. James' delivery of her counterstatement on February 18: that Allred and Woods's attorneys are negotiating a settlement that will keep James from suing Woods and posting any more damaging information to the media. One of the following is true: (1) they're not close to a deal, or (2) they've reached a deal, and James released the texts anyway. Both scenarios are intriguing.

Scenario (1) suggests that Joslyn James has information far more damaging than what she released yesterday — and the texts she released yesterday were pretty darn damaging, describing Woods' interest in sadistic sex acts. No way no how does Gloria Allred let Joslyn James disclose the most lurid info she has. If this were the worst of it, Woods's attorneys would have no reason to bargain with her, as James couldn't hurt Woods any more than she has to date. We therefore have to assume that the ~100 texts that James disclosed yesterday were carefully selected to generate a modest amount of media buzz (thereby getting her back in the news) but not so much as to leave Allred without leverage going forward. We have to assume that there is something much worse in the rest of the 11,000 texts (or, theoretically, in some other explosive format: video?).

Moreover, the timing of the release was calculated: Tiger announced on Tuesday that he would return from his golf hiatus to play in the Masters next month. He's starting to get back into business as usual, and he's back in the news, too. James counters with the release of the text, which destroys any positive PR momentum he has.

Under Possibility (2), Woods and James have already reached agreement, and James has been already received a lump-sum payment of hush money. There is presumably an enforceable contract here, negotiated by attorneys: Woods pays James an unspecified amount (confidential, of course, per the terms of the contract), and James hands over any documentation of the affair for Woods to destroy. But of course, James could always surreptitiously keep a copy of her materials, to publicize after she cashes her check. This would be a breach of the contract, and Woods could sue her, but would he? If he did, well, there's that very public lawsuit again, and on top of all the other nastiness that would come out about the affair, there would be this new distasteful overlay: Tiger wrote a big check to keep this girl quiet, and now he's suing her over it. In theory, then, James could get paid both by Woods (to keep quiet) and by the press (to spill her secrets). Woods's lawyers, if they have any sense, would therefore have every reason to structure the deal to require payments over time — perhaps an annuity — so that they could preserve some leverage over James going forward, other than resort to the courts. We should assume that Woods's lawyers have quite a lot of sense, such that Scenario (2) is therefore the much less likely of the two here.

All of the above analysis is predicated on the assumption — and I think this is right — that James stands to gain more from Tiger if she withholds her information than she can get from anyone in the press if she discloses it all. The value of a "hot news" exclusive, in this day and age, isn't really all that. Once the texts are out, anyone can pick them up and run with them. It makes sense that Tiger would pay millions to James to keep her quiet; it makes much less sense that a media organization would pay a comparable amount to break this story five minutes before everybody else.

And of course another assumption is in play: that James isn't just an irrational "woman scorned" figure here, whose interest is simply to throw everything she has at Tiger, to hurt him as badly as she can, and damn the settlement offers. This seems to me unlikely. You don't hire Gloria Allred unless you want to work an angle, and Gloria Allred doesn't continue to represent you if you're delivering all your best stuff to the press in anger. And for that matter: ELEVEN THOUSAND TEXTS? James was clearly archiving these messages, either as keepsakes because she loved Tiger so much or rather to save for a rainy day — or a day of opportunity. Hm.