Hal O'Brien

Linda Greenhouse of the New York Times has a blog post reporting a commencement speech to Harvard by former Justice David Souter.

Great stuff all around. I particularly like the echo of my professor Leo Flynn in this passage:

The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” (Souter) suggested:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

The full text of Souter's speech is available here.

There's the usual grinding of wheels in the comments about "activism" vs "originalism." Here's what I submitted as a comment:

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The existential problem of the originalist position may be put this way:

What if the original intent of the Founders was that the Constitution not be enforced in light of original intent?

Exhibit A in that surmise would be the Ninth Amendment, which reads in full, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, to the complaint of the literalists that, "Show me where in the Constitution a right to such-and-such exists," the Founders, through the Ninth Amendment, say, "It doesn't matter." So concerned were the Founders about the possibility the literalists might prevail that many states refused to initially consider the Bill of Rights until the Ninth Amendment was added, precisely because they didn't want liberty constrained by black letter text..

That sets up the basic conflict: If you're a literalist, you have to take the Ninth Amendment into account; but the Ninth Amendment repudiates literalism.

This is probably why Robert Bork famously tried to sweep the Ninth Amendment under the rug as a, "Rorschach test." The literalists and originalists find the only way to reconcile their views on the original text of the Constitution is to ignore the original text of the Constitution.

Accordingly, Antonin Scalia is probably the most "activist" voice in the judiciary today. And how ironic is that?

UPDATED TO ADD: It appears the Times axed the comments they already had in hand, and now simply say, "Comments are not being accepted for this post." I've been noticing how whether they accept comments on any given piece has appeared to be random. This is the first time I've noticed them both turning them off and removing the existing ones, though.

Why is it the retailers like Amazon and B&N coming out with Kindles and Nooks? Why isn't it the publishers?

As I understand it, the standard splits in publishing for the longest time have been 50% for the retailer, 40% for the publisher, 10% for the writer (of which 10% goes to their agent, so really 9% for the writer, 1% for the agent).

If you're a retailer who brings out an e-reader, that means you still have to deal with publishers, so the percentages shouldn't really change -- even if Amazon then charges only USD$9.99 for a "hardback" that's $24.99 in a cloth edition.

But if you're a publisher who brings out an e-reader, with a Kindle/iTunes-like "store" of your titles, that means you can cut the retailer out entirely. 90% of $9.99 turns out to still be less than 40% of $24.99 -- but not by much, it gives you lock-in over time, and it beats 40% of $9.99 all hollow.

Or, the nuclear option in the other direction: What if Amazon and B&N are thinking about becoming publishers themselves (and not just of public domain works a la Dover the way B&N has done for a while now)?

It seems to me one level of this ecosystem is about to become superfluous. Who? Am I missing something?

Edited to add: Urban myths don't constitute an explanation. Bertelsmann's sales alone annualize out at just shy of $21 billion, larger than either Amazon or B&N. Book sales have been holding steady since 2007 according not only to Bertelsmann's, Amazon's, and B&N's annual reports (and inside sources in publishing), but according to the US Census Bureau, who show only a 1.5% drop 2007-01 through 2009-10, annualized out. The broader economy has been having trouble during that time, as you may have heard. Here's Amazon's 2008 annual report; here's Barnes & Noble's. Unsurprisingly, the majority of their revenue does come from book sales.

Have some used book stores closed over that time? Yes. Have a great many dealers, including new ones, gone to ABEBooks, Alibris, etc. over the same time? Yes, again. While bricks and mortar stores may have decreased in number, I would be completely unsurprised if the total number of book dealers has increased. (If reputable numbers can be found, I'd welcome them.)

James Fallows of The Atlantic has been kind enough to quote me at length in his blog.

Strangely, I agree with this Hal guy. :)

Seriously, for all that I sent it in, I appreciate the vote of confidence shown by being quoted at such length by someone I respect so much. Thanks, Jim.

"All of this has happened before, and all of it will happen again."

P.T. Barnum would be so proud. His version was, "There’s a sucker born every minute."

James Warren has a piece in The Atlantic that raises the usual complaint by old-line journos about blogs:

"As I write, the headline on the lead Huffington Post story is about the Bush administration “Burrowing Political Appointees into Career Civil Service Positions.” Upon closer inspection, this Huffington Post Story turned out to be a truncated version of what was in fact a quite interesting Washington Post story. (And upon even closer inspection, the actual story made clear that this had been common practice among all administrations in their final days and cited about 50 examples of the Bill Clinton administration doing the same thing.)

The cooption of that Post story serves as a clear reminder of the extent to which newspapers serve as daily tip sheets for other media outlets."

So, what's the problem here?

The problem is, the newspapers themselves routinely crib from each other, and there's far less "original" journalism than one might think from the whingewave from older outlets.

C.J. Koch called them "matchers" in The Year of Living Dangerously, drawn directly from his experiences as a reporter for the Australian Broadcasting Commission in the 1960s. Tim Crouse called it "pack journalism," in The Boys on the Bus.

I realize I'm laying myself open to my own traditional, "If Johnny was to jump off the Empire State Building..." critique. But writing that one is shocked, shocked, I say! that bloggers feed off the press when the press itself has been feeding off each other for decades is perhaps the most lame of all possible criticisms of blogging as a threat to journalism.

Or to riff on an earlier post riffing on Clay Shirky: Have you ever seen the news story where you're told there're a bunch of reporters at an event, but not much is happening just then, so they all end up interviewing each other? I've seen that story. A lot.

From a blog run by The Hollywood Reporter, some preliminary numbers:

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"OCTOBER 30, 2008
Obama ad boosts network ratings

UPDATED: If Barack Obama fails to win the election, perhaps the networks should hire him to entertain viewers on Wednesday nights.

On average, Obama's 30-minute primetime infomercial managed to outperform the usual broadcast programming in the 8 p.m. time period.

The Obama special was seen by 26.3 million viewers across broadcasters CBS, NBC and Fox, according to preliminary Nielsen ratings.

Now the tricky question is: What do you compare Obama's ad to? After all, such a national pre-election special hasn’t been attempted in 16 years.

The entertainment programming that usually runs in the slot on those three networks has averaged a cumulative 23.1 million viewers each week since the start of the season -- 12% lower than the Obama ad total. Put another way, the time period averages about 7.7 million viewers and a 2.4 adults 18-49 rating per network. In the preliminary ratings, the ad pulled an average of 9.2 million viewers and a 2.7 average rating per network -- boosting the advertiser-friendly adult demo by 13%.

But the usual shows are comedies and dramas. Can one realistically compare "Knight Rider" to a political ad? That would normally seem unfair -- to the politician. Obama improved NBC's rating by 43% and CBS by 10% compared with last week. And keep in mind Obama was competing against himself.

The lowest-rated of the three presidential debates received a 52.4 million viewers -- but that was carried by more networks and was, after all, a debate.

The Ross Perot specials in 1992 averaged 11.6 million viewers, but those were 15 separate specials that ran on different nights.

NBC was the most-viewed and highest-rated network for its presentation of Obama's ad, pulling 9.8 million viewers and a 3.0 rating. CBS had 8.6 million (2.3) and Fox had 7.9 million (2.8).

And keep in mind, the Obama ad aired on more networks than just those three broadcasters. MSNBC, Univision, BET and TV One also carried the ad. Nielsen will release a total viewership number that includes other telecasts later today. The measurement company has released a cume metered market household rating for the ad -- 21.7.

As for ABC's underdog "Pushing Daisies," airing on the only major broadcaster not to carry the ad, the counterprogramming still came in fourth place in the adults 18-49 demo. "Daisies" (6.8 million, 2.2) was up by 16% from last week, which isn't as big of a boost as the network had likely hoped for."

Yes, I know it sounds like a band, but it ain't.

Below is an embedded video of Shirky giving this (imho) important talk. For those video averse, here's an approximate transcript.

"I was being interviewed by a TV producer to see whether I should be on their show, and she asked me, "What are you seeing out there that's interesting?"

I started telling her about the Wikipedia article on Pluto...

So I tell her all this stuff, and I think, "Okay, we're going to have a conversation about authority or social construction or whatever." That wasn't her question. She heard this story and she shook her head and said, "Where do people find the time?" That was her question. And I just kind of snapped. And I said, "No one who works in TV gets to ask that question. You know where the time comes from. It comes from the cognitive surplus you've been masking for 50 years."

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BONUS: Shirky at TED, talking about "Institutions vs. collaboration."

"John Sidney McCain III is known among many of his Vietnam flight buddies as "Ace" McCain. This title has not been bestowed upon McCain because he destroyed five enemy aircraft. On the contrary: It was five on our side -- in fact, five of his own."

Whole story here, crash by crash, from an article written in 2000.

Along these lines, I'd be remiss in not mentioning this version, by an organization calling itself Vietnam Veterans Against John McCain.

Aw, heck, if I'm going that far... read here in Slate from 1999 about how McCain used his Senate Commerce Committee chairmanship to keep Ultimate Fighting off the air for a number of years. Or here, also in Slate, from 1998. "The media want him to be president. It's a bad idea."

Dave Winer points to this piece by Reuters, which manages, appallingly, to set up a false dichotomy in the very title:

"Storytelling, not journalism, spurs most blogs"

Look, Mr. MacMillan -- Journalism is storytelling. Mind you, it's a very specific kind of storytelling, hence the title of this post. A different way of putting this is when I point out, "There's a reason why the Journalism School of most universities gets peeled off the English Dept., and not the History Dept."

Consider the very base unit, the atom, of journalism. It is -- surprise! -- the "story".

Because journalism is told in stories, that means those stories generally follow narrative structure. There is a protagonist, an antagonist, conflict, and a story arc. There isn't always a resolution, because those darned deadlines get in the way. Which means journalism stories are also generally serials.

It is precisely for this reason that "good news" is generally underreported. Why? Well, the Wall Street Journal had a feature story (there we go again) about a decade ago, and the response of most editors ran along the lines of, "We don't report 'good news' because it's boring."

Pause and think about that.

The response wasn't, "We don't report 'good news' because that would be inaccurate." Nor was it, "We don't report 'good news' because it's unimportant."

No, the argument made was, "We don't report 'good news' because it's boring."

From a strictly factual, "unbiased" point-of-view, why would "boringness" -- that is, there is no conflict, so there is no story arc -- why would it matter?

Answer: Because news -- journalism -- is the business of telling stories.

Hell, it says so on the label.

This is why I loved Neal Stephenson's piece, a few years back in Wired, where he suggested there be cameras put in a regular grid -- say, 10km by 10km -- around the planet, and then have a cable channel that did nothing but randomly broadcast footage from those camera at about a minute apiece (I'm summarizing, and missing the fine points, I'm sure). His point was that such a channel would show just how densely concentrated "news" is, and how in the overwhelming majority of places on Earth, to the overwhelming majority of people, "news" doesn't happen.

It's just a serial, like Dickens, or King. Only, you know, non-fiction.

PS: Amusingly, Robert MacMillan, the author of Reuters' piece, has a blog of his own. I guess it's for stories that get spiked. Or he can't stop storytelling. Or something.

So.

So, I was in the break room at work, watching Fox "News" because someone else had the control. In particular, The Big Story, with John Gibson.

So, Gibson's pretending to read viewer letters... And one of them asks, "What would you say if we don't find any weapons of mass destruction in Iraq?"

And his response is, "I'd say: Where are they now?"

Which is the great problem about this particular policy. Having steadfastly maintained, without direct empirical evidence, that such WMD exist... Well, that is going to be what Los Amigos Arbusto say when they don't find any, isn't it? That Hussein somehow secreted them out of the country, just before Justice Prevailed.

Which also means they'll come up with a new country to invade. All in the name of protecting the good ol' USA, you understand. Not that there'll be any evidence the next time, either.

Rinse. Lather. Repeat.