Scott Granneman

The way to trick smart people

commonplace book, language & literature, politics, science, security, technology / /

From Paul’s “The easiest way to fool smart people“:

There’s a saying among con-men that smart people are easier targets, because they don’t think they can be conned.

I’m not sure if that’s true, but there’s one scam that’s almost guaranteed to make smart people switch off their brains and reach for their wallets. It’s a trick that’s used so pervasively in our culture, that once you become aware of it, you start to see it everywhere. …

Most smart people have a hidden weakness and it’s this – they’re absolute suckers for anything that sounds clever.

As soon as you start hitting people with technical terms, fancy graphs, famous names and the like, you’ll immediately increase your credibility. If they’re smart, they’re even more likely to find themselves nodding in agreement. Many intelligent people would rather cut off a finger than admit they don’t know what you’re talking about. …

Even better, they can pretend to be teaching their audience something important. A person who was previously completely ignorant about quantum physics now feels as if they understand something about it – even if that something is absolute baloney. The audience have been fed ideas they’ll now defend even against someone who’s a real expert in that subject. Nobody likes to be told that something they’ve been led to believe is wrong. …

Consultants behave this way because they know that’s how to get a sale. Bombard people with clever-sounding stuff they don’t really understand, and they’ll assume that you’re some kind of genius. It’s a great way of making money.

Stock analysts, economic forecasters, management consultants, futurologists, investment advisors and so on use this tactic all the time. It’s their chief marketing strategy for the simple reason that it works.

The way to trick smart people Read More »

Social network analysis by the NSA

law, politics, tech in changing society, technology / /

From John Diamond and Leslie Cauley’s “Pre-9/11 records help flag suspicious calling” (USA TODAY: 22 May 2006):

Armed with details of billions of telephone calls, the National Security Agency used phone records linked to the Sept. 11, 2001 attacks to create a template of how phone activity among terrorists looks, say current and former intelligence officials who were briefed about the program. …

The “call detail records” are the electronic information that is logged automatically each time a call is initiated. For more than 20 years, local and long-distance companies have used call detail records to figure out how much to charge each other for handling calls and to determine problems with equipment.

In addition to the number from which a call is made, the detail records are packed with information. Also included: the number called; the route a call took to reach its final destination; the time, date and place where a call started and ended; and the duration of the call. The records also note whether the call was placed from a cellphone or from a traditional “land line.” …

Calls coming into the country from Pakistan, Afghanistan or the Middle East, for example, are flagged by NSA computers if they are followed by a flood of calls from the number that received the call to other U.S. numbers.

The spy agency then checks the numbers against databases of phone numbers linked to terrorism, the officials say. Those include numbers found during searches of computers or cellphones that belonged to terrorists.

It is not clear how much terrorist activity, if any, the data collection has helped to find.

Social network analysis by the NSA Read More »

TV signals passing through the Stone Age air

commonplace book, technology / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

The gift-dropping missions had ended in 1996. There was still no television set on North Sentinel; it remained, like Prospero’s island, a place where the air shimmered with invisible signals, with unseen Hindi soap operas and Thai music that drifted, unheard, across the Andaman Sea.

TV signals passing through the Stone Age air Read More »

Colonialism at its most obvious

history, language & literature, politics / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

Then [in the 1860s], suddenly, the hostilities [by the Andaman Islanders] ceased almost entirely. There was one cataclysmic battle – fifteen hundred naked warriors came charging out of the jungle, straight up against the guns of a British warship, with predictably ghastly results – and after that, only a few desultory clashes. Quite unaccountably, the natives started wandering out into the settlement and behaving like friends: odd, bright-eyed little people whose merry air suggested that they had forgotten there had ever been bloodshed. The Andamanese would ask for gifts (coconuts, bananas, and, before long, tobacco and liquor) and make amiable sport with the British soldiers, plucking at the brigadesmen’s red coats and pulling on their whiskers. They even began coming voluntarily to live in the “Andamanese Home,” an institution for their welfare that the British established on Ross Island.

But in some ways, their presence was now even more nettlesome than it had been before. The Andamanese had certain noteworthy talents, but few that could profitably be applied to the needs of a colonial settlement. They were excellent bow-men, amazingly proficient swimmers (some could even shoot arrows accurately while treading water), uncanny mimics, and skilled jungle trackers, able to communicate across miles of forest by banging out signals on the buttress roots of certain trees. So the British put them to use hunting down escaped convicts – a reasonable occupation, though hardly enough to occupy them full-time. A few of the natives were employed as nannies, since it was quickly noticed that they were remarkably affectionate with children, the Europeans’ as much as their own. Others were kept as objects of amusement in Port Blair households, to be dressed up and coddled – at least until their masters’ tours of duty ended, when they were left to fend for themselves. “The Government of [British] India,” one official noted approvingly, “[has] adopted a policy towards the aborigines of the Andaman Islands which has made them, above all races of savages, the most carefully tended and petted.” Here are some names given to Andamanese in the nineteenth century by the British, which I came across in various old documents: Topsy, Snowball, Jumbo, Kiddy Boy, Ruth, Naomi, Joseph, Crusoe, Friday, Tarbaby, King John, Moriarty, Toeless, Punch, Jacko, Jingo, Sambo, and Queen Victoria.

Colonialism at its most obvious Read More »

Lost tribe hoaxes

commonplace book, history, technology / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

Even so, every few years there is a report of one “lost tribe” or another – usually in the Amazon rain forest or the highlands of New Guinea – staggering naked from the jungle into the dazzling glare of modernity. Such stories are almost invariably followed by a retraction: the tribesmen turn out to have T-shirts and cigarettes stashed back in their huts, and the original report turns out to have been a mistake or a fraud. (The most famous such incident was the so-called Tasaday hoax of 1971, involving a supposed Stone Age tribe in the Philippines; the tribesmen were Filipino farmers whom local politicians had coerced into posing as naked cave-men for the camera crews from CBS and National Geographic.)

Lost tribe hoaxes Read More »

How to travel to the most isolated human settlement on earth

commonplace book, cool stuff / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

This is how you get to the most isolated human settlement on earth [North Sentinel Island, in the Andaman Islands]: You board an evening flight at JFK for Heathrow, Air India 112, a plane full of elegant sari-clad women, London-bound businessmen, hippie backpackers. You settle in to watch a movie (a romantic comedy in which Harrison Ford and Anne Heche get stranded on a desert island) and after a quick nap you are in London.

Then you catch another plane. You read yesterday’s Times while flying above the corrugated gullies of eastern Turkey, watch a Hindi musical somewhere over Iran. That night, and for the week that follows, you are in New Delhi, where the smog lies on the ground like mustard gas, and where one day you see an elephant – an elephant! – in the midst of downtown traffic.

From New Delhi you go by train to Calcutta, where you must wait for a ship. And you must wait for a ticket. There are endless lines at the shipping company office, and jostling, and passing back and forth of black-and-white photographs in triplicate and hundred-rupee notes and stacks of documents interleaved with Sapphire brand carbon paper. Next you are on the ship, a big Polish-built steamer crawling with cockroaches. The steamer passes all manner of scenery: slim and fragile riverboats like craft from a pharaoh’s tomb; broad-beamed, lateen-rigged Homeric merchantmen. You watch the sun set into the Bay of Bengal, play cards with some Swedish backpackers, and take in the shipboard video programming, which consists of the complete works of Macaulay Culkin, subtitled in Arabic. On the morning of the sixth day your ship sails into a wide, sheltered bay – steaming jungles off the port bow, a taxi-crowded jetty to starboard – and you have arrived in the Andamans, at Port Blair.

In Port Blair you board a bus, finding a seat beneath a wall-mounted loudspeaker blaring a Hindi cover of “The Macarena Song.” The bus rumbles through the bustling market town, past barefoot men peddling betel nut, past a billboard for the local computer-training school (“I want to become the 21st century’s computer professional”). On the western outskirts you see a sawmill that is turning the Andaman forests into pencils on behalf of a company in Madras, and you see the airport, where workmen are busy extending the runway – out into a field where water buffalo graze – so that in a few years, big jetliners will be able to land here, bringing tour groups direct from Bangkok and Singapore A little farther on, you pass rice paddies, and patches of jungle, and the Water Sports Training Centre, and thatched huts, and family-planning posters, and satellite dishes craning skyward.

And then, within an hour’s time, you are at the ocean again, and on a very clear day you will see [North Sentinel] island in the distance, a slight disturbance of the horizon.

How to travel to the most isolated human settlement on earth Read More »

How to grade or judge water

commonplace book / /

From Gideon Lewis-Kraus’s “The Water Rush” (Oxford American):

On the tables in front of us are pink “trial” judging sheets. Across the top run a series of boxes for water numbers, and down the side is the set of criteria we’ll be using. Arthur goes through the criteria one by one, and explains what to look for.

The first criterion is Appearance, which is rated on a scale from zero to five. Good is colorless; bad is cloudy. Self-explanatory, so Arthur moves along quickly to Odor, which is also based on five possible points. The box on the sheet has one example of a positive descriptor on the left side—in this case, “none”—and a row of possible characterizations of water odor on the right side: chlorine, plastic, sulfur, chemical, musty. Next on the list is Flavor, rated out of ten points; the left side of the box reads “clean” and the right side has the identical list of identifiers provided for Odor, plus “salty.” Mouthfeel is back down to a five-point criterion, and the relevant distinction is “refreshing/stale.” There’s a five-point box for Aftertaste (this one on a spectrum from “thirst-quenching” to “residue”), and finally we come to Overall Impressions.

Overall Impressions is scored out of fourteen points, which makes the total available points for each entrant an eyebrow-raising forty-nine. The fourteen-point scale is provided to us on an attached sheet. It was developed by a food scientist at UC Berkeley named William Bruvold. In the ’60s, he pioneered experiments in the acceptability levels of total dissolved solids in water, and he used his students as subjects; he incrementally increased the turbidity of the sample until the water came to resemble Turkish coffee and his students refused to drink it. Out of these experiments came this scale, which Arthur tantalizingly referred to the day I met him in Santa Barbara. Arthur seems a bit sheepish about the language of the document.

The fourteen-point scale, in its entirety, reads exactly as follows (all formatting original):

1. This water has a TERRIBLE, STRONG TASTE. I can’t stand it in my mouth.

2. This water has a TERRIBLE TASTE. I would never drink it.

3. This water has a REAL BAD TASTE. I don’t think I would ever drink it.

4. This water has a REAL BAD TASTE. I would drink it only in a serious emergency.

5. This water has a BAD TASTE. I could not accept it as my everyday drinking water, but I could drink it in an emergency.

6. This water has a BAD TASTE. I don’t think I could accept it as my everyday drinking water.

7. This water has a FAIRLY BAD TASTE. I think I could accept it as my everyday drinking water.

8. This water has a MILD BAD TASTE. I could accept it as my everyday drinking water.

9. This water has an OFF TASTE. I could accept it as my everyday drinking water.

10. This water seems to have a MILD OFF TASTE. I would be satisfied to have it as my everyday drinking water.

11. This water seems to have a LITTLE TASTE. I would be satisfied to have it as my everyday drinking water.

12. This water has NO SPECIAL TASTE at all. I would be happy to have it for my everyday drinking water.

13. This water TASTES GOOD. I would be happy to have it for my everyday drinking water.

14. This water tastes REAL GOOD. I would be very happy to have it for my everyday drinking water.

How to grade or judge water Read More »

Smallest state park in the USA

commonplace book, history, politics / /

From Gideon Lewis-Kraus’s “The Water Rush” (Oxford American):

Anywhere else, the four and a half acres of muddy, flat grass cross-hatched by asphalt paths and crowned by a green-pink-and-white gazebo would be the town park. Here in Berkeley Springs[, West Virginia], population 663, “the country’s first spa,” it is a state park. It is, in fact, the smallest state park in the nation. Along the embankment on the west side of the park is a camp of low-slung yellow-brick buildings that house the Berkeley Springs, font of the town’s hydrocentric entertainments. Besides the springs, the town’s attractions include antique malls, craft shops, acupuncturists, and a homeopathy museum.

Smallest state park in the USA Read More »

Soviet-style society & the US

politics / /

From Jim Marcinkowski’s “National Security: The Attack on the Constitution“:

Over the past 30 years, I have served this country in a variety of positions from the FBI to the CIA, and as a lawyer and a prosecutor …

We fought the Soviets and I fought the Soviets because they had a fatally flawed, intolerable system of government where (and think about this):

The government was always right and never apologized;

Any dissent was suppressed, ridiculed, banned or worse;

Secret prisons were denied and never acknowledged or spoken about;

The torture of captives (in Lubyanka) was condoned;

State incarceration was not subject to the checks and balances of a legal system;

Economic plans, like for oil, were established/determined in closed sessions between politicos, commissars and production managers, far outside public view, and where government claimed privilege in so doing;

Wages were set at the lowest common denominator, no matter what Bloc country you were in;

Government agents had access to your medical records, your library records, your telephone, and your e-mail.

A place where judicial power and judicial review were proclaimed concepts, but simply ignored in application;

Where criminal records of young adults were closed to all but the military;

Where a Constitution was a mere facade and ignored by state actors.

Any dissent, debate and protest were deemed unpatriotic;

The public media was bought, paid for, and provided by the state;

The military clandestinely and shamelessly influenced the national media and public opinion;

A place where wrong was declared right;

Where tapping a phone was like tapping a pencil;

Where lying was considered a patriotic skill;

The extraction of natural resources was paramount to any concern for the environment and the impact on the health of its people;

Where the use of “state secrets,” (those things embarrassing to the government) were confused with legitimate issues of “national security”;

A place where “secrecy” and “national security” were used to control debate;

Where legitimate secrecy, was subject to political use and abuse;

Where “legislators” were mere mouthpieces for and rubberstamps of whoever was in power;

Where you lived and died with the permission of the government;

A place where foreign policy was more important than domestic concerns;

Where fear was used as a political weapon and an acceptable means of control;

Where the best medical care was reserved for the influential;

Where wealth was concentrated in the top 5%;

A place where there was no middle class – just a small economic and political elite, and the working poor.

… Since 1995 the Republican Party and its friends in the American corporate structures that so vigorously contribute to and support them have – in the space of a decade – created in this country more than the beginnings of a system that this country spent 50 years trying to dismantle.

Soviet-style society & the US Read More »

Google’s number tricks

business, cool stuff, technology, weird / /

From “Fuzzy maths” (The Economist: 11 May 2006):

MATHEMATICALLY confident drivers stuck in the usual jam on highway 101 through Silicon Valley were recently able to pass time contemplating a billboard that read: “{first 10-digit prime found in consecutive digits of e}.com.” The number in question, 7427466391, is a sequence that starts at the 101st digit of e, a constant that is the base of the natural logarithm. The select few who worked this out and made it to the right website then encountered a “harder” riddle. Solving it led to another web page where they were finally invited to submit their curriculum vitae.

If a billboard can capture the soul of a company, this one did, because the anonymous advertiser was Google, whose main product is the world’s most popular internet search engine. With its presumptuous humour, its mathematical obsessions, its easy, arrogant belief that it is the natural home for geniuses, the billboard spoke of a company that thinks it has taken its rightful place as the leader of the technology industry, a position occupied for the past 15 years by Microsoft. …

To outsiders, however, googley-ness often implies audacious ambition, a missionary calling to improve the world and the equation of nerdiness with virtue.

The main symptom of this, prominently displayed on the billboard, is a deification of mathematics. Google constantly leaves numerical puns and riddles for those who care to look in the right places. When it filed the regulatory documents for its stockmarket listing in 2004, it said that it planned to raise $2,718,281,828, which is $e billion to the nearest dollar. A year later, it filed again to sell another batch of shares – precisely 14,159,265, which represents the first eight digits after the decimal in the number pi (3.14159265). …

Google’s number tricks Read More »

Google’s data trove tempts the bad guys

business, security, tech in changing society, technology / /

From “Fuzzy maths” (The Economist: 11 May 2006):

Slowly, the company is realising that it is so important that it may not be able to control the ramifications of its own actions. “As more and more data builds up in the company’s disk farms,” says Edward Felten, an expert on computer privacy at Princeton University, “the temptation to be evil only increases. Even if the company itself stays non-evil, its data trove will be a massive temptation for others to do evil.”

Google’s data trove tempts the bad guys Read More »

Why it’s hard for prisoners to sue prison systems

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.

This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.

Why it’s hard for prisoners to sue prison systems Read More »

History & numbers on prison rape

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

In his 18 months at [the maximum-security Allred Unit in Iowa Park, Tex.], [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] did time as the property of the Bloods, the Crips, the Mandingo Warriors, and the Mexican Mafia, all of whom forced him to have sex with their members. They also sold his services to other inmates, usually for between $5 and $10. (A cigarette in Allred goes for $1.50.) …

The prevalence of rape in prison is fearsome. Line officers recently surveyed in one southern state estimated that one in five male prisoners were being coerced into sex; among higher-ranking officials, the estimate was one in eight. Prisoners themselves estimated one in three. (Female prisoners are the victims of rape as well, though they are usually assaulted by male guards, not other inmates; the phenomenon of male-on-male prison rape is generally studied separately.) …

The traditional rationale for prison rape is the lack of women, but most psychologists consider this facile. They see prison rape mainly as a means by which people who have been stripped of control over the most basic aspects of their lives – when to eat a meal, take a shower, or watch TV – can reclaim some sense of power. As one Louisiana prisoner, Wilbert Rideau, wrote, “the psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of [a prisoner’s] sense of manhood and personal worth.” Others believe that prisoners become rapists out of fear of becoming victims themselves; it’s a choice between becoming predator or prey. The psychologist Daniel Lockwood, in his study Prison Sexual Violence, calls this strategy “pre-emptive self-defense.” …

IN 1826, IN WHAT WAS LIKELY THE FIRST PUBLISHED MENTION of prison rape in the history of the republic, the Rev. Louis Dwight wrote that “Boys are Prostituted to the Lust of old Convicts” throughout the institutions he surveyed from Massachusetts to Georgia. Dwight, the founder of the Prison Discipline Society of Boston, a prison reform group, wrote that “Nature and humanity cry aloud for redemption from this dreadful degradation.” It was not until the 21st century, however, that the nation saw its first anti-prison-rape legislation.

Last year, Congress passed the Prison Rape Reduction Act, which allocates $60 million to support rape-prevention programs run by federal, state, and local corrections staff and to aid investigations and punishment of perpetrators. The bill, which enjoyed bipartisan support in the House and the Senate, also requires states to collect statistics on prison rape.

History & numbers on prison rape Read More »

Why courts don’t use legal-size documents any longer

history, law / /

From Suzanne Snider’s “Old Yeller” (Legal Affairs: May/June 2005):

The legal-size legal pad has been under attack since as early as 1982, when then Chief Justice Warren Burger banished legal-size documents from federal courts. One informal survey estimated Burger’s move saved almost $16 million through more efficient use of storage space. Several states followed the federal government’s lead …

Why courts don’t use legal-size documents any longer Read More »

A history of the public notice

business, history, law, politics / /

From Sasha Issenberg’s “On Notice” (Legal Affairs: July/August 2005):

In the Middle Ages, the Crown designated a half-dozen sites in London where a herald would read proclamations from the king. These announcements first found their way into print in 1665 when the London Gazette, considered the first English-language newspaper (at least as we now understand the term), began publishing. It was the Crown that put out the Gazette, and thus the newspaper was little more than a broadsheet filled with public notices.

In the 1690s, private competition reached the London newsstand. Yet even those newspapers that were not published directly by the government continued to seek its consent and imprimatur. In 1704, across the Atlantic, a newspaper called The Boston Newsletter hit the streets of the Hub; like many early American newspapers, it bore the slogan, “Published by Authority.” Though newspapers had ceased to exist merely for the purpose of publishing government decrees, they continued to run the notices as proof of the papers’ journalistic credibility. “Unlike in our day, it was looked at as an act of authenticity,” says Charles Clark, a professor emeritus of history at the University of New Hampshire who wrote about early American newspapering in a book called The Public Prints.

Sometimes these announcements appeared under the rubric “Proclamations for Royal Government,” Clark explained, but usually papers “just printed the notices in what we would think of as the news columns – even though that distinction is a bit of a stretch for those days. In many instances the notices constituted the news.” (Toward the end of the 18th century, according to Clark, newspapers also began to feature private-sector legal announcements: creditors demanding payment were popular. “The most frequent things,” Clark said, chuckling, “are men putting in notices: ‘My wife is leaving my bed and board. I shall no longer be responsible for her debt.’ “) …

In 1789, among the acts of the first session of the Congress was a directive to the secretary of state to publish all bills, orders, resolutions, and votes in at least three newspapers.

For its efforts at transparency, the fledgling government was rewarded with an increasingly suspicious press. During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically. …

A history of the public notice Read More »

The Mann Act as problematic law

history, law / /

From Roderick M. Hills, Jr.’s “The Federalist Capers” (Legal Affairs: May/June 2005):

BY CONTRAST WITH THE COURT’S RECORD IN ECONOMIC MATTERS, the pre-New-Deal court was oddly reluctant to impose any limits on federally sponsored cultural conservatism. The Mann Act, which prohibited any person from aiding in the interstate transportation of a “woman or girl” for “prostitution, or debauchery, or for any other immoral purpose,” provides a useful illustration of the limits that judicially enforced federalism will go to.

Congress enacted the Mann Act in 1910 by comfortable majorities, in the wake of a national furor over allegations that young women were being kidnapped by syndicates of brothels and forced to work as prostitutes. In retrospect, historians explain the panic over “white slavery” as largely attributable to anxieties over immigration (the syndicates were said to be run by foreigners, especially foreign Jews) and urbanization, which led to a rise in the numbers of unaccompanied single women visible in public places.

Although the act was inspired by fears of coerced prostitution, it was soon enforced by the federal government as part of a crusade against nonmarital sex in general. As David Langum has shown in Crossing Over the Line, a large majority of the FBI’s Mann Act investigations during the 1920s was for noncommercial offenses, typically prosecutions of unmarried but romantically involved couples who crossed state lines. Even the purpose of protecting women from coercion was soon dropped. The Department of Justice took the view that the female “victim” should generally be prosecuted as a co-conspirator if she consented to “immoral” travel. Charges were frequently foregone if the “victim” married the perpetrator, suggesting that the statute was really a federal effort to protect males’ control over their wives and daughters. Though the federal government abandoned the effort to enforce the Mann Act in the 1930s against noncommercial sex, J. Edgar Hoover later used it in raids on brothels to collect information about public persons, like Charlie Chaplin, whom he regarded as subversive.

In short, the Mann Act was everything that you would expect from centralized enforcement of sexual morality – oppressive, gratuitous, and subject to all the abuses of prosecutorial discretion. The regulation of interstate transportation was a thin pretext for federal intervention, given that the act’s authors surely were not concerned that the states were somehow incompetent to regulate sexual morality within their boundaries.

In light of all of these concerns, you might expect that the Supreme Court would have found the Mann Act to be an easy case for invalidation under principles of federalism. But the court unanimously upheld the act in 1913 in Hoke v. United States, and then also upheld its application to noncommercial consensual sexual liaisons four years later in Caminetti v. United States.

The Mann Act as problematic law Read More »

Bird in Flight, Brancusi, & US Customs law

business, history, law / /

From Stéphanie Giry’s “An Odd Bird” (Legal Affairs: September/October 2002):

After a weeklong journey from France, crates of sculptures by Constantin Brancusi arrived in New York harbor on the steamship Paris, escorted by the artist Marcel Duchamp. It was October 1926 and the sculptures were to be exhibited in the city at the avant-garde Brummer Gallery. United States Customs officials opened the crates and uncovered 20 mysterious disks, eggs, and flame-like forms of carved wood, polished metal, or smooth marble. One work in particular left them dumbfounded: a thin, 4 1/4-foot-tall piece of shiny yellow bronze with a gently tapering bulge called Bird in Space. It didn’t look like a bird to the officials, so they refused to exempt it from customs duties as a work of art. They imposed the standard tariff for manufactured objects of metal: 40 percent of the sale price, or $240 (about $2,400 in today’s dollars). …

Under pressure, the customs office agreed to reconsider its decision. In the meantime, it released Bird in Space and other sculptures, on bond and under the classification “Kitchen Utensils and Hospital Supplies,” so they could be exhibited at the Brummer Gallery and then at the Arts Club in Chicago.

Both shows were successes, but in February 1927 the federal customs appraiser F.J.H. Kracke confirmed his office’s initial finding that any sculptures Brancusi sold in the United States, like Steichen’s Bird, would be subject to duty. In an interview with the New York Evening Post, Kracke explained his ruling: “Several men, high in the art world were asked to express their opinions for the Government…. One of them told us, ‘If that’s art, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes are as artistic as Brancusi’s work.’ In general, it was their opinion that Brancusi left too much to the imagination.”

The next month, Steichen filed Brancusi v. United States to appeal customs’ decision. Abstract Art was now on trial. …

Six influential figures testified for Brancusi: Steichen, who was an established photographer; the sculptor Jacob Epstein; Forbes Watson, the editor of the review The Arts; Frank Crowninshield, the editor of Vanity Fair; William Henry Fox, the director of the Brooklyn Museum of Art; and the art critic Henry McBride. The witnesses for the government, the sculptors Robert Aitken and Thomas Jones, now long forgotten, enjoyed great academic reputations at the time. Judge Young was new to the Customs Court. The 75-year-old Waite had been serving on it and its earlier incarnation, the Board of General Appraisers, for 25 years.

Also present in the courtroom as Exhibit 1 was the Bird, which sat on a table, shimmering and soaring toward the ceiling while the lawyers debated whether it was an “original sculpture” or a metal “article or ware not specially provided for” under the 1922 Tariff Act. For the Bird to enter the country duty-free under the act, Steichen’s lawyers had to prove that Brancusi was a professional sculptor; that the Bird was a work of art; that it was original; and that it had no practical purpose.

By 1927 and after four one-man shows in New York, there was little question that the 51-year-old Brancusi was recognized as a professional sculptor – controversial perhaps, but definitely well-known. There was also little question that the Bird had no utility, even though the customs office had released it under the classification “Kitchen Utensil.”

But because Brancusi had shown four other bird sculptures like Steichen’s at the Brummer show, it wasn’t clear whether Steichen’s was the only one of its kind. And it was far from clear whether the Bird could be called art, because it looked like nothing anyone had ever seen before.

During the hearing, Judges Young and Waite placed great emphasis on the Bird’s title. The Tariff Act didn’t require that sculptures be realistic, but under a 1916 Customs Court decision called United States v. Olivotti sculptures qualified as art works only if they were “chisel[ed]” or “carve[d]” “imitations of natural objects,” chiefly the human form representing such objects “in their true proportions.” …

When he was 26, according to legend, Brancusi set out on foot on the 1,200-mile journey to Paris; however he got there, in 1904 he enrolled at the prestigious école des Beaux Arts. The decade that followed was marked for him by poverty, hard work, and eventually a place in the avant-garde community among Duchamp, Ezra Pound, Amedeo Modigliani, and Erik Satie, who would become his friends and transforming influences. At an exhibit in Paris in 1906, Auguste Rodin, then the towering figure in sculpture, spotted one of Brancusi’s pieces and invited him to work in his studio. Brancusi declined because he believed “nothing grows well in the shadow of a big tree.” …

But to Thomas Jones, a professor at Columbia who testified for the customs office, the Bird was “too abstract and a misuse of the form of sculpture.” Robert Aitken, the government’s other witness, said that art should “arouse an unusual emotional reaction” and “[stir] the esthetics, the sense of beauty.” …

Every work [by Brancusi] was unique and made of a different material, with different proportions and a different harmony. Brancusi had carved variations of the Bird out of white, yellow, and black marble and bronze of varying composition, each time coaxing the stone or the metal to reveal something new about the form. As Brancusi explained, all of those pieces were part of the same search: “All my life I’ve been looking for one thing, the essence of flight.” …

The court’s sensibility favored Brancusi. In its decision of November 1928, drafted by Judge Waite, the court held:

The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.

Judge Waite’s decision was seen as a victory not only for Brancusi but also for avant-garde art, because it dismissed the Olivotti requirement and recognized the importance of a new school that “portray[ed] abstract ideas rather than … imitate natural objects.” …

But the decision’s focus on the decorative qualities of the Bird made the ruling just as perishable as the standard in the 12-year-old one it replaced. And its reliance on the judges’ personal taste made its application perhaps more arbitrary and restrictive. Many of the works that made the renown of Duchamp, the chaperon of the Bird on its trip to New York and one of its staunchest defenders, would not have passed the test, for example. Duchamp’s “ready-made” sculptures of a bottle rack (Bottle Dryer, 1914) and a urinal (Fountain, 1917), objects he borrowed from daily life and, with more than a hint of irony, labeled works of art, would not have satisfied Judge Waite’s taste for the “beautiful,” “symmetrical,” and “ornamental.”

The Brancusi decision may have done away with the requirement that sculptures must be figurative to be art, but it took years for customs law to shed other unreasonable limitations on the free import of artwork. In 1931, tapestries were deemed dutiable because they were made of wool – the material determined the artistic merit. In 1971, the customs court found that six carved door panels destined for a church were dutiable because, as part of the doors, they were utilitarian objects. It wasn’t for 61 years, until the Harmonized Tariff Schedule of 1989, that customs law allowed free entry to works that are both artistic and functional.

Bird in Flight, Brancusi, & US Customs law Read More »