PrawfsBlawg

Passages

Earlier this year, I signed a phase-out agreement with Suffolk University, probably two years earlier than I had originally planned.  You give up your tenure and agree to teach half-time for up to three years (at your option) and there's a small (nay, insignificant) financial incentive.  You have to take the deal before the end of the year in which you turn 70, which for me is still two years away.  But I think COVID and Markie (see left) pushed me to pull the cord sooner.  On July 1, 2022, I ended fifteen years of tenure-track and tenure (begun when I was 53), the longest I ever kept one job.

My relationship with PrawfsBlawg spans more than my academic career. I started as a frequent commenter back in 2005 or so, while I was still the GC of a chemical company. Dan Markel invited me to guest blog in the summer of 2006, just before I started a visiting gig at post-Katrina Tulane. The "raw" in Prawfs still lingers in the annual hiring and law review submission posts, but the raw profs I met in 2006 (particularly at the Law & Society meeting in Baltimore) are mostly now well-established mid-career or senior scholars and teachers.  Some are even deans.  Since I was already medium well done when I started this, I'm now well overcooked.  But I've succumbed to the self-indulgence of semi-biographical work along the way, like how to get hired on tenure track when you've been out of law school for twenty-six years or reflecting on law scholarship and teaching having gotten tenure at age 59.  Why stop now?

This is the first summer since 2008 (I think) that I've not committed myself to publishing a piece by getting a summer research stipend.  Over the last several years, I have written a lot about computation and lawyering. That included positing a robot lawyer that I named after Judge Amalya Kearse, predicting the persistence of "dumb" contracts, and comparing human and computer decision-making.  It involved digging deep into the differences between, on one hand, the discrete and binary and, on the other, the continuous and analog.  But my actual coding experience was limited to the Basic we spent learning in my high school pre-calculus class in 1971, some Boolean stuff on an Excel spreadsheet,

and knowing how to click "HTML" in the upper right corner of TypePad to code a block quote that looks like this.

Hence, my summer project was to learn enough computer coding to make something of practical use.  I started with "Hello, World" exercises in C, then Python, then Javascript and HTML (all in my Visual Studio Code text editor).  By the end of August, I'd created two online interactive exercises to teach accounting to my business law students and a self-executing practice exam review for first-year contracts.

So stay tuned if you like.  I am going to post a little bit this September about being in the September of one's career and about computer coding and lawyering.

Humans Out of the Loop?

As I mentioned a couple days ago, this summer's project has been a reflection on what humans and machines are likely to be able to bring to the lawyering party.  One of the "pro-algorithm" themes out there in the literature is the synergy between "computational law" developments and the insights of the "heuristics and biases" behavioral psychology, of which Daniel Kahneman's work is among the most notable (and popular).  To quote Thinking Fast and Slow, “Whenever we can replace human judgment by a formula, we should at least consider it.” (p. 233.)

Michael Livermore (Virginia) has a nice little essay about the possibility of computationally self-executing legal rules, notwithstanding the famous jurisprudential debates about the “open texture” of language.  Can natural language processing (NLP) and artificial neural networks (ANNs) get to the point where humans trust a computational system to draw conclusions about things like what it means to be a "vehicle" that is prohibited in the park?  (The system would be given lots of pictures of things that could conceivably be "vehicles" and would be trained to use activation functions and weights to learn what a "vehicle" is within the meaning of the statute.)

But I digress into substance when I really want to talk about the outtake.  Professor Livermore uses the phrase "the dream of removing human beings from the loop of legal reasoning." For me, what immediately came to mind was the view of the noted cyber-technologist and DOD consultant, John McKittrick, on the same subject in connection with launching ICBMs: “You can’t screen out human response! Those men know what it means to turn the keys, and some are just not up to it! Now, it’s as simple as that! I think we oughta take the men out of the loop.”  As we know, he prevailed in that view, bringing the world almost to the brink of destruction, to be saved in the end by Ferris Bueller's doppelgänger: 

Writing is Architecture First, Interior Design is Secondary: On Trains, Houses & Pyramids

That's a variation on Hemingway, again. I posted a few days ago a fun, though a bit random list of quotes about writing (oh the Internet, where curating quotes has become the soul-less pastime of too many who've never actually read those they quote. May we always quote soulfully is my wish to us prawfs and writers at large...). Hemingway said prose is architecture, not interior design and that the Baroque is over. I think he meant that the substantive of what you want to say needs to guide the writing and that you need to write in a punchy concise way, avoiding fluff for merely decorative purpose. Say what you mean and mean what you say and get rid of all the garnish. I like garnish and I think interior design is important too. I'd even argue for bringing a bit of Baroque back (Bach J), carefully . But I completely agree that the structure is first and foremost in writing a good article or book. The bare bones are the piece of the writing puzzle that needs to be done right.

Today I spoke with my seminar students about their research projects and I thought I'd offer here, as a second installation of posts about writing, the metaphors I use with my students to help us think about structure. One of my favorite teachers in law school, who later became one of my doctoral advisors, was Martha Minow. I remember her telling us in a seminar on law and social justice, similar to the one I teach today, that you can write a house or a train. I think she said houses are what books look like and trains are articles. I don't agree with that division, I think both articles and books can be houses or trains. But the visual I've always found useful in thinking about what I am doing and how to build my project. If you are building a house, you take the reader with you through a pathway into a place where you have a nice entrance, a main hall and some public spaces, and then doors, and windows into rooms, each holding an interesting set of ideas about a related topic. Together the house makes sense but each room also stands on its own. If you are building a train, you think linearly about your project. It could be chronological or it could be a problem in search of a solution and the solution unfolds as your present and analyze layers of evidence, perhaps empirical data, theoretical arguments, policy claims. To the houses and trains I added today in class the visuals of pyramids and reverse pyramids. In every discipline, a good portion of research involves the qualities of lumping or splitting. In legal scholarship, often insights come from taking a broad issue, a broad base of a pyramid, a classifying and regrouping the issues to show how we actually have separate questions emerging from different subcategories and these should be addressed distinctly. We also often have insights when we look sideways, from a reverse pyramid narrow tip into horizontal fields, related topics that offer new insights. Research is often an import-export business.

I don’t know if these visuals are useful only to me or beyond but I’ve found that sketching my next writing project, including actually drawing stuff, not just outlining gets me into better architectural shape and only then can I begin to think about the décor.  

Dispatch from the Eastern Seaboard: we're not all dead.

As many of you know, I am a Californian who teaches at the University of Iowa and is spending this year in Princeton.  This has, as you might expect, given me an odd perspective on weather disasters (other than just hating 'em), and the people who suffer them.  

East coast: weather service predicts apocalypse.  New York City shuts down. Citizens enraged. Subway continues running, empty, through the night by mandate of Higher Authority, while citizens, barred entry to the safety and transportation to be found underground, race home on foot against the doom awaiting them from the heavens.  Roads are barred to traffic.  Stores are cleared of bottled water and canned goods.  Some make their peace with god, others shake their fists and rage against the skies.  Battalions of snowplows and ambulances lie in wait, engines running and crews on DEFCON 1 ready to scramble at the drop of a snowflake. Brooklyn hipsters make incredibly detailed pre-looting strategy maps of record stores, consignment shops. Life insurance companies draft bankruptcy filings in advance, move assets to the Cayman Islands. Martha Stewart releases book of recipes for cannibals.  National guard activates plans to impose martial law.  Anyone who can flees to a bunker in the mountains with gold, guns.  Nothing happens.  

 

Midwest: weather service predicts nothing.  Apocalypse happens. The weakest immediately die.  Basketball-sized hail rains down from the skies, knocks anyone who ventures outside out cold, then blizzard covers all populated areas in five feet of snow, promptly freeze-suffocating hail victims.  Tornados descend by the dozens, clearing the snow as well as any inconveniently placed buildings.  People notice that frozen corpses appear to be scattered throughout the streets, midwestern tidiness kicks in, they go outside to stack them in neat piles.  Corpse-stackers immediately struck down by lightning, then buried in more snow, floods add layer of ice on top of snow, malarial mosquitos weaken the survivors, who are then dragged off by wolves.  Nobody else notices, survivors somehow manage to walk without slipping across the eternal icy mausoleum of half of their neighbors to give homemade jars of preserves to the other half.  Just because it's the neighborly thing to do.  

 

If one must have profoundly horribly weather and charmingly absurd people, can I please have the Midwest people with the East Coast weather?  

Zombies Defeat Tort Law

It's always a shame to let a Prawfs guest stint go by without working in zombies.  Maybe there's just something in the air.  The Walking Dead is returning to my DVR box (any series which once starred a law professor's kid can't be all bad).  Maybe it's that I'm still hoping a review copy of Zombie in the Federal Courts will arrive.

So next week, my college's campus gets taken over by a game called "Humans v. Zombies."  According to this article in the student newspaper, all campus needs to prepare itself, because hordes of people shooting each other with nerf guns and tagging each other with two hands are about to descend.  What could possibly go wrong?

A bit, learned the plaintiff in Brown v. Ohio State University, 2012 WL 8418566.  

Plaintiff attended Parent's Weekend at Ohio State University's Columbus campus. Why not go on a midnight Ghost Tour?  Unfortunately, President Obama was on campus that week, so his limo needed an escape route, which obviously meant putting a double layer of plywood on sidewalks (somebody should fire someone from the Secret Service or something).  Anyhow, plaintiff tripped on that hazard, broke her arm, and filed suit.

Why didn't she see the plywood so evident on the sidewalk? Because a nearby "game of humans  vs. zombies being played by students ... diverted her attention."  

Zombies 1, Humans 0

Though of course, having been distracted by the zombies, she was able to avoid the application of the "Open and Obvious" doctrine and escape summary judgment -- genuine issues of material fact existed on "whether attendant circumstances overcome application of the open and obvious doctrine".

Did I Miss the Memo?

I'm no fan of semantic cuteness in politics. I'm not fond of George Lakoff's popularized books on the subject, I don't really care what ATLA calls itself, and I can't believe anyone takes Frank Luntz's memos seriously. That said, I can't help but notice that David Kopel, who delighted in using the phrase "Obamacare" until roughly late June of this year (say, last Thursday), explaining that the President "proudly embraces" it, has put up a half-dozen or so posts about the NFIB ruling since it came down and has failed to use the word once. Maybe the "Obamacare" macro on his laptop isn't working.

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

Who would be your graduation speaker ...

if you could have anyone do it? Here's Conan O'Brien giving the commencement address at Dartmouth:

 

Quiet Title Is As Quiet Title Does

While walking around Santa Fe at the R&R end of a conference trip I came across this delightful sign. I'm sure Mr. Quiet knew his calling in life from the day he was born.

Statutory Construction is Going to the Dogs

My bike ride to work today reminded me of a sneaky little game I play with my students when statutory construction comes up. A medium-sized dog was in the front passenger seat of a Chevrolet SUV and the dog was wearing a seat belt. My first thought was that this was hilarious; my second thought was that it actually is just safer. Then, I wondered if seat belt laws apply to dogs.

California's Vehicle Code, Section 27315(d)(1) says that "[a] person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt." Without knowing the age of the dog (California's Vehicle Code alternately refers to "minors under the age of 16" and "children"), it is possible that "passenger," as broader classification than "person," could include a dog. That makes linguistic sense -- the word "passenger," from the Middle English passager, etymologically refers to a traveler or taking a path, not necessarily a human traveler  -- and the distinction is supported in subclause (e), which states that "[a] person 16 years of age or over shall not be a passenger in a motor vehicle on a highway unless that person is properly restrained by a safety belt." This section distinguishes between the status of being a "person" and the status of being a "passenger." It also means that when a dog is a passenger in a motor vehicle on a highway without a seat belt, only the person operating the vehicle is violating the law. Since subsection (e) refers to persons as passengers, a human passenger in a car on a highway without a seat belt opens up the driver and the passenger to a vehicle code violation.

Of course, this is not the only interpretation of these clauses. But, one thing is clear: much of this would be resolved if the California Vehicle Code defined the word "passenger," but it does not.

So, buckle up your dogs. Or don't. Download your state or local vehicle laws to be sure. Either way, it's a funny way to teach the perils of poor drafting and the gaps left by the plain language of statutes.

A first hand report from Cairo

I recently received the following report from Cairo. For the person's safety, I am going to omit any possibly identifying characteristics.

Hello all,

The internet has just been turned back on here.  No one knows how long it will stay on, but here are a few updates.

I am fine and safe.  I am still here in Cairo, at home in my apartment.  I live nearNubar Street, one building removed from the Interior Ministry.  Liberation Square (Midan Tahrir), the site of the main demonstrations, is five blocks down the street.  

For many days, my street was jam-packed with security forces (police, secret police, and others).  Some of the most intense fighting between the security forces and the protesters was on Friday and Saturday.  The protesters attempted to approach the Interior Ministry and were met with tear gas, rubber bullets, and live ammunition.  The news reported that at least five people died on those streets.  On Sunday, the streets near the Ministry contained at least 20 torched police vehicles.  Saturday was particularly intense, and the tear gas fumes were thick around the building.  On Saturday night, security forces started entering our building, knocking on doors and asking/pleading for civilian clothes.  We aren't sure, but we think they were attempting to remove their uniforms and disappear into the crowds.  Either way, the streets on Sunday morning were covered with black uniforms from the police.  Sometime before Sunday dawn, the Interior Ministry was abandoned- and with it, the street in front my building.  We now have two tanks directly in front of our building, which has actually been much more settling than the previous situation of 3 security cordons on this block.  There are four additional tanks in the intersection and on the next block.

I am lucky to live in a building with many friends.  Most of the foreigners are still here.  A couple decided to stay elsewhere in Cairo, one is staying with a friend in Dahab, and two were on the first American evacuation flight to Athens. Another neighbor (my subletter from last year) was supposed to move to Boston last week.  After three trips to the airport and three canceled flights, she finally departed today.

A bunch of Egyptian friends have been telling me that they are up nights as part of an effort to protect their neighborhoods.  One friend referred to it as a 'community militia.'  Many people are telling me about rising food prices. 

No one expected events to escalate as quickly as they have.  The country has really been shocked by what has happened.  It has been awe-inspiring and unnerving.  During yesterday's enormous demonstrations in Tahrir Square, the atmosphere resembled a festival.  Today it is a battle.  Friends are beyond sad today.   

Is This Legal?

I used to work for a CEO who would regularly observe some oddity in the world and then walk into my office with the question: "is this legal?"

Yesterday, I flew from Traverse City, Michigan to Chicago for the Law & Society meeting via United Express on a regional jet.  The first officer did the usual announcement, and I won't get the names right, but you will get the point. "Our captain today is Paul Davis, and I'm First Officer Tracy Jones Davis."  I was sitting in the second row, and I asked the flight attendant, "Is that a married couple flying the plane?"  She said, "yes."  I said, "Is that legal?"

Howard Wasserman, who I finally met in person at the Prawfs gathering in the bar last night, on hearing this story, wondered if they had the usual arguments about directions, and whether they should stop to ask.

Did They Run This By the Lawyers?

I was opening up a new box of Cetaphil soap (I need to baby my very tender skin) and I noticed a couple of odd things.  First, the soap is "non-comedogenic."  I thought that meant it wouldn't make me grow into a comedian (or make me any funnier than I am, which would be unbearable).  But, no, it means it won't clog my pores.  Second, there are directions for use as follows:  "Apply to skin while bathing or washing.  Rinse." Really!

Lebowski in Law Wiki-land?

Not too long ago, I was trying to find an online version of  Near v. Minnesota, and the first google hit I got was a Wikipedia entry about the case.  I noticed that Wikipedia describes Near as “a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication.”  This is a more or less accurate way of describing the case, but what jumped out at me was the phrase “roundly rejecting prior restraint,” which seemed eerily reminiscent of a line from this exchange in the cult classic The Big Lebowski:

 

Walter Sobchak: Now so far, we have what appears to me to be a series of victimless crimes.
The Dude: What about the toe?
Walter Sobchak: Forget about the fucking toe!
Coffee Shop Waitress: Excuse me, sir. Could you please keep your voices down? This is a family restaurant.
Walter Sobchak: Oh please, dear? For your information, the Supreme Court has roundly rejected prior restraint.

 

What does this mean?  Could it be that “roundly rejected” is a commonplace term that happened to arise in both Lebowski and law Wiki-land simultaneously?  Perhaps, but I don’t think so; at least in my experience, “roundly rejected” is relatively rare phrasing (according to Westlaw, the Supreme Court has used the phrase a total of seven times in its history, but never in the context of the First Amendment, and not in Near).  Could it be that the folks who created the Near v. Minnesota Wikipedia entry slipped in a nod to Lebowski, hoping that other fans of the film would notice it?  This is my preferred theory, but I’ve got no proof.  Could it just mean that I’m obsessed with The Big Lebowski?  Perhaps, but hey, that’s how the whole durned human comedy keeps perpetuating itself.

P.S.  Related trivia:  the location where the above scene was filmed is Johnnie's Restaurant, on Fairfax and Wilshire, only a few blocks from where I work at Southwestern Law School.  Johnnie's is a classic 50's style diner, one so iconic that its owners have ceased to operate it as a diner and now use it only for renting out for movie, TV or music video shoots (you may also recognize it as the setting for Sean Kingston's "Beautiful Girls" video from 2007).

The Public/Pubic Pitfall and Other Non-typo Typos

Lyrissa’s post yesterday about typos yesterday hit home with me, since I’ve fought a lifelong, and often losing, battle against them in my professional and personal writing.  My ally in this battle is the spellchecker, of course, without which my writing would be even more typo-ridden than it currently is.

But spellcheck can generate a false sense of security by convincing one that work is typo-free while failing to eliminate a particularly pernicious category of error:  the misspelling that happens to result in  a legit word.  E.g., I often write “form” when meaning “from,” and while this is a misspelling of the word I intended, “form” is a perfectly valid English-language word, regardless of intention, so spellcheck leaves the wrong word in.  I call this pernicious and persistent nemesis the non-typo typo.

The most salient, and embarrassing, example of this arose in an article I wrote a few years back about government speech.  The article invoked the idea of the public a lot, but I apparently have a tendency to leave out the letter “l” when speed-typing, hence I submitted an article that occasionally referred to, e.g., “pubic law”, “pubic discourse”, and most immortally, “the pubic function of speech in American democracy.”

So.  Have any other lawprofs out there been victimized by the non-typo typo?  Is there a solution to this I’m overlooking (besides, of course, careful attention to detail, which never quite seems to work, at least not all of the time)?  And are there other examples of non-typo typos out there as mortifying as the public/pubic pitfall?

Tri-4-Gey 4 is next week!

As many of you know from updates that have appeared in previous years, my FSU colleague Professor Steve Gey has ALS and it's an utterly grim situation. Making the best of the situation, Steve, a distinguished scholar in constitutional law, has been writing law review articles quite literally with his toes. Meanwhile, former students, current students, friends and colleagues are training for yet another triathlon in which they participate with the goal of raising money for a cure to ALS.

This year, the fourth since Steve was diagnosed, the folks behind the Tri-4-Gey are asking people to donate in Steve's name to Florida State's "Steve Gey Endowment for Excellence." Here's how you can do it.

To donate:
(1) Go to https://foundation.fsu.edu/community/SSLPage.aspx?pid=815&srcid=838 
(2) Select "Steve Gey Endowment for Excellence" from the "Designation" drop down box
(3) Fill out the requested information 
(4) If you know anyone participating this year, then under the section titled "Tribute Information," select "in honor of" and put the team member's name that you are supporting in the "Name" box so that we can keep track of each team member's fundraising efforts. 

After the jump, I've posted a paragraph from a recent update by Steve that shows his indomitable spirit.

Despite these unhappy circumstances, my days are still relatively full. I spend my time doing what any rational person would do with his last days on earth: writing law review articles. I've got three articles coming out very soon, another that is currently under submission, and a fifth that is about three-quarters done. Who says tenure makes you lazy? When I am not writing law review articles with my toes, I read, watch movies, and listen to music. Mostly lighthearted stuff. For example, the item currently gracing my Kindle is a novel entitled "God is Dead." The basic plot is that God comes to Earth embodied in a wounded Dinka woman in Darfur. But although God plans to apologize for his role in permitting things such as Darfur to happen, he is gunned down, which triggers the events in the rest of the book. Like I say -- lighthearted. As for movies, I heartily recommend any example of the Romanian New Wave, or any of the recent movies made by directors in the countries that used to comprise the former Yugoslavia. They are almost uniformly wonderful, if a tad bleak. (Look, I'm dying here, so what did you expect -- a recommendation of "The House Bunny"?) As for music, today it has ranged from The Clash’s "Should I Stay or Should I Go" (get it?) to the gloriously quirky Glenn Gould rendition of The Goldberg Variations. I recommend the 1981 recording of the latter, by the way. (One of my many fears of this whole locked-in thing pertains to music selection. I live in mortal fear of asking for John Coltrane’s "Blue Train" and having one of my handlers load something along the lines of the Ramones’ "I Want to Be Sedated.") 

Disneyland and property rights in tickets

Due to a family matter, I had to head down to Los Angeles last week, so naturally my wife and I took our two little boys to Disneyland as well.  While there, the following two possibly analogous incidents occurred that got me thinking about property rights in tickets.

The first was that we decided to go on California Soarin' (in California Adventures), which is kind of a flight simulator ride with a big curved screen and suspended roller coaster-like seats that tilt with the picture to enhance the feeling of motion.  It's a popular ride, so the line gets long, and it's also one of the rides that Disney offers "Fastpass" to mitigate lines for those willing to work.  The way Fastpass works is that you insert your park entry card into a machine near the ride, and the machine gives you back your entry card and a ride ticket.  The catch is that the ride ticket lets you bypass the "standby" line only for a one-hour period, and that one-hour period is in the future.  So, if you visited the Fastpass machine at 10 am, you might be given a return window of 12 noon to 1 pm.

Anyway, we decided to brave the approximately 45 minute stand-by line, but as we were walking up to the end of the line, a woman approached us, asked if we were going to ride Soarin', and when we said we were, she gave us her Fastpass tickets, which we about to become valid.  Woo hoo!  So instead of having to wait 45-55 minutes, we bypassed the long line and had about a 5 minute wait (basically for the designated simulator to clear out).  I'll get to the potential issues involved in a moment.

The second incident occurred later that same day.  As we were exiting the park (well before closing time), a young woman approached us and asked if we were leaving.  When we said we were, she asked, "Can I have your tickets?"  Naturally, we refused.  It would have been pointless, since the regular Disneyland tickets require a valid hand-stamp for re-entry that day, and you can only get a hand-stamp if you've already been in a park, which of course requires that you already have had a ticket.

Nevertheless, the woman's request struck me as quite wrong for reasons beyond the pragmatic.  It would represent revenue loss to Disneyland, since the only other way she could get in would be to buy a ticket.  But then I started wondering about how I was able to Fastpass the Soarin' ride.  The lawyerly side of me could respond that there was no revenue loss to Disneyland, since the Fastpasses are free (but you essentially can only have one active at a time).  Therefore the situations are completely different.  And from Disneyland's perspective, I would think that is right.  On the other hand, I suppose the other customers waiting in the stand-by line might have had a complaint, since we (marginally) extended their wait, which would not have happened had we gone through the stand-by line.  Then again, the customers were no worse off than if the original Fastpassing woman had used her Fastpass instead of giving it to us, and one can wonder why those customers would care who imposed the marginal increase in wait time. . . .

Advice for Those Travelers with Bottles of Palinka or Other Souvenir Spirits, and Observations on the Endowment Effect

You have already checked your bags and gone through security in an airport in Europe such as Budapest's Ferihegy Airport.  You have 7,000 or so Hungarian forints ($35) just burning a hole in your pocket, so you decide to invest in a bottle of Zwack Sándor Nemes Pálinka (barack flavor - and that's not a tribute to our President - it's Hungarian for apricot, pronounced "bar-RATZK"), which you have sampled, and find to be a delightful way to anticipate your gulyas or your csirke paprikas. 

Being a thinking type, you say to yourself, "ah, but this is more than three ounces of liquid."  If I don't have a problem until I clear customs in Detroit, I can put it in my suitcase for the last leg to Traverse City."  The only issue will be if there is any problem in Amsterdam.  You say to the clerk in the duty-free store, "Will I have any problem with this in Amsterdam?"  To which the response is, of course, "no."

Learn from my experience.  There is a problem in Amsterdam.  If you are getting on an international flight from Schiphol Airport's international side, you will have to do a carry-on security check at the gate, and which point the security people will tell you that you cannot carry on your pálinka unless you bought it in the duty-free shop at Schiphol Airport, and that they confiscate dozens of bottles of booze and wine daily from travelers changing planes in Amsterdam, having bought the stuff in Prague, Budapest, Warsaw, or whereever (which they probably resell in the Schiphol duty free shop!). 

This, by the way, is what the behaviorial psychologists and economists call the "endowment effect."  Once something is ours, it takes on a value far beyond its cash value, merely because it is ours.  Experiments have shown that if you give a group of people equally worthless kewpie dolls, and then ask them to trade them, generally they won't, at least straight up, because each person's kewpie doll takes on a value to its new owner that is something more than worthless.  Suffice it to say that I did manage to repack my backpack and check it at the gate, and complete my plan in Detroit, but I was the last person to get seated on the plane as I negotiated to save the pálinka, and in good old-fashioned irrational actor fashion, for just a moment contemplated blowing hundreds of dollars missing my flight just to make a point about what a stupid rule it was.

Rex v. Djinn

A couple years ago in this space, I wrote about the now-defunct historical practice of haling non-human animals into court for offenses as varied as destroying crops, attacking humans, and even (ew) adultery. This practice raised lots of interesting questions about legal status, but was mostly a historical footnote, and I figured that the practice of suing non-humans (aside from rights-bearing legal fictions like corporations) was more or less defunct. Turns out, not so much. Today, I ran across this news item about a pending case in Saudi Arabia in which a family filed suit against a genie that has allegedly been harassing them for a couple years (making creepy noises, leaving threatening voicemails, throwing rocks, etc.).

The mind boggles at the legal difficulties raised by the case. How will the family serve process on the genie? If the genie fails to show up in court, and the family gets a default judgment, how will they collect? (Presumably the genie can use his magical powers to conjure up plenty of cash to satisfy the judgment.) Or does the suit seek injunctive relief? This case represents good news for legal academics, too. The field of genie law is significantly under-written (no articles on Westlaw based on a very cursory search), so the lawsuit should provide lots of fodder for novel scholarship.

Happy Fourth of July!

I have a British son-in-law, Simon, whom we all love very much, but it makes for a fun Independence Day.

The call went like this:

Jeff:  "We were thinking of you, Simon, on this day on which we celebrate throwing off the yoke of tyranny."

Simon:  "Shut up and pay your taxes."

Jeff:  "I will throw a teabag in the sink in your honor."

Great Idea of the Day

Fly a large airplane in the morning over lower Manhattan with a fighter jet escort, all for "photo-ops," and with no advance notice to the public. As a Newsweek blog described it, "Air Force One Photo-Op Scares the Crap Out of Manhattan."

How Can I Be Unconstitutional in Daily Life?

Have you ever done anything illegal? It’s not difficult. There are about a million laws you can break. You could throw a snowball at your friend in Topeka, Kansas. Even if it’s on your own property, you could land upwards of five months in jail. See Code of the City of Topeka, Kan. §§ 1-7, 54-123.

But what if you wake up in the morning, and you want to do something unconstitutional? If you’re not the president, your opportunities are limited. Nonetheless, doing something unconstitutional is not out of the reach of the common citizen.

Take a six pack of beer out of your refrigerator in Manhattan, and then drive through the Lincoln Tunnel to New Jersey in order to give it to your underage cousin. That’s not only illegal, it’s actually unconstitutional.

The 21st Amendment, which repealed prohibition, provides: “The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

So there’s your con law fun fact of the day. (And it’s yet another reason to actually assign the Constitution as reading in your Constitutional Law class.)

"I'm bored."

Whenever I have heard these words from my older daughter, I dutifully have responded by trying to motivate her to find productive ways not to be bored. Apparently, though, I instead could respond, "That's OK, sweetheart, it's just your internal SPAM filter kicking in." Ah, if only my own parents could have understood ...

Taking Law Lightly

Howard’s very interesting post from a couple days ago spurred me to think more about the style of legal writing more generally. I suspect I’m not alone in thinking that most legal writing, however smart and insightful it might be is … well, rather dry. That’s not to say the subject matter is necessarily dull, and if you’re interested in what you’re reading, it may engage you regardless of tone and style. On the other hand, if you’re reading a paper or an opinion because you have to, it can seem like a real chore, and I think this is in large part because the standard tone of legal writing tends to be ruthlessly expository—or less charitably, as arid as the Sahara. (And this is certainly something of which I have been guilty, as I often realize when going back over my own work.)

So does this mean humor is the way to vivify what can be a moribund style of writing, in opinions, or briefs, or articles? For a couple of reasons, I am skeptical. For one thing, judges may be able to get away with it because they’re often the final word on any given subject, but lawyers writing briefs and academics writing papers can’t take that chance, because there’s every chance that the judge or colleague whose evaluation is crucial to their success will find the humor inappropriate, and take a dim view of the work. (Especially true given the risk-averse breed that law folks are.)

There’s another reason it may not be a good idea, as some commenters in Howard’s thread gestured at. There’s something invariably demeaning about having an authority crack wise while also rejecting or challenging your position. So even if that overly long complaint really is frivolous, to set it aside with a joke means not only that you’ve lost, but that you haven’t even merited being taken as seriously as other litigants. I experienced a variation on this during this past year, when I found that students liked my sense of humor okay when I was making fun of the litigants in a case or, better, of myself (easy targets are always appealing). By contrast, any wisecrack made when I was answering a student’s question tended to meet with a chilly reception. Even though I never made a joke at a particular student’s expense, the idea that I was being even a little facetious gave some students the (mis)impression that I wasn’t taking their inquiry seriously. So perhaps there are contexts in which humor, however humane and well-meaning, just doesn’t work (e.g., “Your death penalty appeal merits only rejection/Go get in line for your lethal injection.”).

But the final, and in my mind the most compelling, reason to avoid humor in legal settings is that it’s usually just awful. One familiar form of legal humor isn’t really humor at all, but more a form of self-identification. Putting a Death Cab lyric (or Star Trek reference or Lebowski quote) into the footnote of your latest article on Hamdan is usually a stretch, and is less funny than merely a way to signal to your audience that you’re a hipster (or Trekkie, or Lebowski fan). As for the rest—the opinions written as Dr. Seuss rhymes or what have you—they generally seem to me more corny than actually funny. To use an Office analogy, they’re more in the vein of Michael Scott than Jim Halpert. It may be because in most legal writing there’s no room for the kind of twisted ironic sensibility that makes humor work. Really good humor has to be surprising and weird and not terribly serious, while law is, at its core, a pretty serious endeavor. The reasoning is often challenging, and a lot hangs in the balance (for lawyers and judges, though perhaps not for academics), so briefs and opinions and articles have to be crystal-clear first and foremost, and the best way to do that is to be expository and nothing more. Plus, the plain truth is that humor is not the gift of most law folks, just as most poets would likely not pass the bar and most comedians would struggle to write a passable villanelle.

And yet this is all unhelpful in thinking about the problem of legal writing’s lack of zazz. (Or am I wrong in thinking this? Is there zazz there that I just don’t see? Perhaps others are sufficiently entranced by their love for law that the love itself is zazz enough for them.) To be fair, some writers manage to persuade but do so with grace and style. I invariably find Carol Rose’s writing a delight to read, and Kozinski’s opinions are undoubtedly full of life (regardless of whether one agrees with him). What these authors share seems to be a willingness to deviate a bit from the traditional strictures of legal writing (admittedly a scary prospect for a pre-tenure academic, or a lawyer composing a brief for a yet-to-be-named panel of judges) as well as a willingness to infuse their work with something of their personal style (rather than blindly imitating the expository style that sucks most legal writers in like a tractor beam). This approach takes some courage and extra effort, but then again, as the man says, no guts, no glory.

Enforcing the Federal Rules in Rhyme

From NPR comes this story of Judge Ronald Leighton of the United States District Court for the Western District of Washington, who sua sponte dismissed (and ordered refiling of) a 465-page complaint as follows:

"Plaintiff has a great deal to say
but it seems he skipped Rule 8-a.
Hiis complaint is too long, which renders it wrong.
Please rewrite and refile today.

Two questions:

1) Is this sort of light-hearted, not-quite-serious, jocular approach from a judge appropriate? This question arises frequently whenever judges throw humor (jokes, rhymes, tangents about sports, entertainment, pop-culture references, etc.) into their opinions--how much creative license are judges allowed in their writing?

2) Was Judge Leighton correct to dismiss an overly long complaint simply because it was overly long? Rule 8(a)(2) requires a short, plain statement as a minimum that a pleader must provide. But it does not necessarily mean that anything more than a short, plain statement is improper under the rules simply because it is long (apart from what is contained in the complaint).

Cardozo as Yoda

With all due deference to Rick Garnett's apt observation about Justice Kennedy, Justice Cardozo was doing Yoda-speak long before Yoda was a gleam in George Lucas' eye.  The fact that I'm in Michigan without access to my full Cardozo collection limits my examples, but how about these from the classic (and wrong) majority opinion on fiduciary duties in Meinhard v. Salmon:

No answer is it to say that the chance would have been of little value even if seasonably offered.

Little profit will come from a dissection of the precedents. None precisely similar is cited in the briefs of counsel. What is similar in many, or so it seems to us, is the animating principle. . . . Certain at least it is that a “man obtaining his locus standi, and his opportunity for making such arrangements, by the position he occupies as a partner, is bound by his obligation to his copartners in such dealings not to separate his interest from theirs, but, if he acquires any benefit, to communicate it to them.”

Conduct subject to that reproach does not receive from equity a healing benediction.

Perhaps in common usage to be found a clue is: "They are not without their force if conduct is to be judged by the common standards of competitors."  Indeed, see one can from classic statement of the law this is that even when not in Yoda-speak, Judge Cardozo only one verb-positioning away was:

Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions.

Speaking of which, is it just me, or was Justice Cardozo reincarnated as Conan O'Brien?

A darn good footnote

Care of one of my students, I was treated to this delight in In re Richard Willis King, 2006 WL 581256 (Bkrtcy. W.D. Tex.) (Order Denying Motion for Incomprehensibility):

The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible.FN1

FN1 Or, in the words of the competition judge to Adam Sandler's title character in the movie, “Billy Madison,” after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

"Beyond the Breaking Splendour of the Years"

I've blogged several times before here about the Tri-4-Gey team's efforts, inspired by my colleague Steve Gey and his battle with ALS, to raise funds to battle Lou Gehrig's disease. The excellent news is that they have now raised over $70,000, due in part to the generosity of readers of this blog. You can continue to donate here.

In the meantime, Steve's battle grows ever more difficult. A couple weeks ago, there was a lovely story in the St. Pete's Times by John Barry about how Steve and his students are dealing with the sad situation. Here's a link. Breaks your heart. And  inspires it too.

Title: a line from a poem by Dowell O'Reilly

The Oral Torah

In Passover, one of the greatest mitzvas is to tell the young children, through reading, singing and games, a story about rights and liberty. Hope all who are celebrating have a great seder - this card is may be a matter of personal taste, but everyone loves matzo balls!

A Friday Diversion--"Postcards from Yo Momma"

In the interest of a Friday distraction, and because I swear that some of them could have been e-mails from my own mother, I wanted to flag a new funny website that a friend of mine forwarded to me--"Postcards from Yo Momma."

Just don't read it in class...

From the weird world files...

Check out this story: One kid half-hugs two other kids. Result: 2 days of detention at Mascoutah Middle School. Here's why:

District Superintendent Sam McGowen said that he thinks the penalty is fair and that administrators in the school east of St. Louis were following policy in the student handbook.

It states: "Displays of affection should not occur on the school campus at any time. It is in poor taste, reflects poor judgment, and brings discredit to the school and to the persons involved."

Is it just me or does this seem like a profoundly odd policy? I can imagine some hugs being unwelcome but the idea that hugging one another categorically brings discredit to the school and the persons involved needs reassessment.  But as those of you who know me as an inveterate hugger, perhaps I'm just a bit sensitive here. (H/t: one of my unnamed colleagues who I tend to hug too much.)

Is the Hello Kitty Sanction Public Shaming or Semi-Private Guilting?

I'm grateful to the five professors (including Paul Secunda) who in the last few days emailed me with a link to the story in Thailand regarding the Hello Kitty armbands. You can read the story here in the NYT and here on Yahoo. I shouldn't be surprised it caught so much attention among my friends: the story is the second most emailed on the NYT from the last week, and it appears on the heels of some stories about Walmart's experience with shaming shoplifters, such as this recent one in BusinessWeek/MSNBC.

In short, the Thai police force recently announced that officers responsible for relatively minor infractions--littering, parking illegally, arriving late to meetings--will have to don a pink armband adorned by the famous Hello Kitty doll image, in addition to any other applicable sanctions.  This may look like, on the surface, to be a vogue adaptation of the famous scarlet letters of yore.  But, according to the Yahoo story, the officers won't be publicly shamed and held out to ridicule; instead affected officers will have to "stay in the division office and wear the armband all day."  (No word yet on whether the Sanrio Company behind Hello Kitty will be worried about its  potential intellectual property claims.)

Before sharing my reaction to this story, let me state my normal caveat, which is that these kinds of issues are far less worthy of media attention than the typical pathologies affecting criminal justice systems both domestically and abroad such as inadequate representation for indigents, poor prison conditions and over-incarceration.  That said, the Thai police force's innovative tool for regulating police misconduct is considerably more innocuous than the public shaming sanctions which spawn the debates I sometimes get involved with. 

Essentially, without the general public being involved and invited to leer and jeer at the officers, the Thai sanction raises none of the concerns associated with a menacing crowd hot for revenge that James Whitman and I raised in our separate critiques of shaming punishments. From what I can tell, an officer can sit in his office all day without too much interaction with others, but be required to see that his armband is intended to remind him of his misconduct.  This makes it seem far closer to what I call "guilt" punishments, not "shaming" punishments, because it is intended to induce moral awareness on the part of the person penalized, without subjecting the person to the excesses of shaming.

To be sure, it's likely that an officer's colleagues will rib one another for the armband and that definitely creates some degree of shaming among peers, which I could certainly do without.  But one could probably fix that simply by threatening to punish those who ridicule other officers with having to wear the armband also.  Another possible solution: one might be required to wear the armband only in a private office, where one does one's paperwork.

One troubling aspect of the Hello Kitty armband penalty not developed in the accounts I've seen so far is the gender assumptions accompanying it.  The acting chief of police who supports this penalty explains its rationale by saying that "'(Hello) Kitty is a cute icon for young girls. It's not something macho police officers want covering their biceps,' Pongpat said."  Does this rationale only apply if the officers are "macho"?  My guess is that few police officials in the US would articulate this rationale,  but then again, I remember Sheriff Joe Arpaio of Maricopa County (near Phoenix), who became famous over the last couple decades for, among other things, requiring those in his county jails to wear pink underwear. I'd be curious to hear reader reactions to this aspect of the Thai development or others.

Legal Academy Look-Alikes - Reprise

Billy Bob Thornton (right) took time off from his movie-making duties to appear here in Berlin at the Law & Society meeting under his academic nom de guerre, Randy Barnett (Georgetown, right).

"Randy" denied any connection, claiming that his blood was too precious to be given to anyone, including Angelina Jolie.  He also insisted that I was really Owen Fiss.

Did You Know the Burden of Proof is a Waivable Standard?

So I was reading an old Posner opinion (Burdett v. Miller, 957 F.2d 1375  (7th Cir. 1992))  and came across this passage:

Actually [the district court] did commit one clear error on the fiduciary count, and that was to apply the normal civil standard of preponderance of the evidence, rather than the higher standard of proof--proof by clear and convincing evidence--that Illinois requires to establish the existence of a fiduciary duty outside of the per se categories such as lawyer-client and guardian-ward.  But Miller waived the error in the district court by failing to ask the judge for the higher standard.  The normal standard of proof in a civil case is, of course, proof by a preponderance of the evidence, not proof by clear and convincing evidence. . . .  A federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit.  If the parties do not mention the standard of proof in a civil case, the district judge is bound to apply the normal civil standard, just as he will apply the substantive law of the forum state if the case is a diversity case and neither party argues choice of law.  The preponderance standard, and the forum state's substantive law, are the default rules to be applied in such situations in the absence of objection.  And that is what happened here. The parties did not mention the burden of proof in any of their filings in the district court; the pretrial order didn't mention it; so naturally the judge applied the preponderance standard.

Not my field -- so perhaps this is old hat.  But I was pretty surprised to learn that a basic legal issue like the standard of proof could be waived.  Notable, too, is that Posner treats this as a federal rule of procedure: presumably even if the substantive law of Illinois held that the burden of proof is non-waivable, federal courts could ignore that requirement because a "federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit."  These are the days I wish I got to teach and study Erie.

UPDATE:  For more on this interesting subject, you might look at Henry Noyes's recent article on parties' ability to specify details about the litigation process by contract.  Could parties contract for the harsher "clear and convincing" standard for breaches?  What if it is your cell phone provider furnishing such a contract to a consumer? 

Algorithmically Generated Ads on Your Paper's SSRN Abstract Page

Brian Leiter posts about a bizarre juxtaposition of Google advertising on the abstract page of a SSRN-posted paper.  I confess to being so oblivious I didn't realize there were ads on the abstract pages.

But I was curious, so I looked quickly at my own "Retire and Teach" abstract, and sure enough there are a couple ads generated by Google's association algorithm that would obviate the need to read the article.  The first claims "You may be younger than you think.  Take the Real Age test and find out."  The other one helps you figure out "how much you'll need to comfortably retire [sic]."

I wonder how many thousands of people are checking this out right now.  Unfortunately, it probably gives the ads far more attention than they would have otherwise had.

Nunchuk of the North

I am, by all accounts, a video game troglodyte.  I don't GET video games.  Well, at least most of them.  I liked Tetris and something called, I think, "Break Out" (you plinked away at bricks in a wall).

My son Matt just rented "The Bigs," the Major League Baseball Wii game.  Nobody else is around, so he was obliged to get me to play.  This is interesting.  You can get a real world injury snapping your wrist playing a virtual world game.  Didn't Joel Zumaya of the Tigers go on the disabled list last year for injuries incurred in playing "Guitar Hero?"  I am confused by all the buttons.  Where is Z?  Why is my outfielder just standing there with the ball?  Is there something intuitive to this that I am missing?  If I get hit by a pitch on the screen, can I punch out the pitcher in real life?  Do they have a Wii version of the hot dog eating championship?  Can I be Joey Chestnut?

Signed,

Baffled Boomer

Legal Academy Look-Alikes

Somebody at the New Law Prof Workshop turned to me and said "you really look like Owen Fiss at Yale."  Now there are some significant differences between Professor Fiss and me, not the least of which is that he is a distinguished academic with a world-class resume and I am not, but more importantly, the picture at left from the Yale Law School web site appears to have been professionally taken after he had bothered to shave, dress, and not pose so that it looked like he had a double chin, things I did not bother to do or avoid when my son James snapped the picture to the right this morning.

This, of course, caused me to think about the other look-alikes in legal academy that I've noticed recently (or not so recently).  First, it's amazing how much Christine Hurt (Illinois, left) gets done in terms of the triad of scholarship, teaching, and service, in addition to blogging up a storm at Conglomerate, and raising her kids, when she also appears in movies like Breach under her stage name Laura Linney (right).

Similarly, Professor Mike Green of Wake Forest (left), a member of the AALS Committee on Professional Development, in an admirable expenditure of service time, spent the entire weekend as a participant in the New Law Prof workshop, even though it meant not appearing as Capt. Donald Cragen in the next episode of Law & Order:  Special Victims Unit, where his AFTRA-registered moniker is Dann Florek.

Feel free to submit other look-alike nominations.  But be forewarned that I have already mentioned these similarities to the people involved and have not been punched out.  And I will delete any comments that are not nice.

If the Canadian tourist recently "disappeared" in Syria doesn't bother you, then dig into the delicious hummus in Damascus

I've just arrived back in the US after a 12 hour long flight next to a baby and within arm-reach of several noisy toddlers.  Lucky me. A couple quick things.

First, I literally cannot believe the NYT published Seth Sherwood's travel puff piece on Damascus this past Sunday.  Syria won't let Jews into the country. And for many years, Syria wouldn't let its Jews out.  Imagine a state said: sorry, you can't come in, you're black or Muslim or a woman.  Would we be interested in hearing about where to get a tasty lamb and baba ganoush combo? Sherwood, who makes no mention of its discriminatory practices, instead talks about how welcoming to Western tourists the country is. (Update: Unless of course, your passport has an Israeli stamp in it.)

I suppose we should credit Sherwood for ambiguating his presence in Syria by noting that some Americans may be wary of visiting a "country whose authoritarian government stands accused of some serious charges — financing Hezbollah, allowing foreign fighters into neighboring Iraq and assassinating the former Lebanese Prime Minister Rafik Hariri."  But still, he notes, "a week among the regular citizens of Syria and its cultural riches is eye-opening."  Does Sherwood think for a moment that Syria is not critical to the support of the genocidally-intentioned Hezbollah or the destruction of civic life in Lebanon? If so, he should ante up rather than describe a regime that merely "stands accused" of these charges.

This isn't the first time the NYT has seriously goofed.  As the writer at ShrinkWrapped notes:

In 1931, the New York Times correspondent Walter Duranty wrote a series of stories about Stalin's Soviet Union which extolled the virtues of the young communist state.  He neglected to mention the millions of Ukrainian citizens who died because of a state engineered famine or the litany of atrocities that Stalin has rightly become famous for in the eyes of history.  Nonetheless, in a fitting tribute to the nation which gave us the Potemkin village, Duranty was awarded the Pulitzer Prize in 1932.  Several years ago the Times missed an opportunity to redress their perfidy and decided to stand by Duranty's "reporting" and keep the Pulitzer Prize. In the spirit of Walter Duranty, the Times appears to be laying the groundwork for a celebration of the state of governance in some unexpected places.

Second, and related to this bout of insanity, I am reminded that I want to recommend a few outstanding pieces I had the chance to read on the long flight back this week.  Take a look at Paul Theroux's reportage from Turkmenistan from the May 28th New Yorker, and if you don't have the article at home, check out an interview he did with Radio Free Europe on his experience. Also, be sure not to miss Paul Berman's excellent book-length essay in the New Republic from a few weeks back on Tariq Ramadan and the enablers in the Anglo media (Ian Buruma's NYT Mag piece, etc.) who have treated him far too gently, Duranty Sherwood-esque, perhaps.

P.S.  Sherwood's account might possibly be driven not by insanity, but more benignly by what Ian Frazier humorously describes here.

And Public Interest Lawyers in NYC Make Ends Meet How?

By sticking to hamburgers, where the NYC dollar apparently remains relatively strong. Just don't order a glass of wine with the burger.

Sunday's Armchair Travel

With exams almost graded and summer time on the horizon, and with it, some travel opportunities both near and far, I thought I'd share a couple suggestions after the jump of some places to consider visiting based on some positive experiences this past year. Feel free to put in your own rec's in the comments, or if you've been to these places, your reactions too.

The Coast of California

Last August, my wife and I recovered from her Bar Exam by taking the trip up the PCH in California for a week.  If you're looking for a reasonably short vacation with lots of fun places to visit, I recommend starting off in San Diego, heading up to LA, Santa Barbara, Carmel, San Francisco and capping it off in Napa. We rented a convertible for the week, and Dollar let us pick it up in SD and drop it off in SF with no charge (or maybe just a nominal charge).  We alternated staying with friends and in various hotels and bed and breakfasts.  Here are some links to the highlights:

Lodging: cozy rooms adjacent to the ocean at the Colonial Beach Inn in Santa Barbara and the Crystal Terrace Inn in Carmel, and an exquisite stay at the Napa River Inn.  Indeed the Napa River Inn was probably the high point of the trip.  The Inn included with our stay an envelope stuffed with free or discounted wine tastings at the local vineyards and restaurants in Napa Valley.  We're not especially devoted foodies or oenophiles, but even a 2 day trip to Napa can jolt the senses delightfully, especially if you stop by COPIA, the American Center for Wine, Food, and the Arts.

Around the corner from the Napa River Inn, we found the Bounty Hunter. It was an extraordinary place to savor flights of wine and eat scrumptious food; the employees there helped neophytes like us learn about the varietals without a whiff of condescension.  We liked it so much we went there twice...if we had time, we also would have revisited Zuzu, a tapas wonderland on the main street of Napa. The nice thing about these places is you can do a course crawl, having starters and wine at the Bounty Hunter and then moseying down to Zuzu for some other tapas and unforgettable desserts.
Other food highlights from the trip include: picnic yummies from the Oakville Grocery in Napa;  Pizza at Tra Vigne in Napa; breakfast overlooking the water at the Brockton Villa in San Diego; delicious burekas at Bibi's Warmstone Bakery in Los Angeles; and the pastas at Pazzia in San Francisco (some of my favorite Italian food in an authentic trattoria in SOMA).

Mo'Bay, Jamaica

More recently, we took a short trip for a close friend's wedding to Montego Bay, Jamaica, where we stayed, as part of the wedding group, in the villas of the Half Moon Bay Resort.  If you're pondering a destination wedding, this resort does them frequently and well, and can even host more than one on the same evening, if you're into polyamoury or something.  Indeed, there was an interesting, though, as I discovered, not entirely accurate article about Jewish destination celebrations in the WSJ a couple months ago.  Stephen Henriques, who is mentioned in the article and can trace his family's Jewish history in Jamaica back several hundred years, officiated the wedding we attended.

As you can see from some of the pictures here, the setting was glorious, and the service was both cheerful and plentiful. Each villa (which you book with family or friends to fill the various rooms) comes with butler, cook, and maid.  Frankly, the level of service is almost uncomfortable, and certainly, mostly unnecessary...you're not sure whether to feel grateful for the chance to pump money into the developing economy or to feel guilty about one's own lot in life. Probably a bit of both. At least whilst on vacation, the best way to work though such troubles was to hit the tennis court and beaches, and tip generously.  I should mention that the food at the resort or its affiliated restaurants was not especially impressive.  When in doubt, you're best off sticking to the fish entrees and the mango-infused desserts, or buying groceries at the local commisary on the grounds and having the cook help you whip up something based on local recipes that is both simple and tasty.

Weird Class Settlement Structures?

By chance I just came across the supplement in my credit card bill from Bank of America that alerted me to this class action settlement regarding the foreign transaction fees charged by Mastercard and Visa.  If you've used a MC or Visa abroad in the last 10 years or so, chances are you're a member of the class, and it's worth your while to take the few minutes to fill out the form to get your restitution, such as it might be. The Court has set a deadline of January 9, 2008, to file claims for a refund. 

A couple reactions: I admit to being surprised and disappointed to see these charges on my statement, which for the most part I recall seeing in substantial amounts after last year's AALS conference in Vancouver, but for all I know,  I was paying them well before then too, either when I lived abroad and used my credit card, or when I visited my hometown a lot during law school.

Also, the structure of settlement seems odd. The credit card companies, I would surmise, surely know (at least for the last few years) what everyone's foreign expenditure exposure is but rather than have them just make the determination on all the accounts, the settlement calls for consumers to estimate their own amounts of expenditures abroad.

Here's another oddity: according to the site, "the $336 million gross settlement fund represents approximately 9% of the maximum total amount of foreign transaction fees" estimated to be damages to the class. Why was such a measly amount accepted at settlement then? Read on...    

Here's what the parties argue were the justifications for the amount of settlement:

The amounts of foreign transaction fees involved in the litigation could be significantly lower than $3.8 billion if the case were not settled and proceeded to trial. The proposed settlement damages class is larger than the damages class sought by plaintiffs in the underlying litigation. Furthermore, the amounts of foreign transaction fees involved in that litigation depend upon a variety of factors, including appeals currently pending before the United States Court of Appeals for the Second Circuit. For example, the trial court in this matter ruled that many cardholders would be required to arbitrate their claims instead of pursuing them in court. Both the plaintiffs and defendants appealed this ruling, and those appeals were pending at the time of the settlement. An appellate order upholding the trial court's ruling would remove from the litigation a substantial portion of the foreign transaction fees described above. And an appellate court order in defendants' favor could remove even more, or substantially all, of the foreign transaction fees from the litigation and require those cardholders to pursue their claims only in arbitration.

In addition, there is disagreement between the parties as to what portion, if any, of the amounts of foreign transaction fees involved would constitute damages in the litigation even if the case proceeded and plaintiffs won at trial. Defendants maintain that they did nothing wrong, unlawful or improper and therefore there is no liability. They also say that even if plaintiffs proved liability, damages would be sharply limited or eliminated altogether by a number of factors including, without limitation, the prices that would have prevailed in the marketplace in the absence of the challenged conduct, the benefits provided to cardholders, defendants' costs, and defendants' changed business practices. Plaintiffs contend that, even accounting for defendants' changed business practices and purported costs and benefits to cardholders, the potential damages are as high as the total amount of foreign transaction fees collected.

What do you think? After all, you're probably a member of the settlement class.  Anyone feeling that an opt-out is a better route...or that the plaintiffs' lawyers could have done a better job?  My guess is that we're pretty lucky the credit card companies paid anything but I'm doubtful we'll be adequately recompensed.  And I'm certain I wouldn't have bothered to opt out.*

*Hey civ pro prawfs: have there been any interesting empirical studies of opt-outs in class actions?

Well-Educated Chimps

Hi kids. My name is Alex Long. I'll be a guest here this month. I'm just happy to be here and hope I can help out the team. Hopefully, we'll win some ball games as we enter the playoff stretch here in the month of December.

In light of some of the recent discussion concerning non-traditional approaches to the law school curriculum, I thought now might be an appropriate time to bring up this article about a graduate from a non-traditional law school. It's a recent story from the National Law Journal about a graduate of an unaccredited law school in California who is suing for the right to sit for the Connecticut bar exam. I don't know anything about this individual, the law school from which he graduated, or Connecticut's rules regarding admission to the bar. I have my share of criticisms regarding the ABA's accreditation rules, but I don't know much of anything about all of the unaccredited law schools in California or enough about the practice of law in California to know whether such schools might actually have some legitimate role to play. (I'd be interested in hearing from those with greater knowledge, however.) Therefore, I don't really have any opinion about this particular suit or others like it.

I do, however, have a thought about a quote that appears at the end of the article. In advancing his basic argument as to why he should be allowed to sit for the Connecticut bar exam, this recent graduate is quoted in the article as saying, "A fairly well-educated chimp could practice law." I think it's fair to question whether some activities that only lawyers are currently permitted to engage in should really be considered "the practice of law" and whether graduation from an ABA-accredited law school should really be a prerequisite to entering the legal profession in a state. So, maybe this individual has the beginnings of a point.  However, this individual is also in the process of arguing before a member of a profession (the judge in this case) that he is entitled to be a member of that profession. Therefore, I wonder whether making the "well-educated chimp" comparison was really such a wise choice at this particular time.

Subservient Posner?

Thanks, Adam, for the news about the interview with virtual Posner.  Now if only we could somehow combine it with something like this.  Dance, virtual Posner, dance!

Coming to a Nuisance Near You: Dr. Phil

According to this story, Dr. Phil's "House" is a nuisance.  If only Dr. Phil himself could be declared a nuisance, I know that at the very least, my mental health would improve.

Your Investment is Toast

Just reading this news about a gadget that lets you burn different images on your piece of toast. Cool! Silly! Coolsilly!

Of course, my thoughts went back to the news story a couple of years ago, about the piece of toast with an image of the Virgin Mary that sold for close to $30,000 on ebay (a transaction that formed the centerpiece of a contracts exam I gave that year).

Does this new technological development render the Virgin Mary toast valueless? Or does the original Virgin Mary toast retain a special cache due to the religious iconography and the fact that the image appeared spontaneously? Of course, one could say that even the original sale on ebay really did serve to show the subjectivity of value (a point that very few students made on the exam, but which I had hoped more would address).

State v. Fido

In 1750, in Vanvres, France, an unmarried couple was caught in flagrante delicto. Pursuant to the ecclesiastical law of the time, they were tried and convicted of fornication and sentenced to be hanged. The man, Jacques Ferron, went to the gallows, but community sentiment swelled on behalf of his partner. The townspeople swore an affidavit that they knew her to be “virtuous and well-behaved”, and the judge, moved by popular sentiment, pardoned her. Oh, and there’s one detail I left out: the female defendant was a donkey.

This story comes from one of easily the strangest, but also one of the most interesting, law books I’ve read recently: E.P. Evans’ The Criminal Prosecution and Capital Punishment of Animals. The monograph, originally published in 1906, is about just what its title suggests—the medieval and early modern practice of subjecting animals to criminal process. Evans catalogues numerous cases where the state brought criminal actions against pigs, cows, donkeys, vermin, and swarms of insects. The accused were typically jailed (in the company of human inmates), tried (complete with publicly appointed defense counsel), and if convicted, subjected to sanctions that ranged from a knock on the head to capital punishments (hanging at the gallows, burning at the stake, and even burial alive).

Evans makes no secret of his disdain for these practices, and it’s easy to read the volume as an example of the transition (of both criminal law and society’s treatment of animals) from the benighted medieval world to the humane and enlightened modern one. But for a few reasons, I think the real story is a bit more complicated.

The stories Evans relates might be taken to suggest that to the medieval mind, animals and humans alike possessed equivalent moral agency—after all, why punish in the absence of culpability? But a closer reading of the evidence suggests that this isn’t quite right. Scholastic philosophers—including Aquinas—wrestled with the conceptual issues raised by subjecting animals to penalties designed to regulate human society. Their solution relied on notions the modern mind would find familiar: an acknowledgment of animals’ limited sentience (after all, while not human neither are animals rocks or bacteria); and the need to incapacitate animals that placed humans in danger. And the notion of punishing animals is not entirely foreign in contemporary society, as anyone who has shouted “bad dog” at a miscreant pet can attest.

Nevertheless, something seems absurd and tragically unnecessary about the practice of publicly punishing animals for criminal acts (to say nothing of the practice of subjecting humans to the same treatment). If animals pose a danger to society and must be put down, fair enough, but why make a public spectacle of it? Evans locates this practice within the strikingly inhumane treatment of animals that prevailed in pre-modern Europe. There is certainly some evidence for this. The work of Robert Darnton and Mikhail Bakhtin on early modern popular culture each observe the prevalence of torturing animals as a form of entertainment during festivals. Darnton in particular notes the irony of this practice becoming particularly widespread during Enlightenment-era France.

Evans confidently asserts that animal treatment has improved since the illiberal practices that prevailed as recently as the early nineteenth century. But it’s worth pointing out that being subjected to criminal process wasn’t all bad for animals. Society’s greater sense of their agency entitled animals to legal process that occasionally resulted in clemency, such as the pardoned donkey in Ferron’s case or the French case of a sow and cow whose convictions of capital offenses were overturned on appeal. The idea that animals possess moral agency thus cuts in two directions. By contrast, the contemporary notion that animals are not persons under the law divests them entirely of any formal legal protections, save for those a local jurisdiction chooses to extent through anti-cruelty statutes. Modern state determinations that dangerous animals need to be put down are summary and unreviewable.

But things have to be better for animals nowadays, with at least a modicum of public-law protections, right? Probably, but it’s a closer call than Evans and others might assume. Many of the practices that prevailed in centuries past (publicly torturing animals as family entertainment, for example) wouldn’t wash today, thanks to both animal cruelty ordinances and public mores. But while we’ve grown squeamish about watching animals be tortured, we don’t seem to be particularly worried about the existence of the practice when it’s easily ignored. The onset of factory farming has probably enabled extreme animal suffering on a less visible but far more widespread scale than existed during the periods that Evans and others describe.

Despite this, though, I’d still guess that animals today are better off than they were in earlier eras, just as the quality of life for humans has seen massive progress since then. But while I loved reading the Evans monograph, I think there’s some danger in his assumption that the attitudes and practices it catalogs—however strange they may seem—are nothing more than absurd relics of long-gone, backward societies. These practices had thoughtful theoretical foundations based in the dominant ideas of the time and brought their own balance of social costs and benefits. And I suspect that in a few hundred years, legal historians may look at our own conceptual and practical approach to animal welfare (near-total denial of animals’ legal status, widespread toleration of extremely cruel farming techniques) with the same mixture of horror and amusement with which contemporary readers regard the practices described in Evans’ book.

Where’s the Elephant in Your Law School?

This past weekend in Los Angeles, a new art show by British graffiti artist Banksy opened.  The show, called “Barely Legal,” (one of the hooks for this blog post) featured a painted elephant.  As the LA Times explains:

The warehouse was decorated as a living room, complete with furniture, chandelier and the standing Indian elephant.

Cards were handed out explaining: "There's an elephant in the room. There's a problem we never talk about. The fact is that life isn't getting any fairer…. 20 billion people live below the poverty line."

Apparently, however, this created a whole other set of problems for the artist.  Animal rights activists were unhappy with the use of a live elephant in his show. 

So, I’m going to use this as a segue to ask if there is an elephant (gorilla?) somewhere in our law schools?  A problem that is so common that no one talks about or discusses it?

Two Sniglets

Anyone remember Sniglets, you know, from back in the ‘80s?  They were words that should be in the dictionary, but aren’t.  So, for example, “execuglide” is using a wheeled office chair to move from one part of the room to the other.  Lately, I have two recent concepts that I feel need to be snigletted (is that a verb?), but haven’t come up with the right term yet.  Both of these instances, however, engender similar feelings.

 

The first concerns mapquest.  Now, ordinarily, I love mapquest, which is such a huge improvement over calling for directions.  I say that, but every now and again, mapquest will give you a set of directions that is completely, utterly, totally wrong.  And, because the service is normally is so good, you’re not expecting it, and often don’t have a map handy just as you take the wrong turn.  Let’s just say that you can get really, really lost this way (especially, say if you just moved to California and you’re in San Francisco and don’t know where you are going).

 

The second concept has to do with SSRN.  You’re working on an article, something that’s timely, fairly recent, and are plugging away at it.  You’ve done the standard preemption checks and literature search and have reached the conclusion that no one else has already taken the topic.  And then, viola, forty pages in, you check SSRN, and guess what?  Someone has developed “your” idea, and it certainly was a good one, cause hey, it’s going to appear in the NYU law review!

The Train Pulls Out of Kankakee...

Less than twenty-four hours but more than six hundred miles since I told Dan Markel that I would just as soon not do blog posts that are purely personal rumination, I feel obliged to say something about the longest solo drive I have ever made in my life.   I am now safely down for the night in a Holiday Inn Express somewhere in Mississippi, having left Indianapolis at 7:00 a.m. today.   In no particular order of importance:

1.  If tonight I'm staying in a Holiday Inn Express, then tomorrow when I arrive I should wait until Dean Ponoroff is out of the office and then slip into his chair.  When somebody walks in and asks, "are you the dean?" I can reply, "no but I stayed in a. . . ."

2.  My son and I went to see Talladega Nights:  The Legend of Ricky Bobby a couple days ago.  When I arrived here, I could not bring myself to eat dinner at the Applebee's.

3.  This is the first time I have ever stepped foot in Alabama or Mississippi.  The model of the Saturn 1-B at the Alabama welcome center near Huntsville is cool.  I wasn't so sure about the three sided pillar just across from it that says:  "Alabama:  we dare to defend our rights."  (For the record, I have Hawaii, Alaska, Washington, Oregon, Idaho, North Dakota and South Dakota to go.)

4.  Pilot truck stops have the best coffee.  The one outside of Louisville also had fresh bananas.

Enhancement Gone Awry

The NYT has yet another story on plastic surgery in its Thursday Styles section, focusing on the new "microprocedures" of liposuctioning knees and ankles.  Ana Bartow has already cuttingly commented on the Times' obsession with modish means of body modification.  I just want to juxtapose a few provocative quotes.

First, to their credit, the Times notes that

some sociologists and medical ethicists say that using liposuction — which can cause complications ranging from infection to death — for such tweaks raises profound questions about the increasing risks cosmetic doctors and patients are willing to take in the name of perfection. They say these microprocedures may signal a shift in beauty standards in which people come to regard the body the way they do their cars or kitchens: as an object able to withstand never-ending renewal and modification.

But it's back to so-called "journalistic objectivity" by the end of the piece, with a "bioethicist" commenting that "'Humans have always been willing to invest time, energy and risk in looking attractive, so I don't see smaller liposuction procedures as a sign of doom, gloom and the downfall of our culture.'"

Which brings me to the legal question.  Some of the procedures mentioned in the article were so "micro" that almost no one could notice what had occurred.  Query: what if a patient just asked a doctor to perform surgery, with absolutely no effect on their appearance?  Would it be legally permitted for the doctor simply to take the money, make the incision, take out, say, a gram of fat? Is this purely a matter of contract?  Or should legal standards prohibit such a transaction?

A final point: many libertarian bioethicists love to point out that the line between "therapy" (curing disease) and "enhancement" (making someone "better than well") is very difficult to draw.  I think that's only true to the extent we take it to be true.  As Victoria Pitts comments in the article, "The goal posts are changing so rapidly that what was once considered cosmetically unnecessary is now considered helpful . . . . [As more of the body] become zones of perfectibility, we will feel more and more pressure to get involved in projects that improve them."  Query: is that type of pressure at all socially useful?  Or, rather, does it betoken an infectious vanity that leaves everyone worse off?