Justice, and the Problem with the Bill of Rights

I am reading about the work of the late William J. Stuntz, a law professor at Harvard, who wrote about the criminal justice system, in The Caging of America (recommended!) and Stuntz looks for the reasons why we arrived at this impasse, finding it, ultimately, in the Constitution, particularly in the Bill of Rights. And I was hard struck by how right he was in what was wrong. The problem, as he sees it, is that the Bill of Rights is about process and procedure, rather than principles. Compare, he says, the French Declaration of the Rights of Man and the Citizen with our Bill of Rights — Bills 4-8 establish our judicial system, and are how we end up with more black men in prison than were slaves in 1850, and more than six million people under “correctional supervision”. Gopnik writes:

Instead of announcing general principles–no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is that justice be done–it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence, and so on. This emphasis, Stuntz think, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice….You can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.

I’d always been uneasy with Constitution-worship, particularly uneasy about the Bill of Rights, and certainly the justice system, but didn’t have the least idea why. This is why.

SOPA/PIPA protest at City Hall

Just back from the SOPA/PIPA protest at City Hall, where Ron Conway, MC Hammer, Elizabeth Stark, Brewster Kahle and Jonathan Nelson were also speaking. Down with SOPA/PIPA!
Photo from xdamman

Notes from Monoculture

I usually put stickies in books I am reading, and then go back and reread the things I marked, and sometimes copy them here. These are notes from Monoculture: How one story is changing everything, by F.S. Michaels.

• “Government is instituted for the common good; for the protections, safety, prosperity and happiness of the people; and not for profit, honor, or private interest of any one man, family, or class of men.” –John Adams, 1776
• p. 65 Re: Medicine and the growth of hospitals. At one time, few people used hospitals voluntarily because of the risk of infection; hospitals were more about charity than medical expertise and most were run by religious orders where nuns, doctors and nurses volunteered their time to care for the sick. You went to the hospital to die, or when you didn’t have family or friends to care for you. If you were sick, you were simply safer at home.
• p. 93. Re: Art. “When you look back on a lifetime and think of what has been given to the world by your presence, your fugitive presence, inevitably you think of your art, whatever it may be, as the gift you have made to the world in acknowledgment of the gift you have been given, which is the life itself.” — Stanley Kunitz
• p. 97. Government cultural policy in the arts came to be based on a Romantic ideal that the arts mattered and deserved public funds because art had a civilizing influence on us and contributed to our humanity. President John F. Kennedy said, “The life of the arts, far from being an interruption, a distraction in the life of a nation, is very close to the center of a nation’s purpose, and is a test of the quality of a nation’s civilization.”
• p. 105. The Monoculture. As the monoculture aligns our experiences and expectations with the economic story, our life together becomes more at risk. Just as biodiversity embodies many forms of life and signals the health of our ecosystems, value diversity embodies many ways of life and signals the health of our social systems. When we lose value diversity, we lose our ability to express ourselves outside of the economic realm. We lose the “languages” we once spoke in distinct parts of our lives — the language of family and relationships, the language of the natural world, of art and spirituality, of health and education, of the public interest and the common good. We learn to substitute an economic language for all of it.
• p. 107. Imagine two circles that overlap a bit. One circle represents your creativity, and the other represents the economic story’s world of markets. The area where the circles overlap represents creativity that is financially successful in the world of markets. The economic story says the circles should overlap as much as possible — that creativity is about producing something someone will buy. In actuality, the circles never completely overlap, and in an economic monoculture, the creativity that exists independently of the market is never considered to be worth pursuing.
• p. 110. In a society grown rigid with ideology, Vaclav Havel said, you come to accept that you live according to that society’s values and assumptions. If you were to refuse to conform, there could be trouble. You could be isolated, alienated, reproached for being idealistic, or scorned for not being a team player. You know what it is you are supposed to do, and you do it, not least to show that you are doing it. You go along to get along, he said, and so you confirm to others that certain things in fact must be done. If you fail to act as you are expected to, others will view your behavior as abnormal, think you arrogant for believing you’re above the rules, or assume you’ve dropped out of society…In truth, Havel said, that story is not natural; there is an enormous gap between its aims and the aims of life. Whereas life moves toward plurality and diversity and the fulfillment of its own freedom, the system demands conformity, uniformity and discipline. The system, Havel said, “is a world of appearances trying to pass for reality.”
• p. 113. Oscar Wilde: “The fatal errors of life are not due to man’s being unreasonable: an unreasonable moment may be one’s finest moment. They are due to man’s being logical. There is a wide difference.”
• p. 113. When our higher-level needs are denied, we develop what psychologist Abraham Maslow called metapathologies: “sicknesses of the soul.”
• p.116. As you begin to live aligned with your deepest values instead of solely economic ones, your actions from day to day can in time give birth to something more articulate and structured, something Havel called “the independent spiritual, social and political life of society.” …The independent life can take almost any form. You don’t automatically have to quit everything you’re doing and move to the country to transcend the monoculture.
• p. 116. As time goes on, that independent life naturally begins to be organized in one way or another, heralding the development of what Havel called “parallel structures”. Parallel structures, he said, are about the daily human struggle to live in freedom, truth and dignity — an articulated expression of living within the truth of life.
• p. 117. Parallel structures are not counter-cultural structures; they are parallel precisely because they emerge alongside the monoculture….Michaels then gives three examples of parallel structures in our society: the Slow Food movement, Christopher Alexander’s A Pattern Language, and Marshall Rosenberg’s Nonviolent Communication.
  

  ---

I asked my friends, “Is Minecraft a good game?”

Responses:

“If you’re the kind of person that likes to answer the question “What have you done today?” with the answer “I played video games” Minecraft is the game for you.”
“It’s like Geek Knitting”
“Yard work is like Minecraft plus exercise.”
“You know how there’s a Flickr group for ppl who make things out of Legos? And there’s ANOTHER group for people who organize the things they’ve made out of Legos, with their special shelves and displays and arrangements? Minecraft is for those people.”

Unconscious Schizophrenia in modern business leaders

Some interesting research is being done by Peter Pruzan in business ethics at the Copenhagen Business School in Denmark, which I read about in Monoculture, viz:

Management professor Peter Pruzan facilitated a workshop fot the executives of a company known for hierarchical control and an emphasis on shareholders, not stakeholders. Pruzan gave these executives, flown in from eight Western countries, a list of ‘values’ like success, love, professional competency, honesty, trust, wealth creativity and power, and asked them to reflect on which ones were most important in their personal lives. They were to discuss their selections in small groups and then list the group’s top five selections in small groups and then list the group’s top five personal values. Later that day, the executives were asked to reflect on the company’s most important values–not the ones officially promoted, but the implicit ones underlying decisions about hiring and firing employees, entering and leaving markets, advertising, lobbying, or negotiating with unions.

When the groups compared their lists of personal and corporate values, everyone realized that within each group the two sets of values were completely different. The executives’ personal values tended to include terms like ‘good health’, ‘honesty’, ‘beauty’, ‘love’, and ‘peace of mind’ and the organizational values included words like ‘success’, ‘power’, ‘competitiveness’, ‘efficiency’, and ‘productivity’. … the gap between a leader’s personal values and the values he or she promotes at work is so extreme, Pruzan said, that leaders have unconsciously developed a modern form of schizophrenia, threatening the health of both the leader and the organization.

Here’s a link to one of his papers: The Question of Organizational Consciousness: Can Organizations Have Values, Virtues and Visions?. Interesting.

Engineers without borders, and the Monoculture

Mat has published a new lunch on Free Lunch Diaries with Parker Mitchell, the founder of Engineers without Borders, which seeks to build sustainable businesses in impoverished areas worldwide. He seems like an accomplished, good-hearted guy. These two quotes stood out for me:

He cites the example of transitioning rural farmers away from relationship-based trading (where you know and can trust the person you’re buying and selling from) to a more global and impersonal trade (where money abstracts and renders irrelevant the relationship between buyer and seller).

Later in the interview he says, in contrast:

He suggests that the notion of leading our lives on the convenient and easy track (school > work > money > consumption) — what he likens to merely “floating down the river” — is at once not a sustainable model for the entire planet and not providing us with spiritually fulfilled happy lives. His somewhat cryptic antidote is to challenge ourselves to “go into the vulnerable, into the questions”. By way of example he challenges the notion that capitalism as we have practiced it over the past 200 years should be the model we adopt for the coming century.

A book I recently read, Monoculture: How one story is changing everything, shows how the economic story is the master narrative that shapes our culture in the modern age, and that resisting that monoculture is the way to human dignity and freedom. Having just read that made these two contrasting passages stand out to me. You can read a blog by FS Michaels too, which gives you a sense of the book’s perspective.

If there were some way of preserving the human, trust-based way of trade, that Mitchell describes above, AND bringing sustainable prosperity to its practitioners, that would be the ideal. It’s a tough problem, but worth solving.

Zugzwang

Learned of “Zugzwang” in Arthur & George by Julian Barnes, which I’ve just finished reading:

Zugzwang (German for “compulsion to move”, pronounced [ˈtsuːktsvaŋ]) is a term usually used in chess which also applies to various other games. The term finds its formal definition in combinatorial game theory, and it describes a situation where one player is put at a disadvantage because he has to make a move when he would prefer to pass and make no move. The fact that the player must make a move means that his position will be significantly weaker than the hypothetical one in which it was his opponent’s turn to move.

In game theory, it specifically means that it directly changes the outcome of the game from a win to a loss. The term is used less precisely in games such as chess; i.e., the game theory definition is not necessarily used in chess. For instance, it may be defined loosely as “a player to move cannot do anything without making an important concession”. Putting the opponent in zugzwang is a common way to help the superior side win a game. In some cases it is necessary to make the win possible.

“The future cheats us from afar”

Alas! It is delusion all;
The future cheats us from afar,
Nor can we be what we recall,
Nor dare we think of what we are.

– Lord Byron, “Stanzas for Music”, from the epigraph to A Brief History of the Future, by Jacques Attali

From Swamplandia!

“How could you make a mistake when you had one option?”

– Louis Thanksgiving, in Karen Russell’s novel “Swamplandia!”, which I’ve just finished reading and would recommend.

Killing the Abraham

In Matthew 1:1 in the Bible, we find the begats.

Abraham begat Isaac; and Isaac begat Jacob; and Jacob begat Judas and his brethren; And Judas begat Phares and Zara of Thamar; and Phares begat Esrom; and Esrom begat Aram; And Aram begat Aminadab; and Aminadab begat Naasson; and Naasson begat Salmon; And Salmon begat Booz of Rachab; and Booz begat Obed of Ruth; and Obed begat Jesse; And Jesse begat David the king; and David the king begat Solomon of her that had been the wife of Urias; and Solomon begat Roboam; and Roboam begat Abia; and Abia begat Asa; And Asa begat Josaphat; and Josaphat begat Joram; and Joram begat Ozias; And Ozias begat Joatham; and Joatham begat Achaz; and Achaz begat Ezekias; And Ezekias begat Manasses; and Manasses begat Amon; and Amon begat Josias; And Josias begat Jechonias and his brethren, about the time they were carried away to Babylon:

And after they were brought to Babylon, Jechonias begat Salathiel; and Salathiel begat Zorobabel; And Zorobabel begat Abiud; and Abiud begat Eliakim; and Eliakim begat Azor; And Azor begat Sadoc; and Sadoc begat Achim; and Achim begat Eliud; And Eliud begat Eleazar; and Eleazar begat Matthan; and Matthan begat Jacob; And Jacob begat Joseph the husband of Mary, of whom was born Jesus, who is called Christ.

I call the founder, founders or founding team of a company “The Abraham”. The Abraham influences all that follows, sets the vision and direction for the company, and the Abraham’s mores, habits, preferences, flaws and prejudices are often built, consciously or unconsciously, into the fabric of the company. This influences the products and services, first and foremost. But the Abraham also influences everything from company HR policies, the kinds of employees that work there, its investors, its customer service and even its logo and office decor. You can often tell what the founder cared about, and didn’t care about. You go to Google and it’s like a playground for adults– curious, smart adults — massive dinosaur in the courtyard, lego tables, beanbag chairs, primary colors — and then you read interviews with Larry and Sergey where they credit their success to having attended Montessori schools, and you see where it came from.

Often the Abraham is CEO, but doesn’t stay CEO. Google’s Abrahams are Larry and Sergey, and they had a strong influence on the company even during the 10 years that Eric Schmidt was CEO. Oracle is very Larry Ellison. Martha Stewart is very Martha Stewart. Zynga is very Mark Pincus. Groupon is very Andrew Mason. And isn’t Apple so very much Steve Jobs, so much so that when he left, and his successors tried to kill the Abraham, the company nearly died? It’s hard to kill the Abraham. Not only that, if you succeed, it may not be possible for the new leader to assume the mantle. Best for the Abraham to stick around, and work closely with the new leaders to make sure the spirit of the company survives. This has been, in my experience and observation, the best method for retaining the magical juju. This is why the role of incoming, non-native CEO at a startup is a notoriously difficult job. They don’t fit in with the company culture. Most of them don’t last a year.

Companies without a strong Abraham lose their way. If you can’t identify who is at the helm, it better be a commodity business that anybody can run (Warren Buffett: “Invest in a company any fool can run, since some day a fool will.”) Did Pierre Omidyar leave too early, or cede too much control to be able to set the course for eBay? In the book The Perfect Store the author talked about Meg Whitman asking if Pierre was going to stay, but did he strongly influence its direction? Yahoo wasn’t led for very long — from what I can gather, less than a year? — by David Filo and Jerry Yang, its Abrahams. The Abraham can also lose control when the extent of the empire becomes too great, and the Abraham can no longer see what’s happening in the farflung regions. The farther you get from the people you are making decisions for, the worse those decisions are likely to be.

The Abraham is especially powerful in social software, in anything that shows the people, the members, what to do, how to communicate, and how to behave. The founders dictate what the software does, how people use it, what the practices and mores are of the community. This is built into the software, and its assumptions of human behavior. As Larry Lessig noted, code is law. In social software how you interact with others is influenced by what values are built into the software. On Facebook we are very much living in Mark Zuckerberg’s vision of society. MySpace was like Chris and Tom, Friendster was like Jonathan Abram, LinkedIn is like Reid Hoffman. Foursquare is like Dennis Crowley and Naveen Selvadurai. And dare I say Flickr was like something that would have happened if you put some English majors, a philosopher, some artists and hackers in a blender.

There’s a lot of glory in being the Abraham — you’re the father or three religions after all. People follow your lead. But most founders aren’t thinking about this when they start out, they just like making things, have a vision of something new. In dreams begin responsibilities, as Delmore Schwartz wrote. Abrahams are often called upon to do difficult work, thankless tasks, and sometimes, terrible things, as when god asked Abraham to kill his own, firstborn son, Isaac. Steve Jobs was rightly praised for his ability to “Kill his babies” — that is, disrupt himself. We may be taking the metaphor too far here, but hey. Let’s.

That’s the fate of the Abraham. Kill your babies, or be killed by your babies. Beget something great and the begats will follow! Salmon, Booz, Jesse, Ozias, Zorobabel and all the rest.

Clayton Christensen on the longterm

Professor Christensen…thought the government should consider a new kind of tax structure that encourages longterm investments and stability. For instance, no capital gains taxes for investments that last as long as eight years.

Yes! On GigaOm

The basics

“The budget should be balanced, the Treasury should be refilled, public debt should be reduced, the arrogance of officialdom should be tempered and controlled, and the assistance to foreign lands should be curtailed lest Rome become bankrupt. People must again learn to work, instead of living on public assistance.”

– Cicero, 55 BC

Naturalist, 13, studies fibonacci sequence in trees

The Young Naturalist Award, given to 13-year-old Aidan, who studied the Fibonacci sequence and applied it to trees, conjectured it made trees more efficient at capturing sunlight, and set off on a series of experiments and explorations:

when I went on a winter hiking trip in the Catskill Mountains in New York, I noticed something strange about the shape of the tree branches. I thought trees were a mess of tangled branches, but I saw a pattern in the way the tree branches grew. I took photos of the branches on different types of trees, and the pattern became clearer.

The branches seemed to have a spiral pattern that reached up into the sky. I had a hunch that the trees had a secret to tell about this shape. Investigating this secret led me on an expedition from the Catskill Mountains to the ancient Sanskrit poetry of India; from the 13th-century streets of Pisa, Italy, and a mysterious mathematical formula called the “divine number” to an 18th-century naturalist who saw this mathematical formula in nature; and, finally, to experimenting with the trees in my own backyard.

His conclusion:

The tree design takes up less room than flat-panel arrays and works in spots that don’t have a full southern view. It collects more sunlight in winter. Shade and bad weather like snow don’t hurt it because the panels are not flat. It even looks nicer because it looks like a tree. A design like this may work better in urban areas where space and direct sunlight can be hard to find.

Make things

Anil and I have had a few conversations lately about building cool stuff for the internet, the Golden Age of the independent web, and how it’s increasingly hard to filter out industry noise. He posted a quote from Dave Winer and it reminded me of our “About” page for Ludicorp, where we outlined our corporate philosophy (kicking ass), which is akin to avoiding a tour of gas stations. I have a quote behind my desk from Freeman Dyson that I see every day: “There is a great satisfaction in building good tools for other people to use.”

Anil worries that it’s hard to communicate this motivation to a new generation of entrepreneurs, and I agree. There are so many conferences these days, so many voluble, charismatic leaders, and so much noise. I talk to a lot of entrepreneurs in their 20s who are knowledgeable about the valuations various Y Combinator startups have attained, know the names of all the angel investors in the Valley, have in-depth knowledge of the Facebook diaspora and their doings, have opinions on various Zynga acquisitions, and know exactly how to get Andrew Mason on the line…it boggles the mind. These are good things to have in your tool kit. But I want to hear about things out there that they love. About loving the thing they’re building. There’s less of that. Nevertheless, Anil remains “optimistic that we can make this mindset the default.”

Just after reading his post, I settled in to read a book about homeschooling, by John Holt, and in it I found this heartening quote:

Leaders are not what many people think–people with huge crowds following them. Leaders are people who go their own way without caring, or even looking to see whether anyone is following them. “Leadership qualities” are not the qualities that enable people to attract followers, but those that enable them to do without them. The include, at the very least, courage, endurance, patience, humor, flexibility, resourcefulness, determination, a keen sense of reality, and the ability to keep a cool and clear head even when things are going badly. This is the opposite of the “charisma” that we hear so much about.

And this made me think. People ask me who inspires me. This question often stumps me because I have been inspired in my work by stuff that people make. I fell in love with zines and independent radio when I was an isolated teenager living in the suburbs. Then BBSs, people’s personal web sites, Usenet, Entropy8, online zines (holy crap, the old Bitch magazine site is now a porn portal! And Maxi is squatted!), blogs, Excel, online communities, Amazon, Salon, eBay, O’Reilly books, Google, Friendster, Alamut, NQPAOFU, Metafilter, board games, Blogger, paper games, 1000 blank cards, The Mirror Project, 1000 journals, Moveable Type, 20 things, Google Maps, Flickr, Gmail, last.fm, iPhone, NaNoWriMo, McSweeney’s, Kingdom of Loathing, muxtape, vimeo, Etsy, iPad, Kickstarter …the people who make these things are my leaders. Most of the time I don’t know their names. Sometimes I’m lucky and do.

So, to hell with all that noise. It’s just a big mass of envy, chatter and FOMO. Let’s get excited and make things.

Huston Smith on Confucian Ideals

Huston Smith sums up Confucian ideals under five key terms:

The first term is jen, which “involves simultaneously a feeling of humanity toward others and respect for oneself, an indivisible sense of the dignity of human life wherever it appears…In private life it is expressed in courtesy, unselfishness, and empathy, the capacity to ‘measure the feelings of others by one’s own’…

The second is chun tzu “Fully adequate, poised, the chun tzu has toward life as a whole approach of an ideal hostess who is so at home in her surroundings that she is completely relaxed, and being so, can turn full attention to putting others at their ease. The chun tzu carries these qualities of the ideal host with him through life generally…Only as those who make up society are transformed into chun tzus can the world move toward peace…

The third concept, li, has two meanings. Its first meaning is propriety, the way things should be done. It is comme il faut. It is wary of excess and it guards the Five Constant Relationships, “those between parent and child, husband and wife, elder sibling and junior sibling, elder friend and junior friend, and ruler and subject. It is vital to the health of society that these key relationships be rightly constituted.

The fourth pivotal concept, Te, means literally, “power, specifically the power by which men are ruled.”..No state, Confucius, was convinced, can constrain all its citizens all the time, nor even any large fraction of them a large part of the time. It must depend on widespread acceptance of its will, which in turn requires a certain positive fund of faith in its total character…Real Te, therefore, lies in the power of moral example…”

The final concept, Wen, refers to the ‘arts of peace’ as contrasted to the ‘arts of war’; to music, art, poetry, the sum of culture in its esthetic mode. Confucius contended that the ultimate vitory goes to the state that develops the highest Wen, the most exalted culture…For in the end it is these things that elicity the spontaneous admiration of men and women everywhere.

– Huston Smith, The Religions of Man, pp. 159-166

Picasso on love and art

In art intentions are not sufficient and, as we say in Spanish: love must be proved by facts and not by reasons. What one does is what counts, and not what one has the intention of doing.

– Picasso, 1923 (via Victoria)

Congratulations Instructables!

I was so happy to see the Instructables announcement — they are being acquired by Autodesk — and Eric and Christy and the team couldn’t be more deserving entrepreneurs. Anyone who knows Eric and Christy know that they *are* Instructables — ever-curious inventors and unstoppable makers, and that they build a flourishing community around Instructables over the past 5 years, since their inception in 2006. On Twitter, people were joking about how we found ourselves in The Big Make and that we’d all be talking about how, as Anil said, “the scene used to be indie, man” and yes, this is a sign that DIY is growing up.

MakerBot, O’Reilly’s Maker Magazine, Craft Magazine and Maker Faire, Etsy, Kickstarter, Inventables, Tinkercad — these are companies built by passionate members of a thriving community, and I am so happy to see it coming together, and some of its most notable practitioners having a good outcome for their work.

Instructables was also built for a relatively small amount of money — they didn’t raise a lot, and built a real business with premium accounts and advertising, which also shows that seed funding can be the right way to go to get a company off the ground, and subsequent financings may not be needed in some cases.

Congratulations Eric and Christy!

Cities grow, companies die

Why Cities Keep Growing, Corporations Always Die and Life Gets Faster, a summary of Geoffrey B. West’s LongNow talk, by Stewart Brand.

West is interested in scalability, starting out with research on animals, whose scaling is sublinear, up to cities, which is superlinear. Cities want to grow, and while companies want to grow as well, or even survive, they do not. The mean lifespan of a company is only 10 years.

Why the Republican candidates are so strange

Observation by Michael Wolff, Rupert Murdoch’s Biographer, in the Guardian:

Let’s take the present presidential election cycle, in which you have a list of candidates in the Republican party. [You look] at these people and think, “how did they get here? These are the strangest group of national candidates ever assembled, how did this happen?” The answer, most obviously, is because of Fox News. It has two million viewers who want to be entertained by politics, who need exaggerated figures to entertain them. You can only be a viable Republican if you speak to the Fox audience. They demand exaggerated figures, therefore we have conservatives who are unelectable in America.

Patients Like Me, signup form

Patients Like Me is a “way for you to share your real-world health experiences in order to help yourself, other patients like you and organizations that focus on your conditions.”