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Posted by Orin Kerr

I have often blogged about the two-step process for executing computer warrants. (Indeed, I did so as recently as this morning.) On Monday, the U.S. Court of Appeals for the 11th Circuit suggested that the Fourth Amendment may impose significant limits on the two-step process in the specific context of search warrants for social media accounts. The case is United States v. Blake.

In Blake, two defendants, Dontavious Blake and Tara Jo Moore, were allegedly running a prostitution ring. The government obtained search warrants for Microsoft email accounts Blake and Moore used, as well as for the contents of Moore’s Facebook account. The email warrants required Microsoft to go through the accounts and find emails responsive to the warrant and turn only those over. The Facebook warrants required Facebook to hand over the full contents of the account and to then let the agents search it for the evidence of crime.

In an opinion by Judge Ed Carnes, the 11th Circuit concluded that the Microsoft warrants satisfied the Fourth Amendment but suggested that the Facebook warrants may not. Here’s the court rejecting Moore’s email warrant challenge:

The Microsoft warrant [for Moore’s e-mail account] complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

In a footnote, the court added:

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.

The court then suggested that the two-stage Facebook warrants may have violated the Fourth Amendment, although the court did not rule on the issue because the good-faith exception to the exclusionary rule applied. From the opinion:

The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account. See p. 4, above. And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers.

And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.” See Coolidge, 403 U.S. at 467, 91 S. Ct. at 2038; cf. Riley v. California, 573 U.S. __, 134 S. Ct. 2473, 2488–91 (2014) (“The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions …”).

We are not convinced that the cases the government relies on, which involve seizing an entire hard drive located in the defendant’s home and then later searching it at the government’s offices, are applicable in the social media account context. See, e.g., United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011). The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data. See generally Information for Law Enforcement Authorities, Facebook, http://bit.ly/QkrAHX (last visited July 27, 2017). That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015. United States Law Enforcement Requests for Data, Facebook, http://bit.ly/2aICDHg (last visited July 27, 2017).

This is technically only dicta — the court didn’t officially rule on the question — as the good-faith exception applied and the court didn’t need to decide exactly where the Fourth Amendment line is:

While the warrants may have violated the particularity requirement, whether they did is not an open-and-shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid.

As dicta, though, I wonder if matters are as simple as the 11th Circuit thinks. The court writes:

The government need only send a request with the specific data sought and Facebook will respond with precisely that data. See generally Information for Law Enforcement Authorities, Facebook, http://bit.ly/QkrAHX (last visited July 27, 2017).

The absence of a pincite or parenthetical is telling here. Facebook’s guide for law enforcement authorities is just a pretty generic four-page summary of the Stored Communications Act. It doesn’t discuss Facebook’s ability to screen through data and find the information responsive to a warrant.

Granted, some limits — such as date restrictions — are easy to apply. But consider the 11th Circuit’s suggestion that “the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers.” How is Facebook supposed to know which messages are from people suspected of being prostitutes or customers? Is the warrant supposed to give Facebook a list of specific suspected prostitutes and customers, such that only messages to and from them (from Facebook accounts known in advance, I gather) can be legally turned over to the government? If so, that seems problematic to me. The point of a warrant is to discover evidence in the place to be searched. I don’t see why relevant evidence involving then-unknown suspects or customers should be off-limits.

I’m reminded of the litigation back in 2014 reviewing Magistrate Judge John Facciola’s ruling that had suggested Internet providers could do the screening for emails responsive to email warrants. The district court rejected Facciola’s approach, ending the litigation. In any event, it will be interesting to see how Facebook and other providers respond to the suggestions in the 11th Circuit’s opinion.

Finally, I think we can see the Blake opinion and Friday’s D.C. Circuit opinion in Griffith as reflecting significant interest among judges concerning how to limit the scope of computer warrants. Both of them are suggesting limits, although neither are all that clear on what the limits are. I agree with the judges’ apparent goal, certainly, although the key question is how to get there. You can read here and here for my views for how best to do it.

My upcoming speaking engagements

Aug. 22nd, 2017 03:05 pm
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Posted by Ilya Somin

For readers who may be interested, here are my upcoming speaking engagements for the next several months. All are free and open to the public, unless otherwise noted.

August 28, Cato Institute, Washington DC, 6:30-7:30 PM: panel on “The Politics of Game of Thrones.” Other participants include Alyssa Rosenberg (Washington Post), Peter Suderman (Reason), and Matthew Yglesias (Vox). Registration and additional information is available here.

September 1, American Political Science Association Annual Meeting, San Francisco, 2-3:30 PM: “How the Size and Scope of Government Undermines the Rule of Law,” panel on “Challenges to the Rule of Law.” Other participants include Daniel Barnhizer (Michigan State, moderator), Laurence Claus (University of San Diego), Daniel Lowenstein (UCLA), and Deanell Tacha (Pepperdine). This event is only open to paying participants in the APSA conference.

September 8, Cornell Law School, Ithaca, NY, noon-1:30 PM: Panel on the travel ban case currently before the Supreme Court. Other participants are Michael Dorf (Cornell Law School) and Eric Posner (University of Chicago Law School). This event is co-sponsored by Cornell Law School, the Federalist Society, and the American Constitution Society.

September 21, University of Baltimore School of Law, Baltimore, MD, noon to 1:15 PM. “Federalism and Sanctuary Cities.” With commentary by Prof. Garrett Epps of the University of Baltimore. Sponsored by the University of Baltimore Federalist Society.

September 28, University of Arizona James E. Rogers College of Law, noon-1 PM (tentative time): “Eminent Domain and the Border Wall.” Second speaker TBA. Co-sponsored by the University of Arizona Federalist Society, the Native American Law Student Association and the Indigenous People Law and Policy Program.

November 9, North Carolina State University, School of Public and International Affairs, Raleigh, NC, time TBA: Talk on constitutional property rights. More details of this event will be forthcoming.

November 16, Federalist Society National Lawyers Convention, Washington, DC, 11:45 AM-1:30 PM. Panel on potential cross-idoelogical cooperation on federalism. Other participants include Prof. John McGinnis (Northwestern University) and two others TBD. This even is only open to paying attendees of the Federalist Society Convention, though members of the media are usually able to attend for free.

[syndicated profile] volokh_conspiracy_feed

Posted by Orin Kerr

The U.S. Court of Appeals for the D.C. Circuit handed down an important computer search case Friday, United States v. Griffith. The case is about computer search warrants, and specifically whether they can authorize a seizure of all devices that investigators discover that might contain the evidence sought. The frustrating part of the opinion is that there are a few different ways to interpret it, and I’m not sure which way is right. I thought I would explain why the case is important, why I’m not sure how to interpret it, and how it is in tension with other decisions.

I. The Facts

The facts of the case are simple. The police obtained a search warrant to search the home of a gang member suspected of involvement in a homicide. The warrant permitted the government to seize electronic storage devices in the home. The thinking was that gang members share a lot of information about their crimes, and that information was likely to be on their electronic devices such as their cellphones. When the agents went to the house to execute the warrant, the defendant saw the police coming and tossed a gun out the window.

The agents executed the warrant and seized six cellphones and a tablet computer in addition to the tossed gun. At that point, the case turned into a gun case instead of a homicide or computer search case. The government charged Griffith with being a felon in possession of a firearm. It has not brought any charges relating to the cellphones or tablet computer, which were not introduced into evidence in the case.

In the new decision, authored by Judge Srinivasan and joined by Judge Pillard, the court suppresses the gun because the warrant for electronic storage devices lacked probable cause and was overbroad. Discovery of the gun was the fruit of the unconstitutional warrant search, the court reasons, so the gun is suppressed. Judge Brown dissented, reasoning that the good faith exception to the exclusionary rule should apply.

Srinivasan’s opinion identifies two fundamental flaws with the warrant. First, the warrant lacked probable cause because the affidavit did not provide sufficient basis to conclude that evidence of the crime would be in the home. In particular, there wasn’t specific reason to think the defendant had a phone or computer; there wasn’t specific reason the person’s cellphones or computer would be in the home; and there wasn’t sufficient reason to think any phones or computers in the home had evidence of that crime. I find the first point quite unpersuasive but the latter two points plausible. I have some quibbles with this part of the opinion, but it seems pretty fact-specific.

II. The Important Reasoning in the Alternative Holding

It’s the alternative holding that strikes me as really important. In the next part of the opinion, the court rules that the warrant was also defective because it allowed the government to seize all devices found in the place to be searched. According to Srinivasan, the police could seize only specific devices, not all of them. Here’s the analysis:

The warrant in this case authorized police to search for and seize “all electronic devices to include but not limited to cellular telephone(s), computer(s), electronic tablet(s), devices capable of storing digital images (to include, but not limited to, PDAs, CDs, DVD’s [and] jump/zip drives).” A. 36. . . . [T]he warrant did not stop with any devices owned by Griffith, which already would have gone too far. It broadly authorized seizure of all cell phones and electronic devices, without regard to ownership. That expansive sweep far outstripped the police’s proffered justification for entering the home—viz., to recover any devices owned by Griffith.

Indeed, the terms of the warrant allowed officers unfettered access to any electronic device in the apartment even if police knew the device belonged to someone other than Griffith. He shared the apartment with Lewis, his girlfriend, and the warrant authorized police to search for and seize all of her electronic devices. For instance, if officers executing the warrant had seen Lewis using her cell phone in her apartment, the warrant would have authorized them to seize that phone. Yet the police unsurprisingly offered no explanation of why Lewis’s devices could have been appropriately seized.

The warrant’s overbreadth is particularly notable because police sought to seize otherwise lawful objects: electronic devices. Courts have allowed more latitude in connection with searches for contraband items like “weapons [or] narcotics.” Stanford, 379 U.S. at 486 (internal quotation marks omitted). But the understanding is different when police seize “innocuous” objects. See Andresen v. Maryland, 427 U.S. 463,
482 n.11 (1976). Those circumstances call for special “care to assure [the search is] conducted in a manner that minimizes unwarranted intrusions upon privacy.” Id.; see also 2 LaFave, Search & Seizure § 4.6(d).

Of course, even with searches of lawful objects, we may allow a broader sweep when a reasonable investigation cannot produce a more particular description. See Andresen, 427 U.S. at 480 n.10. There may be circumstances in which police have probable cause to seize a phone, yet still lack specific information about the phone’s make or model. For example, police might learn a suspect uses a phone through an informant, and thus have no ability to describe the specific characteristics of any phone belonging to him. In that sort of situation, we recognize that some innocuous devices would need to “be examined, at least cursorily,” to determine their relevance to the investigation. Id. at 482 n.11.

But even then, it is no answer to confer a blanket authorization to search for and seize all electronic devices. The warrant must be tailored to the justifications for entering the home. In this case, the warrant should have limited the scope of permissible seizure to devices owned by Griffith, or devices linked to the shooting. The Department of Justice in fact encourages use of that sort of approach in certain situations. See Office of Legal Educ., Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Crim. Div., Dep’t of Justice 69-72 (2015), https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf.

Such a warrant would have enabled police to sweep more broadly when executing the search, but would have disabled them from seizing devices plainly unrelated to the crime. Officers, for example, could have examined a device they initially thought might belong to Griffith, but they could not have seized the device if they became aware it belonged to Lewis. That sort of approach would “minimize[] unwarranted
intrusions upon privacy.” Andresen, 427 U.S. at 482 n.11.

The government does not deny that the warrant in this case would be invalid insofar as it authorized the seizure of all devices found in the apartment without regard to ownership. The government instead argues that, for various reasons, the warrant should be read more narrowly. We find those arguments unpersuasive. . . .

Nor does the government allay our concerns by suggesting it would have attempted to determine which of the seized devices in fact belonged to Griffith and would have sought a separate warrant to search the contents of those — and only those — devices. As an initial matter, the warrant, according to its terms, seemingly would have authorized police to search any electronic devices in the residence. At the federal level, Federal Rule of Criminal Procedure 41 provides that, “[u]nless otherwise specified,” a warrant authorizing seizure of electronic storage media also “authorizes a later review of the media or information consistent with the warrant.” Fed. R. Crim. P. 41(e)(2)(B). The warrant here included no express limitations on agents’ authority to examine any electronic devices seized. To the extent the officers showed restraint when executing the search, “this restraint was imposed by the
agents themselves, not by a judicial officer.” Groh, 540 U.S. at 561 (internal quotation marks omitted).

In any event, our holding does not turn on whether the police had the power to search the devices’ digital contents. The police lacked probable cause to seize all electronic devices in the home in the first place. The warrant was invalidly overbroad in enabling officers to do so.

III. Some background on computer search and seizure

To understand the significance of Griffith, it helps to know some background principles of computer search and seizure law. Computer searches are generally executed in two steps. The idea is that when the government establishes probable cause to believe that there is evidence of a crime in the place to be searched that might be stored in a computer, there is no practical way to search the computers found on site to figure out which ones contain the evidence sought. It just takes too long. Given that, courts have allowed the government to seize all the electronic storage devices found onsite and to take them back to the government’s lab for analysis. It’s an overseizure, the thinking runs, but there’s no practical way to avoid that. It’s the least bad way to make sure the government can search for the evidence under the warrant, so it is reasonable under the Fourth Amendment.

As I wrote in a 2005 article, “Search Warrants in an Era of Digital Evidence,” this creates a puzzle for how to draft computer warrants. The question is, should the particular description of the thing to be seized refer to what is seized at the physical search stage (when all computers will have to be seized), or should it refer to what is seized at the electronic search stage (when the seized computers are searched for the specific information to be seized)?

Each answer has problems. If the warrant uses the particular description at the physical search stage, then the warrant doesn’t seem to offer any guidance about what the police will look for at the electronic search stage and can be overbroad because it’s not guiding the electronic search stage. If the warrant uses the particular description at the electronic search stage, then the government isn’t saying what it is seizing at the physical search stage and its execution will be broader than the warrant permits on its face. To avoid these problems, I recommended that computer warrants should particularly describe the item to be seized at both the physical and electronic search stages. That way, the warrant explicitly covers what is happening at both steps.

The caselaw has so far been too deferential to the government to require my approach, however. Courts have approved warrants that just describe the evidence to be seized at the electronic search stage, reasoning that the overseizure at the physical search stage is implicit in the two-step warrant method and is reasonable. Courts have also approved warrants that just describe the evidence to be seized at the physical search stage, reasoning that the warrant should be read as implicitly only allowing the physical computers to be searched for the specific evidence sought at the electronic search stage.

IV. Three views of the Griffith case

Okay, enough background. Let’s go back to the Griffith case. I’m not sure what to make of the critical alternative holding because different parts of the opinion seem to be hinting at three different rationales. I’ll cover each in turn.

First, parts of the alternative holding seem to be saying that the government erred by describing the things to be seized only at the physical search stage. The warrant said that the government could seize all electronic storage devices. But the warrant didn’t say what it could search the computers for at the electronic search stage, suggesting that they could be searched for anything without limitation — which would be too broad. See Slip Op. at 20 (“The warrant here included no express limitations on agents’ authority to examine any electronic devices seized.”) Most courts have gone out of their way to read such warrants as implicitly being limited to searching devices for specific evidence. See, e.g., United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009) (construing warrant that authorized seizure of “all computer records” as implicitly limiting a search of computer records to drug trafficking records).

From that perspective, maybe Griffith is just being less forgiving in terms of the two-stage warrant process than cases such as Burgess. If that’s the right reading of the case, it makes Griffith important but also something that is easy to draft around. For example, maybe the solution is something like the explicit two-stage particularity description I recommended in 2005. I tend to think that’s the most plausible reading of the opinion. But I’m not sure.

Second, parts of the alternative holding seem to be imposing a limit on overseizure at the physical search stage. That is, parts of the opinion seem to be saying that overseizure itself isn’t permitted: The government can’t take phones that aren’t likely to have the sought-after evidence on them. If any phone has the evidence, it’s likely to be Griffith’s phone. Maybe the court is saying that the government can’t plan to seize all devices when some devices are more likely to have evidence on them than others.

From that perspective, Griffith may be a bigger deal. Maybe it is pushing back against the established caselaw allowing the overseizure at the physical search stage. If the court is taking that view, I should add, I think it is wrong: I happen to think that overseizure is necessary and that courts should allow it, because you never know where the electronic evidence might be. See the details in this recent article. But I’m not sure the court is making that argument.

Finally, a third reading of Griffith‘s alternative holding is that the case reflects an odd way to tie probable cause and particularity. The ordinary way that warrants work is that the affidavit offers reason to think evidence might be in the place to be searched. Warrants then allow a search of that place for the evidence. Parts of Griffith suggest a narrower view, that maybe the government has to focus its search based on the most plausible theory for where the evidence might be. In particular, the idea that the government could seize only a phone that belonged to Griffith seems peculiar to me. If the government established probable cause to believe there were records of the crime in the apartment, who cares if those records are on a phone that “belongs” to Griffith or stored in some other device?

In particular, it’s not clear to me why the court thinks only a phone that belongs to Griffith could be seized. The court writes: “Officers, for example, could have examined a device they initially thought might belong to Griffith, but they could not have seized the device if they became aware it belonged to Lewis.” But that makes no sense to me. Griffith might have used Lewis’s phone. He may have used a bunch of different phones. Or there may be messages about the crime on someone else’s phone, such as messages Griffith sent to Lewis that are stored on her phone.

It’s true that the affidavit doesn’t give specific reason to think those are the case. But I don’t see how that is relevant. The point of an affidavit is to establish probable cause that evidence is in the place to be searched, not to establish probable cause about specifically where in the place to be searched the evidence will be. The government ordinarily can search anywhere in the place to be searched for the evidence sought regardless of what containers it must open: “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found, and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.” United States v. Ross, 456 U.S. 798, 820-21 (1982). Under that traditional principle, it just doesn’t matter who owns the property searched so long as it is found in the place to be searched. See Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (“[N]either Ross itself nor the historical evidence it relied upon admits of a distinction among packages or containers based on ownership.”).

V. Concluding thoughts

I’m curious to know whether readers who made it through the opinion have a good sense of which of the three rationales named above is driving the court’s alternative holding. It’s totally possible that is clear to others, so a sense of where the crowd of readers is on this question would be very helpful.

Two additional thoughts. First, the good faith analysis for the exclusionary rule part of the opinion doesn’t seem like a particularly strong match for the claimed overbreadth defect in the warrant. The probable cause defect is at least a causal link to the warrant: Without probable cause, the government couldn’t get a warrant. And without a warrant, the government wouldn’t have approached the house and wouldn’t have seen Griffith toss the gun. I’m not sure the lack of probable cause makes suppression appropriate under the good faith exception, but it’s a debatable issue.

With the overbreadth defect, however, the claimed defect is completely unrelated to the discovery of the evidence. When Griffith saw the police coming and tossed the gun out the window, he had no idea how the warrant was drafted. Given that exclusionary rule caselaw generally requires a causal link between the constitutional defect and suppression of evidence, see Hudson v. Michigan, 547 U.S. 586, 592 (2006), I don’t quite see how suppression is appropriate for that particular defect.

Finally, the briefing and opinion suggest in some places that the government planned on getting a second warrant to search the devices. I have heard secondhand that some magistrate judges prefer to execute the two-stage computer warrant process using two different warrants. First, the magistrate judges sign a warrant for the physical seizure of the devices that doesn’t authorize an electronic search of them. Next, the magistrate judge signs a second warrant, for specific devices, that authorize an electronic search. Using two warrants to do the work of one warrant makes no sense to me. To the extent Griffith may reflect the D.C. Circuit’s rejection of the two-warrant approach some magistrate judges apparently favor, that seems like an unobjectionable development.

ST:TNG First and Last Seasons

Aug. 22nd, 2017 07:57 am
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Posted by Mike Glyer

Curated by Carl Slaughter: (1) Next Generation cast on what they took and tried to take from the set after the series wrapped. (2) Denise Crosby on why she left Next Generation after one season. (3) Gates McFadden on why … Continue reading
[syndicated profile] file770_feed

Posted by Mike Glyer

(1) HELP COMING FOR INDIE AUTHORS. Brian Keene, in the August 17 episode of his podcast The Horror Show, mentioned a new resource for librarians. Dann explains: Small press and indie authors face the double problems of getting bookstores to … Continue reading
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Posted by Victor Mair

The theme of today's post:  MSM chǎomiàn / Cant. caau2min6  trad. 炒麵 / simpl. 炒面 ("fried noodles").

When I was a wee lad growing up in East Canton (formerly Osnaburg; population about a thousand), Ohio, all that I knew of Chinese food came out of cans, and it was branded either as La Choy or Chun King.  The noodles were short, brown, hard, and crunchy, the vegetables were rather tasteless (with mung bean sprouts predominating and plenty of somewhat rubbery sliced mushrooms), all in a mucilaginous matrix of thick, starchy sauce.  But it was a lot of fun to prepare and eat because of the way it came in three cans and was so very exotic — not like the daily fare of meat, potatoes, peas, beans, and bread favored by Midwesterners.  Oh, and the watery, caramel colored soy sauce was so cloyingly salty.

The only exception was that once a year our Mom would alternate taking one of the seven siblings to the big city of Canton (population about eighty thousand) five miles to the west and would treat us to a Chinese restaurant meal.  I think the owners were the only Chinese in the city.  The two things that impressed me most were how dark and mysterious the room was in the unmarked, old house where the restaurant was located and how the egg foo young (and I just loved the sound of that name!), which was so much better than the canned chicken chow mein we ate at home, was served to us on a fancy, footed platter with a silver cover.  It was always a very special moment when the waiter uncovered the egg foo young and I smelled its extraordinary aroma.

Here's a description of an intrepid foodie preparing and eating today's version of La Choy's Chicken Chow Mein, which is still apparently "available at supermarkets everywhere":

La Choy’s chow mein dinner comes in three separate cans. Following the instructions faithfully I first heated the chicken and gravy mixture from one can in the microwave for two minutes, stirring in between. Right off the bat, the gelatinous concoction began making popping sounds, like it was exploding. While that was going on, I opened the can of vegetables—carrots, water chestnuts, etc.—drained them in a colander, then mixed them in with the chicken and gravy once they were done. This combo gets heated for three minutes, or until hot. Then you sprinkle on the dry noodles, which come in a can of their own.

Digging in, I found the dish unbelievably bland. The vegetables, such as they were, were indistinguishable from each other. The chicken was fairly unrecognizable as chicken, too. The noodles were the best part by far: dark, even burned-looking, deliciously crispy. An hour or so later, alas, I “had to go to the bathroom.” Badly. And, I can’t help thinking it was mainly because of the chow mein feast. Either my constitution is much more delicate than when I was a kid—or La Choy just ain’t no Chun King.

That's from "Bygone Bites: A Review of La Choy’s Chow Mein:  Glenn and Carol do a side-by-side critique of these canned fake-Asian noodles. Cue the nostalgia." Carol Shih [and Glenn Hunter], D Magazine (3/4/14)

Here are some interesting facts about La Choy:

The company was founded in 1922 by Dr. Ilhan New (유일한), later founder of Yuhan Corporation in South Korea; and Wally Smith from the University of Michigan. The first product, canned mung bean sprouts, was originally sold in Smith's Detroit, Michigan, grocery store.

New left the company for personal reasons in 1930. Smith was killed by lightning in 1937.

And Chun King:

Chun King was an American line of canned Chinese food products founded in the 1940s by Jeno Paulucci, who also developed Jeno's Pizza Rolls and frozen pizza, and the Michelina's brand of frozen food products, among many others. By 1962, Chun King was bringing in $30 million in annual revenue and accounted for half of all U.S. sales of prepared Chinese food. Chun King was sold to the R. J. Reynolds Tobacco Company, in 1966 for $63 million.

l won't go into the history of how the two companies competed and merged, nor how they were both bought by large food conglomerates.  What's remarkable is that, in one or another guise, they survived for so long even after authentic Chinese food became widely available in America.

What prompted this post in the first place was the following photograph, sent to me by fintano:

IMG_3195

The name of the restaurant is Chóngqìng xiǎomiàn 重慶小面 ("Chongqing / Chungking noodles" [lit., "small noodles"]).

Maidhc comments on the feelings evoked by the photograph:

I have a vague recollection from my youth that Stan Freberg made commercials for Chun King (which was founded by an Italian), and even as a child I loved Stan Freberg, and more so as an adult.

See Stan Freberg Presents the Chun King Chow Mein Hour in this Wikipedia article.  This was during the advertising part of his career, which was later than most of his recordings.

At any rate this sign made me think of the old Chun King Chow Mein commercials and I believe they sponsored a pavilion at the Seattle World's Fair. I hate to think what kind of food they served there. Thankfully at least on the west coast we can now get some more authentic Chinese food.

I never actually ate Chun King Chow Mein, because my mother knew how to cook fairly authentic basic Chinese food, and that's what I had growing up. I was eating with chopsticks from age 7 or so.

I don't know if the people who run this restaurant chain know of the ancient memories they are stirring.

I was just looking through the Yelp reviews and I found this:

"some dishes may be hella ma la hot"

Is this the most SF Bay Area sentence ever?

Chow mein from a can ≠ chǎomiàn / caau2min6 from a wok ≠ Chóngqìng xiǎomiàn 重慶小面 ("Chongqing / Chungking noodles") in a San Francisco Sichuanese restaurant, though they all have their own charms.

Brian Aldiss (1925-2017)

Aug. 21st, 2017 11:12 pm
[syndicated profile] file770_feed

Posted by Mike Glyer

Brian Aldiss, who marked the start of his career with a nomination for the Best New Writer Hugo (1959), gained a place in the SF Hall of Fame (2004), and received honors from the Queen (2005), died in his sleep … Continue reading

2017 WSFA Small Press Award Finalists

Aug. 21st, 2017 04:29 pm
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Posted by Mike Glyer

The Washington Science Fiction Association (WSFA) has announced the finalists for the 2017 WSFA Small Press Award: “Foxfire, Foxfire,” by Yoon Ha Lee, published in Beneath Ceaseless Skies, ed. by Scott H. Andrews, (March 2016); “Jupiter or Bust,” by Brad … Continue reading
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Posted by Eugene Volokh

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: a special show featuring the Harte family, whose home was raided by a SWAT team after police found tea leaves in their trash. Why were police looking in their trash? Because months earlier, they’d visited a garden store. Their attorney, Rob Bernstein of Kirkland & Ellis, joins us as well. Click here for iTunes.

  • Citizen investigator: Crooked FBI agent gave mobster (Gregory “The Grim Reaper” Scarpa Sr.) info that he used to murder mob rivals. Even if that info was originally compiled for law enforcement purposes (and so exempt from the Freedom of Information Act), it was used for illegal purposes, and the FBI must turn related records over. D.C. Circuit: Not so.
  • Does ought imply can? Both Immanuel Kant and the D.C. Circuit say yes, and the latter vacates a writ of mandamus that the district court issued without expressly considering whether it was even possible for an agency to comply with it. (A dissenting opinion argues that compliance seems plenty possible and there was no need for the lower court to have made an express finding about it.)
  • Meat passes government inspection, is sold to middleman. The middleman repackages the meat, and labels it — without the supplier’s permission — with the inspection number assigned by the government to the supplier. D.C. Circuit: Which is misleading and unlawful. Dissent: “It seems to me a giant step in the progress of the administrative state to permit agencies to enforce regulations that do not exist.”
  • In exchange for $4k donation to charity, Lee, Mass., police chief derails prosecution of bed-and-breakfast owners with prostitution side business. The chief pockets the donation. First Circuit: Extortion conviction affirmed.
  • Man downloads Uber smartphone app, hails a ride 10 times, files price-fixing class action. (Uber then hires private investigators to dig up “derogatories” on plaintiff.) District court: No arbitration; the clause users agree to is not reasonably conspicuous. Second Circuit: Reversed. You gotta read the fine print.
  • Three Buffalo, N.Y., police officers allegedly participate in shooting of arrestee with BB gun. They’re indicted and enter a joint defense agreement (JDA), but one decides to plead guilty and testify against the other two. Other two: He can’t testify about a conversation we had after the JDA but before he began cooperating with the prosecution. Second Circuit: He can.
  • Security guard at nuclear facility allegedly suffers from paranoid delusions, abuses substances. He’s fired. Former guard: Which violates the Americans with Disabilities Act. Third Circuit: Nuclear security regulations trump the ADA.
  • Allegation: Zoo in Cherokee, N.C., keeps grizzly bears in concrete pits without shade or vegetation. Zoo: We only call them grizzlies for advertising purposes; they are actually European brown bears and so are unprotected by the Endangered Species Act. Fourth Circuit: They’re grizzlies, and (over a dissent) the zoo’s husbandry practices could be unlawful.
  • On visa application, Algerian immigrant, a North Carolina cabbie, reports he’s never been cited, arrested or charged. Yikes! He’s got some traffic tickets. (Also, he apparently has Islamic State propaganda videos posted on his Facebook page.) Feds: Deport him. Fourth Circuit: The trial judge made impermissible comments to the jury about the visa program. Conviction vacated.
  • Orthodox Jewish family sues school board under the Individuals with Disabilities Education Act (IDEA), alleging that the individualized education program developed for their child with Down syndrome is insufficient because it does not provide religious or cultural instruction. Fourth Circuit: The secular education offered was all the IDEA required.
  • Professor: The major problem with slavery was that it violated slaves’ right of free association to not “ ‘associate’ with their masters.” Other than that it wasn’t so bad. New York Times: Professor says slavery wasn’t so bad. Fifth Circuit (2016): Could be defamation. Fifth Circuit (2017): Still could be.
  • Allegation: Suspected drunk driver (a retired cop and disabled veteran) declines to walk toward Round Rock, Tex., officers, attempts to pull his (recently operated on) arm away from an officer’s grasp. They take him to ground, administer knee strikes, break his back. Police: We were worried he might stagger onto the road, so we had to subdue him. Fifth Circuit (over a dissent): No qualified immunity.
  • Blood on the shirt of Battle Creek, Mich., bartender stabbed to death in 1995 does not match the victim or the defendant; blood on the bar matches the defendant, as well as millions of other people. The jury convicts. Sixth Circuit: Release the defendant unconditionally.
  • Attorney: North Dakota’s bar association fees automatically include funding for non-germane political activity, forcing me to take a manual deduction if I want to opt out of the bar’s political speech. But the First Amendment doesn’t allow them to put the burden of opting out of these activities on me; they should be required to ask me if I want to opt in. Eighth Circuit: Dude, you’re the one filling out the form and writing the check. If you write the check for the full amount, that’s opting in.
  • Motel operator: Beatrice, Neb., officials condemned motel for code violations that weren’t all that serious (in the view of the city’s building inspector) — all as part of an evil scheme of vengeance for the operator’s protected free speech. Eighth Circuit: Evil scheme or no, those were real code violations, so the officials all have qualified immunity.
  • Citizens would like to hold signs decrying homosexuality at military funerals, but Nebraska law forbids them from protesting within a city block. A constitutional violation? No. “The First Amendment guarantees free speech, not forced listeners,” says the Eighth Circuit; the law “strikes a balance between these competing interests of law-abiding speakers and unwilling listeners.”
  • Online white pages company (that also posts credit scores, among other things) inaccurately listed man’s age, marital status and other background data. Man: Which harmed my employment prospects and caused me anxiety. Ninth Circuit (on remand from the Supremes): He can sue.
  • Man sentenced to death by state court for 1999 murder outside Tulsa, Okla. But wait! He’s an Indian (Muscogee (Creek) Nation), and the murder happened in Indian country — shouldn’t he have been tried in federal, not state, court? Tenth Circuit: Indeed. Any land within the 1866 boundaries of the Creek Nation is Indian country, including most of present-day Oklahoma (even land owned by non-Indians) and the location of this particular murder. Conviction tossed, and it’s up to the feds to prosecute him.

When the Supreme Court ruled, in 1976, that bank records are categorically excluded from Fourth Amendment protection, the justices envisioned the piecemeal collection of records to assist criminal prosecutions. Today, that ruling— combined with civil forfeiture laws— has given federal agents free rein to troll virtually every American’s bank account looking for property to forfeit — without warrants and without criminal charges. In a recent amicus brief, IJ urges the Supreme Court to consider this history when it decides next year whether cellphone records (so-called “cell site-location data”) are protected by the Fourth Amendment.

[syndicated profile] volokh_conspiracy_feed

Posted by Eugene Volokh

(IStock)

Can someone be liable for “intentional interference with business relations” for accurately informing people about facts about the plaintiff, which then leads them to stop doing business with the plaintiff? I think the answer has to be no, both because of the First Amendment and as a matter of sound tort law principles. Some broad definitions of the interference tort might seem to allow such liability, but recent cases rightly reject it. I’ve blogged about this before as to the Moore v. Hoff/Johnny Northside blogger case, and I came across a couple of cases from the past few months that likewise protect the right to convey truthful information in such situations.

1. In Nieto v. Cherry Creek Properties PM, LLC, 2017 WL 3494075 (Colo. Dist. Ct.), Will Nieto was fired by Cherry Creek, a property management company for which he worked as a broker; this firing led to a bunch of legal claims on both sides, including this one:

The most significant Counterclaim asserted by Defendants is the claim that Nieto defamed [Cherry Creek owner Constantine] Sarganis when he surreptitiously sent letters and e-mails to various employees and relatives of Sarganis notifying them of a 1997 arrest, guilty plea, and deferred judgment probationary sentence for third degree assault involving Sarganis and his wife….

Sarganis, while acknowledging that he did enter a guilty plea to third degree assault in 1997 and did complete a term of probation pursuant to a deferred judgment sentence, argued that once he completed the term of probation, the plea was withdrawn. He asserts that it was defamatory for Nieto to communicate with others about this arrest and plea. Sarganis contends that highlighting portions of the record, referring to it as an act of domestic violence and adding information about the definition of third degree assault constitute defamation. Additionally, there were some examples of correspondence where the information concerning withdrawal of the plea was deleted.

No dice, said the court:

While the Court finds that such information may have been embarrassing to Sarganis, the Court concludes thahe information contained in the communications sent by Nieto was substantially true. The fact that some of the communications may also have included definitions of third degree assault, or may have omitted the ultimate dismissal of the case does not change this finding.

(Note that if the dismissal had been based on a factual exoneration, the matter might have been different — a few cases suggest that reporting on charges after the accused had been exonerated, and not mentioning the exoneration, might be libelous; but here the dismissal was just based on Sarganis’s having served out his probation.)

Nor could Sarganis prevail on the theory that the e-mails constituted “intentional interference with prospective business relations”:

[“]To allow a [party] to establish a tort claim by proving merely that a particular motive accompanied protected speech, … might well inhibit the robust debate that the First Amendment seeks to protect.[”] Thus, even where the complaining party establishes that ill will is the motivation behind speech which forms the basis of tortious interference claim “courts have concluded that such lawful activity is insufficient to establish the required element of improper conduct.” Since the Court determined that the alleged defamation was based on truthful statements, such a finding necessarily means that Defendants cannot sustain their tortious interference claim based on the same communications.

2. In Calabro v. Northern Trust Corp., the Illinois Appellate Court likewise concluded that true statements couldn’t lead to liability under the interference with business relations tort. According to Calabro’s petition, Calabro was actively recruited by Northern Trust Investments to leave his current employer and become chief compliance officer for Northern Trust. But two weeks after he moved to Illinois and started at Northern Trust, his supervisor and one of Northern’s lawyers met with Calabro and

stated they had been informed that Calabro had been removed from his role as the CCO of the Optimum Fund Trust (Optimum) during his employment with Delaware. They inquired why Calabro had not disclosed such information during the interview process.

Calabro responded that his role with Optimum was “just a small part” of his responsibilities as the deputy CCO for Delaware and that he was never asked questions during his interviews which would have elicited such information. Calabro further explained that he had not been disciplined or demoted as a result of his removal from Optimum and had continued working for Delaware “quite successfully” until his resignation to join Northern Trust. [Two weeks later], Northern Trust terminated Calabro because he had failed to disclose his role with Optimum on his résumé or at any time during the interview process.

Calabro tried to sue whoever it was who gave this information to Northern, and filed a petition asking for an order that Northern reveal the source:

Calabro asserts that the elements of intentional interference with employment relationship are: (1) reasonable expectation of continued employment; (2) knowledge of the business relationship by the interferer; (3) intentional interference; and (4) resultant damage. According to Calabro, the “falsity of an interfering statement is not one of those elements.”

But the court didn’t distinguish employment relationships from other business relationships, and concluded that true statements can’t be punished even when they are aimed at getting someone fired:

Illinois courts in employment and other contexts have consistently held that an intentional interference claim requires the provision of false information. See also Delloma v. Consolidation Coal Co. (7th Cir. 1993) (applying Illinois law; observing that “permitting recovery for tortious interference based on truthful statements would seem to raise significant First Amendment problems”).

Section 772 of the Restatement (Second) of Torts, provides additional insight on this issue. The section provides that “[o]ne who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other’s contractual relation, by giving the third person … truthful information.” Comment (b) to section 772 states, in part, that “[t]here is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another.” As noted in [an Illinois appellate case], “[w]hile our supreme court has not explicitly adopted section 772 of the Restatement, it continues to look to the Restatement for guidance in outlining the contours of tortious interference actions.”

(Note that there was no indication that Calabro’s firing was a breach of any binding contract between Northern Trust and Calabro: The restrictions on intentionally inducing a breach of a binding contract may sometimes be different from restrictions on intentionally inducing the termination of a contract that the induced party has every right to terminate, such as an at-will employment contract.)

* * *

Sounds right to me. Accurately conveying information to people is generally protected by the First Amendment. There may be a narrow exception to that rule for highly personal information that isn’t newsworthy or otherwise legitimately relevant to the parties, such as (in some instances) sexual or medical information; I’m generally skeptical of such a claimed exception, but quite a few courts have indeed expressly or implicitly recognized it. But that exception must be limited to such highly personal information and doesn’t extend to information about crimes (as in Nieto, see Gates v. Discovery Communications, Inc. (Cal. 2004) or the severing of earlier business relationships (as in Calabro).

[syndicated profile] file770_feed

Posted by Mike Glyer

Since last week, when the California Digital Library and the UC Riverside Library made available online nearly 6,000 photos taken by Jay Kay Klein at eight Worldcons in the Sixties, fans have voiced concerns that the names of the people … Continue reading
[syndicated profile] file770_feed

Posted by Mike Glyer

(1) IT’S ALWAYS NEWS TO SOMEONE. Some Filers have already traveled hundreds of miles to get in position to see the eclipse tomorrow, however, there might be somebody who’s just heard it’s about to happen. These NASA resources will help … Continue reading

2017 Baen Fantasy Adventure Award

Aug. 20th, 2017 09:35 pm
[syndicated profile] file770_feed

Posted by Mike Glyer

J.P. Sullivan won the 2017 Baen Fantasy Adventure Award with his short story “The Blue Widow.” Sullivan’s story was selected by Baen editorial staff. The announcement was made at Gen Con 50 on August 19. GRAND PRIZE: “The Blue Widow” … Continue reading

'Difficult to understate' correction

Aug. 20th, 2017 08:23 pm
[syndicated profile] languagelog_feed

Posted by Mark Liberman

Here the source of the inversion corrects it within a few minutes:

For discussion see
"'Cannot underestimate' = 'must not underestimate'?", 11/6/2008
"Misunderestimation", 4/4/2009
"Underestimate, overestimate, whatever", 3/23/2011
"'…not understating the threat", 6/5/2012
"Overestimating, underestimating, whatever", 1/11/2013
"'Impossible to understate' again", 3/1/2014
"The Estimation Game", 4/3/2014

…and many more

2016 Sidewise Awards

Aug. 20th, 2017 05:24 pm
[syndicated profile] file770_feed

Posted by Mike Glyer

The winners of the 2016 Sidewise Awards for Alternate History have been announced. Short Form (Tie) Daniel Bensen, “Treasure Fleet,” Tales from Alternate Earths, Inkling Press Adam Rovner, “What If the Jewish State Had Been Established in East Africa,” What … Continue reading
[syndicated profile] languagelog_feed

Posted by Victor Mair

Jonathan Benda posted this on Facebook recently:

Reading [Jan Blommaert's] _Language and Superdiversity_ in preparation for my Writing in Global Contexts course in the fall. Does anyone else think the following conclusions about this sign are somewhat wrongheaded?

Written with a calligraphic flair, the notice says:

gōngyù chūzū
shèbèi yīliú
shuǐdiàn quán bāo
měi yuè sānbǎi wǔshí yuán

公寓出租
設備一流
水电全包
每月三佰伍十元

apartment for rent
first-class furnishings
water and electricity included
350 Euros per month


Michael (Taffy) Cannings' response:

Wow, that's very thin evidence for a conclusion like that. The simplified diàn 電/电 is common in handwriting in Taiwan, and presumably among the diaspora too. Yuán 元 as a unit of currency is not unique to the PRC either, and the simplified form used here is really common in traditional characters (i.e., instead of 圓). Both handwriting simplifications predate the PRC character changes and indeed were probably the basis for those changes. The author may be right that the intended audience is made up of younger PRChinese, but that's simply an extrapolation of demographics rather than something implicit in the sign.

Mark Swofford provides an older example of this sort of confusion in this post:

"Mystery of old simplified Chinese characters?" (10/7/05)

I haven't lived in Taiwan continuously for a long period of time since 1970-72, but I still go back occasionally.  I can attest that almost no one except an obsessive compulsive like myself writes 臺灣 for Taiwan.  Nearly everybody writes 台灣 or 台湾.  It really doesn't matter, because the name does not mean "Terrace Bay" as the characters seem to indicate.  They are simply being used to transcribe the sounds of a non-Sinitic term, as I explained here:

"How to Forget Your Mother Tongue and Remember Your National Language"

The very name "Taiwan" is perhaps the best example to begin with. Superficially (according to the surface signification of the two characters with which the name is customarily written), "Taiwan" means "Terrace Bay." That sounds nice, even poetic, but it is an inauthentic etymology and has nothing whatsoever to do with the actual origins of the name. (This is a typical instance of the common fallacy of wàngwénshēngyì 望文生義, whereby the semantic qualities of Chinese characters interfere with the real meanings of the terms that they are being used to transcribe phonetically.) The true derivation of the name "Taiwan" is actually from the ethnonym of a tribe in the southwest part of the island in the area around Ping'an.4 As early as 1636, a Dutch missionary referred to this group as Taiouwang. From the name of the tribe, the Portuguese called the area around Ping'an as Tayowan, Taiyowan, Tyovon, Teijoan, Toyouan, and so forth. Indeed, already in his ship's log of 1622, the Dutchman Comelis Reijersen referred to the area as Teijoan and Taiyowan. Ming and later visitors to the island employed a plethora of sinographic transcriptions to refer to the area (superficially meaning "Terrace Nest Bay" [Taiwowan 臺窝灣], "Big Bay" [Dawan 大灣], "Terrace Officer" [Taiyuan 臺員], "Big Officer" [Dayuan 大員], "Big Circle" [Dayuan 大圓], "Ladder Nest Bay" [Tiwowan 梯窝灣], and so forth). Some of these transcriptions are clever, others are fantastic, but none of them should be taken seriously for their meanings.

As my Mom used to say when she couldn't get things through our thick skulls, "I can tell you till I'm blue in the face, but you just won't listen":  the sounds of Chinese words are more important than the characters used to write them, since the latter are comparatively adventitious and secondary, whereas the former are absolutely essential.

[syndicated profile] languagelog_feed

Posted by Mark Liberman

From P.D.:

Long time reader, first time caller, etc. etc. As an armchair linguistics fan and someone who gets his news primarily online rather than from cable news, I've been wondering how one ought to go about pronouncing the word "antifa." I'd like to discuss current events with friends without putting my foot in it, like the friend I once had who pronounced "archive" as though it were something you might chop up and put on a bagel with some cream cheese.

My impression is that Norma Loquendi in America seems mostly to have decided on [ˌæn'ti.fə] — first syllable "Ann", second syllable "tea", third syllable rhymes with "uh", with the main word stress on "tea", as in this 8/19/2017 ABC 20/20 segment:

But there's an alternative — so in this 8/19/2017 CNN story, Jake Tapper has something like ['æn.ti.fɐ], with intitial-syllable stress and more of a full vowel on the final syllable:

It's easy to see why people come out different ways on this one. The source word anti-fascist has primary stress on the third syllable and secondary stress on the first syllable. One approach would is to trim the pronunciation of anti-fascist to the portion corresponding to the spelling "antifa" — but this runs into the problem that  [æ] doesn't normally occur in English final open syllables. So the solution is to remove the stress from the third syllable, which shifts the main stress to the first syllable, and then either change the final vowel to one that can end a stressed syllable in English, or reduce it to schwa, or leave it in some kind of quasi-reduced limbo as Tapper does.

In the other direction, there's strong pressure to apply penultimate stress to vowel-final borrowed or constructed words in English, as in "Tiramisu" or "Samarra" or "NATO". So I'm predicting that  [æn'ti.fə]  is going to win in the end. But for now, at least, you can take your pick.

On a related note: is there a term of art for a mispronunciation borne of learning a word solely from written context, a sort of spoken eggcorn?

It's called a "spelling pronunciation".

Update — there's a third option, from later in the same ABC 20/20 segment, where Lacy Macauley, self-identified as an Antifa activist, uses the pronunciation [ˌɑn'ti.fə], with penultimate stress but a low back vowel in the first syllable — perhaps taken from a European version of the movement?:

 

[syndicated profile] file770_feed

Posted by Mike Glyer

“The truth will set you free. But first, it will piss you off.” ~ Gloria Steinem ~ By Chris M. Barkley On July 19, Variety, once the primary news sources of the entertainment industry, reported that the Home Box Office network … Continue reading
[syndicated profile] file770_feed

Posted by Mike Glyer

(1) WHAT A CONCEPT. ScienceFiction.com delivers the news in a very amusing way: “Is Jabba The Hutt In Line For His Own ‘Star Wars’ Anthology Film?” Look out ’50 Shades’ and ‘Magic Mike’!  Some real sexy is about to hit … Continue reading

The Imperious Criterion of Meaning

Aug. 19th, 2017 11:33 pm
[syndicated profile] languagelog_feed

Posted by Mark Liberman

Patrick Radden Keefe, "Carl Icahn's Failed Raid on Washingon", The New Yorker 8/28/2017, mentions the title of Icahn's Princeton senior thesis:

In 1960, after studying philosophy at Princeton (where he wrote a thesis titled “The Problem of Formulating an Adequate Explication of the Empiricist Criterion of Meaning”) and a stint in medical school (he was a hypochondriac, which did not help his bedside manner), Icahn shifted to Wall Street.

But Keefe doesn't mention what is now my favorite correction of all time — 2/12/2006 in the New York Times:

An interview on June 5, 2005, with Carl Icahn misstated a word of the title of a thesis he wrote while he was an undergraduate at Princeton. As a reader informed The Times two weeks ago, it is "The Problem of Formulating an Adequate Explication of the Empiricist Criterion of Meaning," not "Imperious Criterion."

In fact "the imperious criterion of meaning" fits much better with Mr. Icahn's subsequent career, as well as evoking Humpty Dumpty's philosophy of language:

'I don't know what you mean by "glory",' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

Alice was too much puzzled to say anything; so after a minute Humpty Dumpty began again. 'They've a temper, some of them — particularly verbs: they're the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That's what I say!'

'Would you tell me please,' said Alice, 'what that means?'

'Now you talk like a reasonable child,' said Humpty Dumpty, looking very much pleased. 'I meant by "impenetrability" that we've had enough of that subject, and it would be just as well if you'd mention what you mean to do next, as I suppose you don't mean to stop here all the rest of your life.'

'That's a great deal to make one word mean,' Alice said in a thoughtful tone.

'When I make a word do a lot of work like that,' said Humpty Dumpty, 'I always pay it extra.'

'Oh!' said Alice. She was too much puzzled to make any other remark.

'Ah, you should see 'em come round me of a Saturday night,' Humpty Dumpty went on, wagging his head gravely from side to side, 'for to get their wages, you know.'

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