gTexts

2003-01-27T21:00:00.000-08:00

THE BIG MOVE. It's been fun here at blogspot, but further gtexts blogging is going to be at www.gtexts.com. Please come visit, change any links, etc. Of course, all your favorite old posts will still be here until Ev erases me.

2003-01-20T21:04:00.000-08:00

WELL, NOW WE KNOW. Nonetheless, I feel a great swell of pity for the poor soul who comes to that school, looking for trouble...

2003-01-20T17:06:00.000-08:00

ONE OF MY COLLEGE FRIENDS just praised me for "always [being] the first one to reply" to emails. Of course, this is because I'm always at my computer. Sometimes it feels as if college and law school have basically been one long email-writing session, punctuated by occasional breaks to do schoolwork or eat.

2003-01-19T20:00:00.000-08:00

THIS IS PRETTY WEIRD. But it is nice that William Gibson (author of Neuromancer) is gracing us with a blog.

2003-01-18T08:24:00.000-08:00

DEAN ESMAY COMMENTS regarding the implications of affirmative action policies:

I would not willingly hire a black lawyer to represent me if he or she was under about the age of 50. Nor would I willingly subject myself or my family to a black doctor under about the age of 50....Over the age of 50, and that black doctor or lawyer is, odds are, tremendously talented, especially because they probably had to be BETTER than the white students around them. The opposite is true for the young ones, and I will not willingly put my legal interests or my life in the hands of someone I have substantial reason to believe is less qualified than his or her white counterparts.

Under the reasoning Dean uses for the younger black doctor, given the obstacles the older doctor faced, Dean should have "substantial reason" to prefer the 50+ black doctor to a 50+ white doctor. Note that Dean does not quite make that jump; he does not discount 50+ white doctors. But he is quick to discount all younger black doctors along these lines. Did they not pass the same tests in medical school? Did they not work on the same cadavers? Did they not do the same internships? What about a doctor who was accepted to med school thanks to affirmative action but ends up graduating near the top of her class? Undoubtedly there are good and bad doctors of all races. There are plenty of more accurate ways to find out about a doctor's quality -- say, looking to their reputation in the community -- but Dean limits himself to broad generalizations about what their probability of having had a higher MCAT score at 22 was.

Empirical psychology has repeatedly demonstrated that people have a strong tendency to interpret ambiguous situations so as to confirm stereotypes they hold. For instance, experimental subjects interpret the same situation differently when they are told that the actor is black from when they are told the actor is white. See, e.g., Ziva Kunda, Social Cognition 317-335 (MIT Press: 2001) (collecting experiments on stereotype activation). Regardless of your view of affirmative action, I highly recommend checking out the remarkable ways experimental psychologists of the last couple decades have been quantifying just when our brains take shortcuts and when they do not. These insights about our all-too human tendency toward stereotype confirmation in mind, think of the subjective components that go into making an applicant's overall score, from high-school essays to admissions interviews. In this light, it's hard to conclude that 100% of the point disparity between an average black applicant and an average white applicant is due to a disparity in "merit."

But lest some reader should get in a huff reading this, have no fear. The Court is almost certain to strike down the Michigan program. We can all rest assured that an ideal, utopian, colorblind standard will be applied to our very non-ideal, non-utopian, non-colorblind world. The losers: the same people who always lose. God bless America.

UPDATE: Dean responds here. By the way, I'm not at all against recognizing socioeconomic disadvantages in admissions across the board. Yes, inequalities in wealth are a healthy part of a capitalist society that rewards talent, innovation, and effort, but I see nothing particularly sacred about preserving wealth advantages across generations.

UPDATE: Nate Oman with thoughts on the Michigan case.

UPDATE: Eric Muller, a new law prof blogger, offers some data "from the field" on the value of classroom diversity.

2003-01-17T14:37:00.000-08:00

GANGS OF SUCK. I have to agree with Dean, Gangs of New York was a terrible, terrible movie. Adaptation, on the other hand, now that had some merit, even if it was ultra self-indulgent. Still, both those tickets would have been better spent on going to see Two Towers for a fourth time...

2003-01-17T12:12:00.000-08:00

INSTAPUNDIT DECLARES IT "BOGUS" to mention preferences for legacies in a discussion of affirmative action. Writes Insta: "[R]ace discrimination [(meaning, affirmative action)] is much, much worse than merely favoring alumni." I think this is unfair -- People who mention legacies aren't making a constitutional point but are offering a reminder of how screwed up our priorities are. Given all the advantages many children whose parents attended elite colleges already have (good schools, expensive test-prep courses, vocabulary-enhancing dinnertime conversation), it seems strange that we're fine with giving them an additional preference on top of that, but we have a national freak-out session if minorities who generally have a disadvantaged starting point get a similar opportunity. While legacy preferences are obviously not worse than minority preferences from a constitutional standpoint, they are worse in terms of things like, say, fairness, a decent society, or equality of educational opportunity.

Additionally, an anonymous reader commented that:

Legacies have, probably for good reason, often been stereotyped as less capable. This is most certainly true as to Bush himself, who is always painted by lefties as an undeserving, apathetic, unintellectual loser who only got into good schools because of legacy status. So the question is, why do you want to create a situation where black students are justifiably subject to such a stereotype?

Whoa. With reasoning like that, this person must be a legacy or something. If only minority applicants could have the good fortune to be subjected to the same kind of "terrible stigma" as George W. Bush. Stigmatized all the way to the White House! If legacies are so greatly hurt by negative stereotypes from admissions preferences, why do people voluntarily list their parents' status as alumni on their application?

UPDATE: Ambivalent Imbroglio comments on this post.

UPDATE: Agonist with more on this topic.

2003-01-17T08:58:00.000-08:00

REFERRING TO THE WHITE HOUSE BRIEFS in the Michigan cases (available here and here), reader Danielle Gray emails:

[The] SG's hailing the Texas/FL plans as models is another example of the inconsistency in the right's arguments
that is similar to the one [Eugene] Volokh made on MSNBC last night -- if the state should never take race into account, then why should it be allowed to perform the functional equivalent by cloaking the policy in race-neutrality (taking advantage of deeply entrenched racial segregation in those states)? While this is consistent w/ their professed belief in facial neutrality and rejection of effects/impact, it is entirely inconsistent w/ their Equal Protection/race should not be a factor arguments. So the arguments in the White House brief seem unprincipled on both the "quota" and consideration of race points.

I completely agree, although if we're sticking with the framework set out in Washington v. Davis and its progeny, both anti-minority racial discrimination and pro-diversity affirmative action are fine, so long as the policy does not itself use a racial classification to accomplish that effect. I think it is hardly an improvement to push both racial discrimination and affirmative action under the table like this, but if it has to happen, and the Michigan policy is struck down (as seems likely), then liberals should play the conservatives' game and show that facially neutral but effectively pro-diversity policies are just as possible as facially neutral but effectively anti-minority policies. After the Michigan case, assuming it comes down as most Court-watchers expect, this will be where most of the action is going to be for the pro-diversity left: appropriating the right's regressive tools (facial neutrality is all that is required regardless of effect) for progressive ends.

2003-01-17T08:10:00.000-08:00

WHO STOLE THE PEER-REVIEW? Alice on student-run law reviews. She also gives a list of law professors problematizing student-run law reviews in (what else?) a bunch of student-run law reviews...

2003-01-16T17:01:00.000-08:00

QUOTABLE QUOTAS? President Bush and other conservative commentators are calling Michigan's affirmative action policy a racial "quota system." Now, strictly speaking, the program does not set a quota at all; it does not say "X% of the incoming class is going to be African-American." (That would be a quota) Rather, some minority applicants receive points added into their overall admissions score (made up of factors including things like high-school GPA, SAT score, extracurriculars, geographical location, and a whole range of other factors).

Now, I was just watching Eugene Volokh on MSNBC, and he made a compelling argument for why the Michigan program effectively is a quota: the size of the score boost given to minority applicants seems carefully calibrated so that the desired percentage of minorities, X%, conveniently ends up getting admitted anyway.

Opponents of Michigan's admissions program have a perfectly decent argument against the Michigan program (race should never be taken into account by a state actor) but for some reason they feel they have to go further and make the Michigan program sound as bad as possible ("quota" sounds worse than "one of several factors"). Unfortunately, this approach violates the right's long-held principle that the real-world effect, such as a facially neutral progam having a disparate impact, is irrelevant to constitutional analysis. (i.e., Washington v. Davis). With respect to the Michigan admissions program, the reality is probably something like a quota, but I don't think conservatives should get to deny the facial terms of the policy and look for some underlying reality when doing so is convenient for them, because that is exactly the sort of reasoning they vigorously rejected in the disparate impact context. Otherwise, minorities get the short end of the stick on both sides, and to me, this shows a disconcerting unprincipledness about whether facial terms or real-world effects are what matters. In the end, this unprincipled thinking leaves us wondering what the real principle on the right is.

UPDATE: Although missing some of the nuance of this post, John Rosenberg makes a characteristically admirable reply on his blog, Discriminations. In response, let me re-emphasize that I don't think the Michigan program is facially neutral with respect to race, merely that it is facially not a quota. This post was about an inconsistency in the right's logic and argumention style, and not about whether the Michigan program should be upheld or struck down.

2003-01-15T21:08:00.000-08:00

BUSH SPEAKS OUT AGAINST Michigan's admission program. It seems hard to imagine a more inappropriate critic of some people being given a boost in their chances of admission than someone who undoubtedly benefited from preferences due to his "legacy" status in gaining admission to Yale. While there is much to be said for a true meritocracy, so long as we are comfortable giving those lucky enough to be born in the right womb admission preferences, it hardly seems "fundamentally flawed" to give preferences to minority groups that have historically been subject to overt discrimination. Indeed, because of the educational advantages parents who attended elite colleges can often confer -- from the 92nd Street Y preschool on -- giving additional admission advantages to their children is doubly problematic. It is interesting where we look for flaws in the system these days...

2003-01-12T20:52:00.000-08:00

SIR JOSIAH STAMP, whoever that was, once said:

The government are very keen on amassing statistics. They collect them, add them, raise them to the n-th power, take the cube root and prepare wonderful diagrams. But you must never forget that every one of these figures comes in the first instance from the village watchman, who just puts down what he damn pleases.

Sir Josiah Stamp, Some Economic Matters in Modern Life 258-59 (1929). Note the British treatment of "government" as plural, requiring "the government are."

2003-01-10T17:48:00.000-08:00

LIFE CYCLE OF A NINJA :

The Early Years. Born to doting parents in Kamakura during Warring States period. Father encourages son to develop ninja skills through games like “Hide-And-Go-Seek Master’s Honorable Slippers”, “Peek-A-Boo”, and “This Little Piggy Went to Market, Assassinate Him.”

Schooling. The young ninja-in-training waves a tearful goodbye to mom as he leaves for Ninja Boarding School at age six. Makes friends quickly, but Bushido code of honor prevents him from allowing them to live. Shows skill with sword by parting silk with his katana; uses circular saw to construct spice rack in shop. Also, he is a standout on the cross-country team, leading his squad to victory over arch-rivals Samurai Prep.

Enters Workforce. Begins as entry-level associate at Ronin & Ronin. Pulls 80-assassination weeks. Rises through the ranks quickly and is assigned a corner dojo. At office party, colleague advises him, “slow down, you’ll have a heart attack.” Ninja promptly pulls out own heart. “This will preempt future aggression,” he says, hurricane-kicking his aorta. For good measure, kidney-punches his kidney.

Romance. Falls in love at first sight when he meets the Warlord Takahashi’s daughter. Assassinates her. Sighs when he remembers her lovely face for rest of ninja life.

Vacation. Looks forward to relaxing vacation for months. But when the Spice Road is closed for repairs and the Murasaki ferry sinks, the “relaxing vacation” becomes a nightmare. Even the ninja’s deadly vacationing skills are no match for an unfortunate series of delays and transfers.

Mid-Life. Comfortably successful, the ninja’s simple world is thrown into a tailspin when he notices a gray hair. When the appearance of firearms renders martial arts obsolete, a full-scale mid-life crisis ensues. Suddenly unemployed, the ninja tries hand at bonsai, metalworking, calligraphy, Go, and intermediate bonsai. Finally ends up as cross-country coach.

Retirement. Watches as country Westernizes, reminisces about bygone days. Sips iced tea, ninja-style. “Will we fight again, old friend?” he asks his trusty katana. The question echoes. Will the ninja strike again? No.

2003-01-08T07:19:00.000-08:00

WHAT THE ...? Larry Summers busts a move to Nelly's "Hot in Herre".

2003-01-07T17:33:00.000-08:00

AN ESPECIALLY ERUDITE critique of The Two Towers film.

2003-01-06T07:32:00.000-08:00

BLAST FROM THE PAST. Turner Buford alerts me to the following interesting passage from 1 Harv. L. Rev. 35 (1887):

In publishing the first number of the Harvard Law Review the editors feel it necessary to offer a few words of explanation. The Review is not intended to enter into competition with established law journals, which are managed by lawyers of experience, and have already a firm footing with the profession.

Our object, primarily, is to set forth the work done in the school with which we are connected....Yet we are not without hopes that the Review may be serviceable to the profession at large....

It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received. If we succeed, we shall endeavor to enlarge our field as much as is consistent with our plan. If we fail, we shall at least have the satisfaction of believing that our work has been honestly done in the interests of the Law School and of its alumni.

While I think much of the self-effacing humility seen in nineteenth century American writing is more art than heart, it is a decidedly different tone from today's law reviews. Of course, Volume 1 was facing considerable uncertainty -- unlike Volume 1, today's Review is firmly established as well as, quite fortunately, solvent.

2003-01-03T17:00:00.000-08:00

TOLKIEN BLOGBURST. Today would have been old J.R.R.'s eleventy-first birthday, and in honor of the occasion, Meryl Yourish has collected a number of links to Tolkien-related posts.

2003-01-02T15:23:00.000-08:00

POSSIBLE MISTAKE IN THE TWO TOWERS? Michael Scoville perceptively notes that in the scene where Frodo, Sam, and Gollum are on a hill watching some of Sauron's troops march through the Black Gates, the troops approach from the west, when, according to the book, they are the Easterlings, who should approach from the east. (Yeah, yeah, there could be a mountain pass that causes them to hook around, but still...)

2003-01-02T06:54:00.000-08:00

ALTERNATIVE TAKE ON THE TWO TOWERS MOVIE? A female friend writes: "[T]he thing I don't understand is how come Legolas doesn't get any fair maidens. He's not exactly roadkill, so how come Aragorn gets all the action? I mean, are they implying that he's... you know, 'elfish'?"

2002-12-29T18:20:00.000-08:00

ECO-TERRORISM AT THE MOVIES. During a recent trip to the theater, I watched as the property of a budding industrialist was savagely destroyed by a group of radical environmentalists. These rabble-rousers marched in, smashed the machines, and even broke a dam (generally recognized as violating the law in war) in order to flood factories. Why? Because the owner of the land had decided to convert idyllic (but unproductive) forestland into a foundry and defense contracting business.

That's right. I'm talking about the Ents, and their march on Saruman in The Two Towers.

Now, if you're like most audience members, you probably cheered the Ents as they razed Isengard, the walled area where the sorcerer Saruman had for generations lived in his tower, Orthanc. Apparently I'm in the minority, but this widespread support for the Ents surprised me, because Saruman was a budding industrialist, a captain of Middle Earth's economy who supplied work for thousands of orcs, from the foundry workers to the cooks. After all, maggoty bread doesn't make itself. The Ents, on the other hand -- now talk about total tree-huggers.

While I'm sure Treebeard and his Entish friends thought they were doing good, their perspective seems rather limited: sometimes forestland should be cleared for industrial purposes. Isengard may not have been "pretty" after Saruman put it to its more productive use, but neither was nineteenth-century Manchester. On the other hand, there is a certain beauty to efficiently operating industry. Moreover, an admittedly nasty and dirty initial stage of industrialization is often a prerequisite for raising standards of living in the long run. Indeed, the Ents' forests might be better protected a few hundred years' down the road had they not destroyed Saruman's factories, for the technologically advanced society the Ents helped to stunt would be better prepared to protect and conserve environmental treasures. Rather than Saruman, the Ents really should be worried about agrarian Gondor and Rohan, who inevitably are going to bring slash-and-burn techniques to Fangorn Forest as their populations increase without technological improvements to raise the productivity of lands already cultivated.

In the end, it would seem that both Ents and moviegoers are a bit short-sighted about Saruman and Isengard. One can only conclude that, once again, the elves are behind it all.

2002-12-29T13:43:00.000-08:00

THE ADAMS FAMILY. Finally got around to reading David McCullough's fine biography of John Adams, which I've had sitting in the queue for a year. The general raving about the book is justified -- it is a captivating read -- and I wish I had gotten to it earlier. While all due credit should go to McCullough, especially for subject selection and for organizing and filtering the vast amount of writing John Adams and his relatives and friends left behind, the real reason the book is so compelling has to be the magnificent quality of the primary sources McCullough draws on and quotes from at length, mostly John Adams's diary and the wonderful letters he and those close to him (especially Abigail Adams) left behind. Take this exchange with Abigail, who wrote to him while he was away during the First Continental Congress:

If particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any law in which we have no voice or representation. That your sex are naturally tyrannical is a truth so thoroughly established as to admit of no dispute, but such of yours as wish to be happy willingly give up the harsh title of master for the more tender and endearing one of friend....Men of sense in all ages abhor those customs which treat us only as vassals of your sex.

To which John replied:

I cannot but laugh....We have been told that our struggle has loosened the bands of government everywhere....But your letter was the first intimation that another tribe more numerous and powerful than all the rest were grown discontented. This is rather too coarse a compliment but you are so saucy, I won't blot it out.

Depend on it, we know better than to repeal our masculine systems. Although they are in full force, you know they are little more than theory. We dare not exert our power in its full latitude. We are obliged to go fair and softly, and in practice you know we are the subjects. We have only the name of masters, and rather than give up this, which would completely subject us to the despotism of the petticoat, I hope General Washington and all our brave heroes would fight.

Pp. 104-05. While one could easily adopt a feminist approach to these excerpts, viewing Abigail as speaking truth to power and John as the honey-tongued patriarchal oppressor, I think in this case that would be a bit much; I tend to agree with McCullough that both writers are really being playful. In any event, the whole book is filled with similarly memorable quotations. The Adamses' letter-writing was honed beyond even the high standards of the day due to the cumulative decades of separation between John and Abigail, while he was away from Massachusetts at the early Congresses and Constitutional Convention, and during his many years as an American envoy in Europe. Undoubtedly, this celebrated couple wouldn't be nearly so celebrated had they not been separated by John's patriotic duties during much of their marriage, which led to the remarkable mass of letters between the two, which allowed McCullough to paint a particularly insightful and personal portrait of one of the Founders.

2002-12-17T15:52:00.000-08:00

DAVID BRIN ON TOLKIEN. Wonderful piece. I couldn't agree more.

2002-12-16T14:34:00.000-08:00

LAW REVIEWS REDUX: A "STRAW OMAN"? Nate Oman eloquently critiques a position he made up. Taking me out of context, he states that I "see[] the continuation of law reviews for the simple reason that 'students don't want to give up power.'" In fact, in the post he takes that from I was offering a reason the real "solution" to the legal academic publication problem -- keeping student-subcited journals but handing over articles selection for those journals to professors -- will probably never happen. Of course it's true that if academics want to start their own journals law review editors can't stop them, (and indeed there are a handful of these, as I pointed out in the very post Nate critiques) but if you want a painstakingly subcited journal, it's going to have to be done by students, and they're not likely to give up the concomitant power of article selection once they have it.

UPDATE: Read Nate's worthwhile surreply. He accuses me of resorting to the "if-it-is-a-good-idea-it-is-what-I-meant principle" (I prefer to call it a "sympathetic reading"). I certainly prefer that approach to the "if-it-was-in-a-parenthetical-it-must-be-his-main-argument-aproach" employed in Nate's original post.

2002-12-15T09:09:00.000-08:00

SNL POLITICS. Even though it was at times painful, I generally got a kick out of Al Gore's appearance on Saturday Night Live last night (though he wasn't half the showman John McCain was). But things won't really get going until they have Clinton: he could be both host and musical guest. And I don't even want to think about the possibilities for inappropriate skits.

2002-12-14T07:56:00.000-08:00

STUDENT-EDITED v. PEER-REVIEWED. Juan Non-Volokh explains why student-edited law reviews promote academic integrity more than peer-edited journals in other disciplines. The reason -- only law students, paid in prestige, would/could actually painstakingly look up and check every single footnote in the original source. (This process of verifying each footnote is called "subciting", and some reviews actually do it twice per piece.)

So every discipline should go to student-edited, right? Maybe not. The part of the the debate Non-Volokh doesn't go into is the claim that law review editors don't know enough to be able to tell a worthwhile contribution to the field from a candy-coated but academically uninteresting piece. Only professors, or so the argument usually goes, are qualified to do article selection (though I've never heard the claim that students aren't qualified to subcite!). Others counter that student selection keeps the field fresh, helping the legal academy open up to new arguments faster than other fields, where old fuddy-duddies act as gatekeepers and slow down the rate of change in the discipline. There are elements of truth to both views, but the reality is that law review editors are not about to give up their selection power -- one of the real perks of membership -- when they are the ones doing the painstaking labor of subciting (or maybe just because no one likes to give up power once they have it). Thus, it seems unlikely that many peer-reviewed legal journal are going to get going (though there are some) because of path dependency. It may have been happenstance at the start, but the oldest student-edited law reviews have been around for over a hundred years now, and for better or for worse, they're the name brands.

UPDATE: Sasha Volokh offers a nuanced take on the same issue, with some insights from his also-field, economics. Though I wonder if the kinds of sophisticated catches he talks about aren't already largely made thanks to the practice of circulating drafts to ten or twenty other academics. (Check out the shout-outs in the first footnote of just about any law review article. It's like something from a rap/hip-hop album liner.)

2002-12-10T21:14:00.000-08:00

LAW STUDENT BLOGGERS, WEEK IN REVIEW. Warm up your laptops! Frantically skim your outline! It's exam time here in lawschool-land, but which way does that cut? Either we're not posting much because of the press of work, or we're posting plenty to procrastinate.

The first camp includes John Branch (last post Nov. 27) and LawMuse. These people are intelligent, apparently allocating their non-study time to sensible pursuits like sleeping, eating, or decompressing in front of the TV. The vast majority, however, seem to be blogging up a storm. Most seem to be chronicling the pressures and anxieties of exam-time: Nikki Furrer comments on exams, Sua Sponte brings the 1L nostalgia flooding back, Andrew Raff presents a photo-essay of sorts, and Waddling Thunder has a host of things to say on examtime, perhaps most provocatively an instrumentalist equation of dating someone within the school with acquiring a safety lock. (But the costs, Waddle, the costs!) Paul Gutman takes on course evaluations and whether they should be given right before exams (no) while Kitchen Cabinet is posting so prolifically you hope none of them have exams with word limits. Acute "exam syndrome" seems to have struck some unfortunate bloggers. In a paradoxical blend of anonymity and megalomania, Alice W. unilaterally declared yesterday to be "All Alice All Day." I guess it is a mad tea-party, though. Retrorocket facilitates this quixotic desire for simultaneous recognition/nonrecognition, and I will too. (Hooray Alice.) And Chris Ward confronts some kind of anthropomorphized exam-demon voice. Seek help, Chris!

All told, an interesting and motley lot. Good luck, all, good luck.

UPDATE: Turns out Kitchen Cabinet does not have exams until after the break. Yet another reason to wish I was at YLS. (Wait a second, didn't I always gripe back in college about postbreak exams hanging over my head like a Sword of Damocles during the holiday...)

2002-12-09T21:17:00.000-08:00

THE GREAT BLOGSPOT RIP-OFF. Even though I paid for "ad-free" blogspot, I still get ads on my archive pages. What gives? Is this common? This doesn't seem "ad-free" to me. I want my money back. Waaa!!!

UPDATE: I've republished before, and it didn't seem to fix things, but this time it mostly has. But what about this? Why does that archive have an ad, while everything else (including an earlier archive) does not?

2002-12-09T20:54:00.000-08:00

YOU'VE GOT SPAM (A ROMANTIC COMEDY TO BE RELEASED NEXT SPRING?) I just received my sixth request this week to assist in a very urgent, confidential transfer of $28.2 million from a Nigerian bank account to one in the U.S., for which I would recieve a whopping 25 percent. Alas, I had to ignore all of these lucrative opportunities since I'm busy with exams...

I predict that in 6 days, the Internet will be rendered useless by spam. (Or at least it will be for me, since my email address has been available on several websites and has been spidered and databased a million times already).

2002-12-09T18:02:00.000-08:00

INTERESTING GUARDIAN ARTICLE by John Yatt arguing that Tolkien's fantasy epic is racist. Perhaps I've just got an overinflated sense of myself, but there are definite strains of my Elvish Propaganda piece from this summer. Of course, my post was more directly about class than race, and was tongue-in-cheek to boot, but consider the following: My post, which got fairly broad exposure thanks to InstaPundit, opened with the line: "Something is rotten in the state of Middle Earth." In the second paragraph of John Yatt's piece, he writes: "I began to suspect that there was something rotten in the state of Middle Earth."

Hmm...

2002-12-09T17:12:00.000-08:00

WORD OF THE DAY. Thalassocracy: naval supremacy.

Even better than gerontocracy, rule by elders.

2002-11-29T21:29:00.000-08:00

A HUNDRED YEARS FROM NOW, everyone will have a George Foreman Grill. (It's almost that way now) Indeed, the generic name for "grill" will be "George Foreman," and people will comparison shop George Foremans (As in, "I just love my Britney Spears Jr. Fat-Reducing George Foreman. It's the best George Foreman on the market!"). The fact that George Foreman was a boxer will be a trivia question. In Britain, by then officially an international park serving American and Chinese tourists, locals will develop clever abbreviations to the delight of Futuro-Anglophiles everywhere: "I have to use the W.C., can you watch the G.F.?" And back in the U.S., "George Foreman" will even be made into a verb, replacing "grilling" -- as in, "C'mon over, we'll George Foreman up some steaks, have some beers, and watch the futuristic ninja-sport that is popular in the future."

I hope I live to see that day.

2002-11-26T09:02:00.000-08:00

MY OP-ED on the recent "speech code" controversy at Harvard Law School is up. Thanks to Jurist for providing me yet another forum in which to yammer on.

2002-11-24T20:35:00.000-08:00

NOW THIS is a law school I like.

2002-11-21T20:44:00.000-08:00

SOMETIMES LAW STUDENTS can make me very sad indeed. I recently came across the so-called "RAP Rap" (thanks to Randy Kozel for alerting me to its existence). 31 U. Toledo L. Rev. 55, 68-69 (1999). Imagine an environment -- first-year law school -- in which some poor 1L, shackled to a library carrel and a property casebook, is so deprived of human companionship he produces something like this:

The Rule Against Perpetuities
Can really put you on your knees
A life in being plus 21
Is the time for vestedness to begun
If you ain't got it by that time
Gotta move on and do the next rhyme
The offending language, strike it out
It don't matter none if you cry and pout
Your contingent remainder, where did it go?
You see it was void ab initio
Executory interests are fair game too
And, I think you know just what to do
Apply the steps, go 1-2-3
And see what interest is left to "B"
A life in being plus 21
Is the time for vestedness to begun
If you ain't got it by that time
You just move on and do the next rhyme
The offending language gets struck out
It really don't help if you scream and shout
Your executory interest, where does it go
You say it was void ab initio
You might get a chance to "wait and see"
But this is a rule of property --
Uncompromisingly lethal rule
Defeats intent no matter how cool

Kidding of course. I greatly appreciate the "RAP Rap", revealing my own warped sensibilities. Kudos to the juristic Eminem who penned these lyrics -- David Pelten, wherever you are, props. I'm definitely going to find a way to cite to this somewhere in my note, 116 Harv. L. Rev. (forthcoming June 2003).

2002-11-11T21:37:00.000-08:00

HARRY POTTER GETS FLIPPED in Slate. Strains of my Elvish Propaganda post (now timely again with Two Towers roughly a month away), and I might as well plug my ever-childish Britney Spears Meets Harry Potter dialogue -- a page I developed soley to see how much traffic it would generate (a lot) -- which is no doubt becoming less entertaining by the minute as Britney falls off the radar screen of public consciousness.

2002-10-20T12:58:00.000-07:00

A GOOD TIME TO BE UNEMPLOYED? I've been wintering the bum economy in law school, but many of my college friends went off into a booming business world in which fledgling techies, I-bankers, and consultants soon found themselves without as much ground to stand on as they expected back in 1999 or 2000. As the layoffs began, there were plenty of negative effects -- grad school application rates soared, and schools at all levels became more selective, while jobs were suddenly hard to come by. Seems pretty bleak, right? The years beginning 2001 would finally teach my generation about reality, responsibility, and humility.

But would it? Having made much more than anyone our age should for a few years, and finding themselves with savings complemented by generous severance packages, many of my contemporaries have found that being laid off is the best thing that ever happened to them. Previously chained to their desks with golden handcuffs, masses of well educated, hard-working, optimistic young people are suddenly finding time to enjoy life: to travel, to go out on weeknights (every night), to see their friends. I've seen this phenomenon -- layoffs coupled with an exuberant (re)discovery of fun -- in many of my peers, and found it interesting (even a cause for some slight jealousy). A story in today's New York Times confirms that this phenomenon is even broader than what I've seen -- a whole Manhattan subculture is developing consisting of laid-off Wall Streeters in their twenties with some financial cushion and nothing to do.

While at first I took great pleasure that I had countercyclically "gone law-school" when the future looked bright, only to have the dotcoms crumble immediately and the analysts start sweating bullets soon after, I'm starting to wonder if I'm missing out on the great Bohemian moment of my generation. I predict that as America's educated youth rediscover life outside of models of conventional success, many will look back on this time as a formative period...though not just for the realization of our economic fragility. Indeed, quite the opposite -- as kids a couple years out of college stretch their severance packages and savings into a year or two of bumming around New York and Europe, I have little doubt that the resulting social groups will be responsible for my generation's equivalents of On the Road and The Catcher in the Rye.

2002-10-13T10:36:00.000-07:00

JUMPING THE SHARK. It's probably in your vocabulary already, but in case you were ignorant like me, gentle reader, read on: "Jumping the Shark" refers to the moment when a good television show starts going downhill, because it's run out of entertaining ideas. The term apparently comes from a Happy Days episode where Fonzie jumped over a shark on jetskis while wearing a leather jacket, or something like that.

Of course, the possibilities for a concept as rich as "Jumping the Shark" range far outside the context of television. The other day, I asked a couple friends when they thought Richard Posner had "jumped the shark," and everyone immediately agreed it was Sex and Reason.

2002-10-09T08:59:00.000-07:00

GAIUS QUOTE OF THE DAY. "[I]f one stipulates for a thing which cannot exist at all, such as a hippocentaur, the stipulation is likewise void." Gaius, Institutes, Book. III §97a (F. de Zulueta ed. & trans., 1946) (emphasis added).

Good to know.

2002-10-08T07:03:00.000-07:00

WAR LIBERALS, WHERE HAVE YOU GONE? A New York Times article reports what everyone knows: most Americans see Republicans as taking national defense more seriously than Democrats, and as being less afraid of going to war. Nonetheless, this widespread belief seems to be more the product of great PR than historical reality. Starry-eyed pacifist Woodrow Wilson presided over U.S. involvement in World War I; FDR and Truman saw World War II to the end; Truman started the Korean War; Kennedy and LBJ "Americanized" and widened the war in Vietnam. Not all of these wars may have been ideal, but the fact remains that Democratic Presidents have hardly been afraid of going war. In fact, it was the same people who built the welfare state who built the military state (and the welfare state and the garrison state are not without some similarities). It was Eisenhower (not Noam Chomsky) who coined the phrase "defense-industrial complex." Indeed, only a Democratic president has dropped the Bomb. Against this, the Republicans have Eisenhower's turning the tide in Korea, Nixonger's long-winded wrapping up of Vietnam, Reagan's operations in Grenada, and Desert Storm. While certainly these military activities were completely respectable and important, and the Republicans have come a long way from their isolationism at the beginning of the twentieth century, it hardly seems to follow from any historical fact that they're unequivocally the party of war.

Yet, that's what everyone seems to think. Even the Democrats themselves, who seem to have forgotten where they come from. It needn't be that way. Big armies, after all, are just another form of big government.

2002-10-03T16:25:00.000-07:00

THEY'RE JUST AS EXCITED AT MIT about the new LOTR movie, and the anticipation has manifested itself in this brilliant spoof. (Note, this particular frat seems to give the number 22 great significance)

OK, enough geeking out for today.

2002-10-03T16:18:00.000-07:00

NOW THAT THE TRAILER IS OUT, I'm even more excited for the The Two Towers premiere than I was before. One question: Why is Legolas such an assassin? Not that I'm against it, but I don't remember him being a ninja in the books. Who can forget him running across the cave troll's chain in the Moria battle, or his two-orcs-with-one-arrow move towards the end of Fellowship? In the new Two Towers trailer, we see him surfing down a castle stair on a shield or plank or something while furiously shooting arrows. For some reason, Peter Jackson has made him into a remorseless killing machine. And what about poor Gimli? As far as I can tell, he's completely useless. Anyway, I was wondering if anyone else finds it a little weird how Legolas has been made so much more formidable than the rest of the Fellowship combined. Is there a textual basis for this?

2002-09-28T14:39:00.000-07:00

WADDLING LAPTOPS. Waddling Thunder offers thoughts on the great laptop debate. Says Waddle: "The simple answer is that they're part of modern life, and it borders on the totally ludicrous to exclude them." I hear you, Thunder, but you're setting up a straw person. Just because laptops are a part of modern life doesn't mean they make any situation better. Cell phones are no doubt a part of modern life, but that doesn't mean talking on a cell is better than talking to someone in lo-tech face to face when you can.

Thunder makes the case for classroom laptops on utilitarian grounds: "[F]or work, the computer wins every time." Now, I agree that a laptop (or desktop) is much, much better for composing and writing; I use it constantly; I take mine to the library to work on my outlines and papers, I use it for exams, and even to blog (I know, pretty revolutionary). But I think Waddling, and the other defenders of laptops, display a widely held misconception that the goal of attending a law school class is simply to generate as much text as you can. As if at the end of law school those with a million words of notes win out over those with 200,000. I so often see fellow students generating four or five-hundred pages of transcript per class, which overwhelms them when it comes time for finals. Not using a laptop forces you to actually condense your daily takeaway from class (unless you write shorthand). While Waddling Thunder and others would no doubt see this as a loss of precious data, condensing a vast amount of material into something usable is actually pretty important. Taking notes by hand forces you to do this. Moreover, taking notes, whether by hand or by laptop, is hardly the most important part of what's going on in a law school classroom anyway. Rather than the factual details of this or that class, the general "smell and feel" of legal argumentation is much more important. If you're paying attention actively and trying to anticipate the professor -- rather than typing everything they say -- you'll come out of class with something much more valuable than a large MSWord file: actual skill in legal analysis. Finally, the argument that "my handwriting is crap" and I can't function without my laptop because I'm a scriptographic cripple leaves me skeptical: most law students were outstanding, or at least competent, undergrad students, and that was well before the proliferation of laptops in the classroom. Notetaking is actually much more important in undergrad lecture courses than in the active-learning socratic environment of the law school classroom, yet they clearly survived in college.

No, there's something more to laptops in the classroom than utility, whether based on rampant misconceptions, herd mentality, or conspicuous consumption.

2002-09-27T07:57:00.000-07:00

CARBONATION BIAS. I have to applaud the data-collection effort of The Great Pop v. Soda Controversy. (link via Paul Gutman) But both the site itself and Paul's links refer to it as only the "Pop v. Soda" Controversy, when even their own data show that the entire Southeast is clearly "Coke" country. Does the large part of the country that says "Coke" not count? By just calling it "The Great Pop v. Soda Controversy," the framers of this experiment reveal their regionalist bias.

(Full disclosure: As a kid from the Florida Panhandle (who's been living in Boston going on seven years now) I still say "Coke" at least fifty percent of the time...)

2002-09-26T16:36:00.000-07:00

LAW STUDENT BLOGGERS, WEEK IN REVIEW. What's riling up law student bloggers this week? ("sblawggers"?) Thanks to the miracle of Pitt's Jurist website, we can quickly find out. The fabulous Alice at A Mad Tea Party is clearly thinking about becoming a legal academic; she knows way too much about this kind of thing. She also adds another squib on laptops. But more important than that, who is the mysterious Alice? What is this "Boston-area law school" she talks about? She (?) employs a wide range of camouflage and misdirection. But someday, eventually, she will misstep and give herself away.

John Branch, the Tarheel Pundit, is evidently surfing the web more than me; maybe he's using a classroom ethernet hookup. Of particular interest is his Jay and Silent Bob news. By contrast, Nikki Furrer, 1L, is actually writing about law school: kvetching about class rescheduling (but see JMBzine celebrating torts cancellation), commenting on study-aid-company-induced grade anxiety, questioning the law school decision, and mentioning laptops. (I can't help but add this: you can't draw one of Arthur Miller's intervenors "parachuting in" on a laptop nearly as easily as with pen and paper). Sua Sponte takes on the somewhat surreal September ritual of on-campus interviewing, not to mention more on laptops in the classroom.Finally, Waddling Thunder, who writes with a British accent, provides a number of incisive or at least entertaining musings on law school. On law reviews, Waddling Thunder tacitly notes the "sorcerer's apprentice" aspect of law reviews, in which students actually "gatekeep" for their professors. In one sense it's absurd or at least a little crazy that inexperienced students get to have a hand in shaping legal academia. On the other hand, the fact that students are gatekeepers to even the most prestigious reviews in the field helps combat ossification; unlike most academic disciplines, new and exciting ideas don't have to win over the old curmudgeons to get published where they will be noticed; as a result Kuhnian "revolutions" may occur more easily in law. But it's still weird. Even more delightful is Waddling Thunder's effort to develop a typology of law students, including "cacklers" and "sidlers".

That is to say, law students everywhere are blogging about things intelligible to law students everywhere. Ah, universalism. I wonder what exactly it is that creates this shared culture at so many different campuses. Media portrayals? Expectations? The interpenetration of faculty trained at other schools (or who previously taught at other schools) moving around from school to school? The triumph of the Langdellian law school? The fact that we are all training for similar systems of work? In the ancient Roman Empire, lawyers were split between the Sabinian and Proculian schools, each with their unique cultures and quirks. And while quirks may continue today (the Harvard-trained say "Smith v. Jones," while Yalies (apparently) say "Smith against Jones") what is most striking about my perusal of law student bloggers at several schools across the nation is the commonality of their experiences.

It is just that commonality that provides Alice with a cloak of secrecy...

2002-09-26T11:32:00.000-07:00

ON SAFARI. Ah, the thrill of the hunt. Though the illumination here in Darkest Africa is more than I might expect, the game is as ferocious as I dreamed. Roughing it here in the bush, far from the comforts of civilization, is what manhood is all about. I clean my rifle, and ask my porter to fetch a spot of coffee with a shot of my favorite brandy. Whether I bag a rhino or not today, I will return to my tent for evening massage knowing that I am living the primeval, natural life the Lord intended for men.

I look across at my native guide and extend my palm, silently signaling for him to fall back and prepare a luxuriant body wash of natural oils and herbal essences. But this will be for my bath after the hunt. Now, I pursue my quarry. Kneeling, I carefully examine the spoor of the gazelle I have been tracking these last few days. Do I go South or Southwest? My thoughts are interrupted by a stampeding horde of rhinoceroses mixed with elephants, followed by a group of bounding gazelles. I clear my head. Southwest. I press on, in pursuit of my elusive prey.

The African interior is not a hospitable environ for the white man. Not only are tropical diseases a threat, but the natives—with the exception of the Swambuluu cannibals who so often invite me to dinner—are hardly cordial to white hunters. Never have I been invited to their drum-beating rituals, or been allowed into the sacred hut, where I speculate they keep a very nice synthesizer. This synthesizer, it is fabled, can produce the haunting drum rhythms of the jungle without a human hand to play it.

But I digress. I must return to the hunt, for I have lost the trail of the mighty gazelle. Such is the hunt. But what is this? It seems, my friend, that we have stumbled into gorilla country. How do I know? The telltale broken brush is like a sign that says “Welcome to Gorilla Country” to the experienced tracker.

What’s this? A sign? I pause to read the inscription: “WELCOME TO GORILLA COUNTRY.” As I ponder the message, an enormous silverback leaps in front of me, bellowing his challenge. I thrill for this moment when hunter faces hunted, and revel in danger. Wanting the battle to be equal, I toss aside my rifle, hunting knife, and superior human intellect.

But the gorilla does not charge. In the universal language of primordial struggle he lets me know that he too desires the battle to be fair. Wait, maybe he is clearing his throat. No, he wants to…thumb wrestle. Invoking the ancient ritual, we declared thumb war between man and beast right there in the midst of the African wild. It was a mighty contest.

“Best of three?” I ask, when the matter is resolved. The gorilla picks up my discarded gun and aims it in my direction. “Just kidding,” I say, handing the brute my money-pouch filled with crown sterling.

The gorilla hefts his new treasure. Having no use for money in his primordial violence-based society, the gorilla hands it back and disappears forever into the trees.

For years after the safari, that battle against the gorilla was a vivid memory. Then one day, I suddenly forgot it. Luckily, I remembered it again. These things happen when you get older.

2002-09-23T20:10:00.000-07:00

LAPTOPS, THE REAL STORY. A bit about laptops in one of my not-so-recent posts apparently sparked a modest bit of debate over laptops in law school classrooms (nicely summarized by Professor Cooper; see Cooper for some anti-laptop advocacy; see also A Mad Tea Party for the strong form of the pro-laptop position).

In part, the debate over laptops has revealed surprisingly strong views on both sides because it pits professorial desire for control over the classroom against students' autonomy- and rights-based claims. On the rights-based side, consider Alice: "I pay too damned much not to be in control of my educational experience." I admit this has a nice, Patrick Henryesque ring to it, but arguably students waive their "right" to be in control of much by the fact of their paying. If I wanted to be in control of my educational experience, I don't think I'd be in school. No, I'm specifically paying people -- or the future me is paying people -- "too damned much" specifically to control my educational experience for me. If not that, what the heck is future Garrett paying for?

Just kidding. The above argument is premised upon far too idealistic a conception of law school. Beyond "education," Alice and I are paying for credentialing; in the guild-hall world of law, it's the paper degree that allows you to reap the benefits of artifically low supply caused by high barriers to entry. In such a world, one might as well have as much personal freedom as possible while counting the days 'til admittance.

Rather than Professor Cooper's concern with how well students using laptops are able to pay attention, an effect I don't really care about except to hope that it redounds to my benefit, I'm just fascinated by the way my classmates have completely fetishized the laptop. It's become the paradigmatic law school accessory; people feel they have to have one, and it can't be any other way. In a class of over a hundred, maybe five or ten people will use pen and paper. You just have to look at that vast sea of laptops, maybe $200,000 worth of hardware arrayed in militaristic semicircles in each class, to realize that it's not about educational value but conspicuous consumption value. He sports a sleek new Vaio; she flaunts her cute, vaguely intellectual iBook. Laptops in law school classrooms are more about haute culture than learning.

Which brings us to why I don't take a laptop to class, despite owning one (and in fact typing on it right now). Is it because I think a laptop would put me at a disadvantage? Maybe, but I doubt it. Really I don't bring a laptop to class because they're heavy, and casebooks are heavy enough as it is. I'm also afraid I'd be at risk of breaking it if I carried it around all the time. (Seriously, many of my classmates lose whole swathes of their notes each semester due to busted laptops). But perhaps above all else, I don't tote my 'top to class simply because everyone else is doing it. Despite being a ruthless conformist, I like to pretend that I've got a contrarian streak. So I don't take my laptop to class. (But I'm not a Luddite; I love technology, and would probably take my laptop to class if other people didn't).

2002-09-22T11:56:00.000-07:00

ACCORDING TO GOOGLE, this blog is the leading site for "sexy law students." If only!

2002-09-16T20:55:00.000-07:00

A RECENT COMMENT suggested that international law was useless or worse, because law is only as good as its enforcement mechanisms, and the only "enforcement" for international law is the power and will of the United States. According to this "realist" line of thought, all that matters is states' military and economic power, and international law is just a bunch of niceties which look great on the outside but ultimately ring hollow, and are more trouble than they're worth.

While I think this view shouldn't be ignored, I think it misses something. For one, it basically takes the model of American criminal law system and generalizes it to all "law." There you have a powerful central state, and if you disobey its rules, it will come and get you, and it has the power to (usually) do it if it wants. No doubt with this model of law in mind, the author of the comment looked for an international analogue to a police force, hovering above the states, and found none, unless it was the United States. (of course, even the U.S. criminal law system has imperfect enforcement capabilities; most crimes go unprosecuted because of a lack of resources or will on the part of investigators or prosecutors. So maybe U.S. criminal law and international law are different only as a matter of degree...)

However, this is hardly the only concept of "law" available. Historically, there have been plenty of societies without centralized enforcement schemes, which nonetheless had well-developed legal systems filled with rules that actually worked pretty well for maintaining order. For instance, in medieval Iceland, there was no centralized enforcement mechanism; rather, when someone was wronged (within the legal framework), people resorted to self-help through the bloodfeud, calling on their extended kin groups for support. Because bloodfeuds were best avoided, medieval Iceland maintained a successful legal system without any sort of top-down "enforcement mechanism." (For more on this, see William Ian Miller's magisterial Bloodtaking and Peacemaking: Feud, Law, and Society in Medieval Iceland. For a similar discussion of the way powerful social norms can emerge in the absence of (or in spite of) centralized power, see Robert Ellickson's Order Without Law).

The reason these systems work -- and the reason much of our own legal system works, enforcement or no enforcement -- is because people are by-and-large genuinely interested in settling their disputes as efficiently as possible, and in an environment of repeat, iterated play where today's adversary can be tomorrow's ally, systems of rules can emerge which are meaningful despite the absence of a centralized "enforcer." There's no reason this can't happen in international law as well. For instance, in "small-stakes" disputes, international law -- often a mix of customs and treaties -- will often settle an international dispute whether a decision is rendered by an international tribunal or by a court within one of the states applying international law.

While the threat of force always exists, force wouldn't be appropriate in many disputes. For instance, in the "Cod War" between Iceland and Great Britain, a fairly recent period of dispute over fishing rights between the two countries, Britain's nuclear capabilities were almost totally irrelevant. While the issue was one of economic importance, the realities of international affairs made the likelihood Britain would invade Iceland over this matter virtually nil. In such a case, which is hardly uncommon, international law is quite relevant and useful, and is less about a great power stepping in and flexing muscle then dispute resolution among neighbors who know they will have many disputes over time.

That said, there are certainly many situations where "international law" is invoked to justify or condemn this or that particular aggression by results-oriented statespeople. For instance, in the current national debate over the potential invasion of Iraq, recourse to principles of international law is made by both sides, and it's hard not to feel that it's just politics, and the rhetoric of international law is being used as best as possible by both sides to suggest legitimacy/illegitimacy of the endeavor, depending on the speaker's viewpoint. One could -- and many do -- say that this just goes to show that international law is manipulable and meaningless. Of course, enforcer or not, regular domestic law is hardly unmanipulable. Moreover, the concern of all sides with fitting their goals into the language of international law shows that policy elite are concerned with international law, or at least the appearance of conforming to international law, and to the extent they use its vocabulary in justifying their decisions, perhaps the principles of international law start to place some modest boundaries on the range in which raw state power can be exercised. Indeed, one of the best ways to give the appearance of caring about international law is to actually abide by it every once in a while. In an age in which the specter of nuclear annihilation still threatens us all, perhaps this is not a terrible thing.

2002-09-13T20:51:00.000-07:00

GTEXTS PRIMER ON THE BICYCLE. Bicycles. A quaint kids’ toy, right? Maybe today, but in the 1890s, the bicycle was the hot new fad. Before bicycles, people had to walk, ride horses, or be carried on a litter. Or use trains. But with the advent of the bicycle era, everything changed.

For instance, England’s Prime Minister once disappeared for a week to go on a Hertfordshire bicycle tour with his mistress. The country was scandalized—but not because of the illicit liaison. England was in uproar when it learned that the Prime Minister still rode with training wheels.

England laughed its incompetent leader out of office, and bicycling replaced cricket, gambling on cockfights, and unicycle racing as the most popular pastime. A vote in Parliament was taken, and England narrowly missed being renamed “Bikeland”.

Capitalists and Marxists alike caught on to the bicycling fad. In Czarist Russia the Bikesheviks plotted an insidious proletariat bicycle tour. In an amazing display of inter-ideology cooperation, the man who made this vision a reality was the raffish financier and ardent velocipedalist JP Morgan, who turned the mass movement into the Tour de France.

Meanwhile, children the world over tried to emulate their bike-riding elders. Playing “bicycle” was a popular pastime and many children would take great pains to build complex ten-speed racing “bicycles” at which parents only shook their heads and laughed. But Mom and Dad weren’t laughing any more when seven-year-old Johnnie won the Tour de France.

Johnnie’s glory was short-lived though. Jealous mobsters murdered the young superstar and the obscure Bicycle Prohibition was instituted. Bicycle dealing went underground, and it is estimated that several million bicycles were traded each month on the black market. The excesses of the infamous “Handlebar Massacre” led to the global Congress of Bicycles, and Bicycle Prohibition was quickly brought to an end.

In 1914, Kaiser Wilhelm of Germany first “popped a wheelie,” simultaneously starting the era of trick riding and beginning World War I, where cruel trench racing forever changed the face of modern bicycle warfare.

Since then, the bicycle fad has faded a little. But now that you know the history, you’ll be a little more respectful. And if it was you who stole my BMX Mountain Racer in fourth grade, please return it.

2002-09-13T20:26:00.000-07:00

THE MYSTERIOUS CACTUS. The cactus is a paradox. Though its surface is prickly, it has a soft, moist core. This core contains water, the “jewel of the desert,” as well as jewels, which are worth little to a man dehydrated to the point of insanity.

Never punch a cactus. Also, I don’t recommend hitting it with your face.

While the cactus is indeed prickly, it also produces beautiful flowers after rare desert rainfalls. Ah, the mysteries of the cactus! It is like a venomous viper with beautiful patterns on its skin, or like a deadly spider with a lovely fresco strapped to its back.

What’s the plural of “cactus”? Cacti? Cactuses? Only they really know.

The desert owl makes its home in the cactus. Digestive bacteria live in the owl’s intestines. Even smaller parasites live in the bacteria themselves. Who is the winner in this complex game of life? The bacteria. But they cheated.

When I was a little boy, a cactus was a good friend of mine. But we grew apart, and I left the desert for the city. Years later, I saw the cactus in a fancy downtown greenhouse. Was I jealous? No, I wasn’t jealous. In no way was I jealous.

I don’t recommend lending a cactus money.

If a cactus could talk, it would probably whisper. It would pretend to be saying something important, but then when you ask what it just said, it would say “nothing” and then be silent. Typical cactus.

I mean, why do they have to do that? I just want to be nice, start up pleasant conversation and all that, when the cactus starts pulling the old whispering routine.

Teaching a cactus how to read is difficult, and teaching it to dance is nearly impossible. But dressing it up like a Cowboy? That’s something any child can do.

2002-09-05T20:45:00.000-07:00

A COUPLE OF INTERESTING THINGS happened during the first day of international law class today. First, the professor decreed a technological experiment: a ban on laptops in the classroom. For those of you who don't know, law schools are overrun by laptops, with nearly all students taking notes on them in class. I have a laptop myself, though I don't take it to class because it's too much bother; technology is great when it's useful, but technology for technology's sake makes little sense. While the professor's theory was that laptops put students in "stenographer mode" and thus discourage them from thinking actively, I don't see how scribbling notes on paper is any less stenographic. (On the other hand, you can't play Solitaire with your pen and paper. Perhaps this was the sub rosa basis for the policy.) Whatever the merits of the professor's argument, the ceasing of the incessant keyboard-clacking was alone more than enough to deter me from dropping the class.

The second interesting thing that happened began when, without really discussing what he meant by "international law", the prof took a straw poll of how many were "for it" and how many "against it." While sensing some pros and cons, I was thinking of voting "against" because I had unresolved questions regarding international law's bases of legitimacy, plus I saw it as a way of giving the hegemonic power (i.e., the U.S.) a means to present its foreign policy decisions as if the product of neutrality and legalism. (I'm not against Metternich- or Kissinger-style realpolitik, but I am fairly ambivalent about presenting what is really just a naked exercise of power as though it were clothed in a cloak of legitimacy through "international law." I know it's asking a lot, but I guess I just like things in the sunlight, where all can see them.). Once I saw that almost no one was "against," I chose to abstain -- not because I mind being identified as in the minority, but because I didn't feel like being called on right then. Of course, the handful of people who voted "against" did get called on, and one student explained that he was "against" international law for the exact opposite reason as my above doubts: because it was too constraining on U.S. ability to exercise power abroad, and that international law's "egalitarian bias" too often impedes actual action by the U.S. While I could disagree -- probably on the grounds that maintaining the status quo is often in the best interest of the U.S., and that the "egalitarian bias" is part and parcel of this -- for now I think it sufficient to note the radically different grounds we two students used to reach the same result. Hmm...

2002-09-02T19:44:00.000-07:00

THE FEDERALIST & ORIGINAL SIN? Been skimming Christian Perspectives on Legal Thought, an anthology of short essays which I won in a book lottery. Not that I'm particularly religious, but I've found it to contain some quite interesting stuff. For instance, Michael McConnell argues that the various checks and balances of American government are rooted in a firm belief that human government will never overcome original sin. Professor McConnell cites Federalist No. 10: "As long as the reason of man continues to be fallible,...different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other." CPLT at 7. (And of course, we all remember from high school that no, men are not angels.)

Now, anyone waiting in the wings to declare a theocracy should keep in mind that along with Federalist No. 10, Madison also authored the famous Memorial and Remonstrance, in large part pronouncing the doctrine underlying the First Amendment's religion clauses. Still, Professor McConnell proposes an interesting idea and makes a nice connection. Certainly the founding generation was steeped in protestant theology, even if many of the founders themselves were dyed-in-the-wool rationalists and iconoclasts.

That said, Christianity is not the only route to cynicism regarding human nature. Indeed, the snippet from Federalist No. 10 is also closely in line with experimental psychological insights into social cognition. As you can read in Ziva Kunda's sweeping survey, scads of experiments show that we human beings consistently engage in various forms of "motivated reasoning," tailoring our thinking to serve various ends, from justifying our selfishness to ourselves to making the "fundamental attribution error," for instance, chalking up random unfortunate events to other people's faults when it happens to them, but characterizing such setbacks as "bad luck" when it happens to us.

Of course, Christianity and psychology needn't be mutually exclusive, at least when it comes to human fallibility, which they seem to agree on wholeheartedly, though not necessarily agreeing on that fallibility's source. At the very least, my own fallibility (not to mention yours) is definitely something I can believe in.

2002-08-30T16:08:00.000-07:00

SOLUTIONS TO HOUSEHOLD EMERGENCIES:

Ice cream sundae on the carpet? Wipe up the spill with a damp cloth. Before the stain sets in, soak the area with a bit of club soda.

Too many science fiction novels lying about? Render them unreadable by pouring club soda on them.

Spilled spaghetti sauce on blouse? Splash club soda on everyone in the room, distracting them while you quickly change clothes.

Thirsty? Drink water. Conserve your supply of club soda for more serious emergencies.

Ruined priceless artwork by spilling club soda on it? Quickly neutralize the damage by applying still more club soda. Club soda can get anything out.

Need to create a stain that even club soda can’t get out? If club soda wants to do this, it can. Just like if God wants to make a rock that even He can’t lift, He can ask club soda for help.

Earth on collision course with giant stain-causing asteroid? Mix 1 part club soda with 2 parts alcohol. Drink

Out of club soda? Out of luck. Let’s just say you are up a certain creek with neither a paddle nor any kind of club-soda based propellant.

2002-08-30T08:33:00.000-07:00

THANKS TO THIS HUMOR POST, I'm getting some traffic from people searching Google for nudist colonies. To all you weirdos who reach the site via that query: Welcome!

2002-08-29T09:25:00.000-07:00

SKYSCRAPER ENVY. Check out the diagrams at SkyscraperPage.com. It's a truly amazing site, containing diagrams of almost 5000 different sykscrapers from around the world. I spent a good deal of time just scrolling through them in the default order (by height), but you can also view skyscrapers by year (including skyscapers that haven't yet been built), or most interestingly, by city. I have to say, the skyscrapers in the East (for instance Shanghai or Hong Kong) seem to display much more artistry and innovation in design than the boxy towers of New York or Chicago, or even more staid, Toronto.

Perhaps this seeming western blandness stems from its familiarity to my eyes, though I really do think there are some genuinely innovative designs being tried in the eastern pacific rim (check out the beautiful towers being constructed in Gold Coast, Australia). Is this a sign of artistic stagnation among architects in the West? Differences in building codes?

Or perhaps the difference stems from the purposes of these towers. Skyscrapers in cities like New York are utilitarian -- they exist to do business, and function may dictate form: they fit the most people into the most space. While the same is no doubt true in burgeoning economic centers of the pacific rim -- who still have cool designs anyway -- the hyper-artistic skyscrapers in places like Riyadh are probably more driven by conspicuous consumption, constructed -- like pyramids -- to demonstrate power, wealth, and technological knowhow, not to compensate for a lack of ground-level office space. Still, Riyadh's "Kingdom Center" does look pretty cool.

2002-08-28T07:45:00.000-07:00

SOME PRETTY GOOD IDEAS for improving America-Third World relations from Douglas Turnbull, based on the example of the Roman aqueducts. Of course, the brutal subjugation by superior military force of any group that wanted political independence also worked for the Romans, though that's probably an approach we'd be better off not emulating. In any event, these problems aren't new; empires have been facing them for a long time.

2002-08-27T20:12:00.000-07:00

DISABLED SWIMMER REDUX. I recently posted some comments regarding the story of Hunter Scott, the disabled teenage swimmer whose actions in attempting to get an accommodation have helped cause results that some pretty serious commentators have criticized. While my initial speculation regarding the flipper fin didn't pan out the way I expected, it did prove fruitful in other ways. Through the miracle of people actually reading this stuff, people close to the Georgia swim league drama -- on both sides of the debate -- have emailed me their responses.

Hunter's mother Amanda sent me various materials, including a statement of the case the Scotts had prepared. While obviously she is not a neutral party, the story as she tells it -- a story not inconsistent with the counter-story, by the way -- casts the events in a substantially different light.

Hunter Scott was born with Proximal Focal Femoral Deficiency (“PFFD”), a condition which ultimately led to one of his legs being largely amputated so a prosthesis could be attached. After swimming for a while, Hunter's prostheticist recommended a swim leg of the kind some disabled divers use. Because PFFD has left Hunter with virtually no femur or quadriceps in his left leg, he does not have the muscle structure to do the push/pull motions necessary for using a flipper in the traditional way. Nor does the flipper, used by divers, float. It simply helps balance out his body in the water, something which happens automatically for "bipedally perfect" swimmers.

The clash between the Scotts and the swim league is described as follows. Hunter swam with the flipper during the 2001 season without anyone commenting. In fact, Hunter's coach went to the swim board and received permission to use the prosthetic device. Hunter also swam with the flipper in his middle school league. In 2002, as Hunter started becoming competitive with other swimmers, the swim league president told Hunter he could no longer use the flipper because it was a "flotation device." While a flipper could be a lot of things, a flotation device is not one of them. While the Scotts challenged this ruling, the league said it had made its decision, despite having never actually examined the flipper, or conducted any analysis regarding the effect of the flipper on Hunter's swimming. Hunter swam without the leg, but sent in documentation from his prostheticist that when used by Hunter, the flipper was only a stabilizing device. The Scotts also quoted from a letter from the Georgia High School Association approving Hunter's use of the flipper in competition. The league not only never changed its position, but never discussed the operation of the flipper with Hunter or his prostheticist or actually inspected the flipper. Indeed, to Amanda Scott's knowledge, none of the board members ever actually observed Hunter swimming with the flipper.

At that point, the Scotts prepared to file an action seeking an injunction. Then, as has been reported elsewhere, the board -- citing fear of liability -- disbanded, depriving 3,000 Atlanta-area youth of their recreational swim league. Blame for this is heaped on the Scott family's litigiousness. But the above account, which is largely missing from news reporting and commentary on the matter, hardly make it look as if the swim league proceeded in a very reasonable way. While the ADA certainly does not mandate that every accommodation sought in sports be granted, something Casey Martin v. PGA makes clear, the league should have to give at least some consideration to the disabled athlete's specific situation. For instance, in Martin, the claim that walking was a part of professional golf that could not be dispensed with was defeated in part by the fact that whatever "fatigue" walking induced in normal players, Casey Martin's condition guaranteed that he would always be much more fatigued than other players even if he used a cart. Of course, there was much more to the case, as "walking" was found to be "not fundamental" to the game of golf. Perhaps not using a flipper to stabilize an asymmetrical body is "fundamental" to swimming. It very well may be. However, it's clear that as a matter of law, the league doesn't simply get to say X is fundamental and have that be the end of the matter. If it was, the PGA would have won in Martin. Indeed, the league's refusing to examine the requested accommodation -- whether they would have ultimately rejected it or not -- makes the Scott's dissatisfaction with the league's actions more understandable, as well as their expectation of success in court.

Some people, of course, say the whole clash between the league and the Scott family is the result of the ADA's ambiguity. I disagree. While it certainly may be the ADA's "fault" that the clash happened, I actually think the ADA was doing its job by empowering a disabled child and his family in the face of a board that not only rejected their request, but wouldn't even do due diligence in formulating that response.

Now, it's possible to have a different vision of the ADA. Someone close to the board who asked me to remain anonymous wrote: "Hunter Scott was not denied his statutory right to compete,...only his desire to go faster. I believe that is beyond the scope of the ADA. Otherwise, we would have swimming competitions using jet skis." I've got to admit, this is nice-sounding rhetoric. Nonetheless, Casey Martin v. PGA was not just about access: it permitted the disabled Martin to use a golf cart on the pro tour, where the other competitors were required to walk. While I doubt any court will compel a swim league to allow someone to use a jet ski in swimming competition, and no one is asking for that, it's at least possible that a device to correct a balance problem able-bodied swimmers don't have, that doesn't provide propulsion to the particular swimmer, could be held analogous to Casey Martin's golf cart. While I admit that the full scope of Casey Martin remains largely unknown, that doesn't make the decision or the ADA wrong. Precisely defining general contours laid down by the Supreme Court is a task often left to lower and later courts, and the contest between the Scotts and the DeKalb swim league is part of this process.

The other problem that commentators complain about is that the swim league's lack of funding means this case doesn't get settled by a judge and jury, but by the Scott's greater willingness-to-pay, and for that reason it's a tragedy and a sign that the ADA should be repealed or narrowed. Frankly, I think such claims are a little strained. People more able to pay do win law suits; suits settle outside of court all the time; parties take into account the desire to win versus the cost of litigation and the probabilities of victory. This is not limited to the ADA. It is part-and-parcel of the American legal system. So I'm a little skeptical when see this general critique of our system is brought out as though it's a special critique unique to the ADA. Secondly, it's not like the board didn't have any options. The ball was in its court. It could have agreed to let Scott swim with the flipper, and all its problems would have gone away. Instead, it disbanded the league, taking away recreational swimming from 3,000 children, to send a message to one disabled child and his family. One might call this principled, but given that the board apparently never even looked into Hunter's condition and the functioning of the flipper given his disability, the league's treatment of the situation seems less than ideal.

2002-08-26T12:42:00.000-07:00

LET US HOPE these poor law students don't actually have to endure this.

Seriously, it's been quite flattering how much attention my law school advice has received.

2002-08-26T08:23:00.000-07:00

GTEXTS PRIMER ON COLONIALISM. There are many different kinds of colonies...

British Colonies. Hong Kong. India. Egypt. The great colonies of the British Empire. Fighting for the Queen, Her Majesty’s forces maintain order with pith helmets and a stiff upper lip.

Ant Colonies Much like in Britain, ant colonies fight for the Queen. But instead of pith helmets, the ants sport tough exoskeletons. And while the Brits have stiff upper lips, the ants intimidate opponents with their stiff, biting mandibles. Also, contrary to popular belief, very few Brits live in dirt mounds.

The 13 Original Colonies. New York, Virginia, Massachusetts, and about ten others comprised the original 13 US colonies. Breaking away from British rule, the colonies were instead ruled by Democracy. A stiff right to bear arms and the helmet of town hall meetings enforced Democracy’s harsh mandates.

Nudist Colonies. An offshoot of the 13 original colonies, nudist colonies believe in “the right to bare arms, and everything else.” Nudist colonies are among the most obedient of the colonies, maintaining order with stiff penal codes for lawbreakers.

Bacterial Colonies. Proof positive that “microscopic” doesn’t mean “can not have colonies.” In fact, these microorganisms have built a huge network of colonies, maintaining complete control over the unwitting human natives.

Baloney Coloney. A crude misspelling for the sake of rhyme, the Baloney Coloney is of little use to anyone outside a small circle of Oscar Mayer executives.

Leper Colonies. Inside the leper colony, limbs are strewn all about. Tree limbs. Inside the Body Part Bank? Money and jewels. Leper colonies are really earthly paradises, hidden from the public with a carefully executed public relations campaign.

2002-08-25T10:16:00.000-07:00

THE SECOND I START BLOGGING about how anemic weekend blog traffic is, I get a respectable traffic spike (for my humble little blog) thanks to kind weekend linkage from Meryl Yourish and then Jurist over at University of Pittsburgh School of Law. Thanks! While my blog is not soley dedicated to law -- I write about whatever interests or amuses me at the moment -- I do post about law school and law-related issues often. If that's what you're after, see my commentary on law school advice, lighthearted game-theoretic discussion of the federal clerkship hiring freeze, argument against a proposal to create term limits for Supreme Court Justices, numerous posts on disparate impact, musings on "lawyerblogging", a joke about summer associates, discussion of Islamic reading requirements and the Establishment Clause, some posts on takings and libertarians (here, here, and here), thoughts on the meaning of neutrality, an argument that the vouchers and pledge decisions are more consistent than many would like to admit, a look at the paradoxes of the "marriage penalty", an admittedly bizarre post on whether we use a rule or standard to differentiate between rules and standards, and my take on Lexis and Westlaw. My most popular pieces, however, have generally been the humorous (and nonlegal) ones, particularly my posts on Elves, Towers, and English History. Wow: looking back on it, I've generated a modest mountain of text this summer. Hope you find some of it useful, interesting, provocative, entertaining, or at least distracting.

2002-08-24T15:47:00.000-07:00

ANEMIC WEEKEND BLOGREADING. Everyone knows blog traffic dips on weekends, but do we know why? To the extent that blogs are a competitor to traditional print media like newspapers, one would expect Sunday to be the highest-traffic day of all. I can only conclude that people who read blogs -- lazy officeworkers -- lose the desire to read blogs when there isn't any work to be shirked.

2002-08-24T15:37:00.000-07:00

DOLPHINS HAVE MORE FUN. This picture of a thresher shark leaping out of the water is pretty cool.

2002-08-23T08:22:00.000-07:00

SIGNS OF GLOBALIZATION. At the same time as this, Meryl Yourish is blogging on international spam.

2002-08-22T07:35:00.000-07:00

GTEXTS GOES MULTILINGUAL. (Thanks to Pedro Jorge Romero -- it's always nice to hear your text is "tremendamente divertido," because that's exactly my goal.)

2002-08-21T18:33:00.000-07:00

SELL YOUR CELL PHONE. But not because it causes cancer. Cancer is not really what concerns me about cell phones, unless by "cancer" you mean a malignant tumor on the body of normal social interaction. The social effects of cell phone mania are far more disturbing than any attenuated evidence of their carcinogenic properties. Below I discuss a number of the symptoms. (Admittedly, my results are based solely on observed interactions among post-collegiate twentysomethings in Boston and New York. If you have data from different cultural substrata or age cohort, please contact me and we can pool our data.)

Cell Phone Users View the World Asymmetrically. Eschewing archaic, pre-cell-phone notions of "being considerate," cell phone users often call their friends while the cell phone user is in transit home and have a discussion to pass the time. Upon arriving home, the cell-phone user says "dude, I'm home, gotta' go" and hangs up, seemingly not cognizant of the fact that the other participant in the conversation has themselves been at home the whole time, and, in fact, has been interrupted in what he or she is doing. This behavior pattern suggests the cell phone user perceives the world asymmetrically. While this is speculation, such behavior may be the beginnings of a technological caste system.

Cell Phone Users Are Incapable of Medium- and Long-Range Planning. When setting up weekend plans, the majority of subjects within the twentysomething age cohort rely on cell phones. While they could agree ahead of time to meet at location X (an agreement which could be negotiated over cell phones or through more conventional media like email), the convenience cell phones offer has caused the ability to think that far ahead to atrophy. Requests to meet at location X at time Y will be met with quizzical looks and a response such as, "dude, just give me a call Saturday night on my cell, and we'll see what we're up to." However, the need to make plans ahead of time evidently did not prove an insurmountable barrier to social interaction during the vast majority of human history, during which cell phones were not easily available. Despite the seeming quaintness of "planning," as the twentysomething age cohort becomes older, their wholesale inability to plan even 12 hours in advance may present a risk to national security, as members of this group ever become policymakers.

Cell Phone Users No Longer Live in the Present. Certain African languages lack words for the future; those cultures focused on the past and the present (with what we might call "the future" also lumped into the present). By contrast, American culture is rapidly moving toward a discourse where only the future is of social significance. This concern with the future is somewhat surprising because of the atrophy of medium- and long-range planning discussed, supra, but planning social activities and the social activities themselves have become so compressed that social activities increasingly consist of little more than planning immediately subsequent social activities. At any representative social grouping of members of the twentysomething age cohort within the New York ecosystem, at least one-half of the group members will spend their time not interacting with anyone in the group, but calling others on their cell phone to plan a second social gathering, at which the main activity will be to plan a third activity. By itself this trend may appear to have negative social results, as opportunities for face-to-face human interaction are reduced. However, this is at least partially offset by benefits; as cell-phone planning of "what to do next" becomes the primary "party" activity, more harmful activities formally popular in the twentysomething age cohort such as heavy drinking and drug use are increasingly falling by the wayside.

Cell Phone Conversations are Highly Spatial. Unlike traditional, "land-line" conversations, cell-phone discourse is dominated by spatial elements. Example: "Dude, I'm at 51st and Broadway, just passed Starbucks, almost to the subway." Approximately 70% of cell-phone conversation is locational, reminding the listener that yes, the speaker is on a cell phone and is mobile. Experts are in disagreement about whether this is a positive development. Traditionalists argue that most of this spatial information is useless surplusage, and that the new emphasis on spatial discourse is undermining cell phone users' ability to reason in the abstract. Postmodernists, on the other hand, claim that all language is contextual, indeed, that its meaning cannot be separated from its socio-geographico-spatial context, and that the inclusion of this information is inherently useful. On this front, cell phone usage is a wash.

On the whole, cell phones are destructive of healthy social interaction. Sell your cell; toss your cancerbox.

2002-08-21T17:51:00.000-07:00

ALL HAIL BEAUJOLAIS. My favorite "studying" wine gets a nod from the New York Times. (And note the appearance of fellow-Garrett Garrett Oliver, who I've actually met.)

2002-08-20T21:12:00.000-07:00

GTEXTS PRIMER ON ENGLISH HISTORY. Looking at England today, you might say “there’s not much there,” or, “what a bunch of wankers.” If you had no power of speech whatsoever, you might just not say anything, or you might scribble the word “wankers” on a nearby napkin. Despite this, England has a long and glorious history.

The glory began in 1066 when William the Conqueror conquered England. He and his Norman nobles only spoke French. Though helpful for ordering at fine French restaurants, the fact that there were no French restaurants at the time rendered this skill useless. In angst, William commissioned Domesday Book, a comprehensive survey that was ironically also useless.

Later on, the War of the Roses divided the country between the House of York, the House of Lancaster, and the International House of Pancakes. Just as it seemed that York would win, a dark horse candidate named Henry Tudor forged an alliance with rural Shropshire wankers and secured victory at Bosworth Field.

Soon, the bones of the hapless IHOPers were plowed under, and the fields of war become fields of bountiful peace. Then the Black Knight came along. No one liked him.

That Black Night was Benjamin Disraeli. It was also William Gladstone, Pitt the Younger, and Winston Churchill. With so many future Prime Ministers stuck inside a single suit of armor, it was uncomfortable, especially since none of them would be born for hundreds of years.

In the wake of the Black Knight’s reign of terror, several Roundheads began lording it over the common folk with ne’er so much as an “if you please.” The Roundheads, the Shropshire wankers, and the ruthless Sicilian merchants all went to war just as a severe case of “Rump Parliament” broke out. With their strong immunities to the Rump Parliament, the Long Parliament, and the Bubonic Parliament, the wankers triumphed, ushering in the Glorious Revolution under William of Orange. Mysteriously, citrus fruits were scarce that year.

Not long after that, Sir Francis Drake left on one of his famous profiteering voyages. Upon his return one year later, he was surprised to learn that absolutely nothing had changed. After his next voyage though, he learned that everything had suddenly become modern, and that his pantaloons were seriously out of style. The Industrial Revolution had happened, and London was filled with smoke. Glory. Triumph of the Machine. Smoke. Glory. Wankers. On second thought, not much had changed.

One thing that had changed was worker unrest. The Liberals and the Tories clearly could not survive in the era of mass cries for reform, and the Wanker Party was finally formed to institute the eight-hour workday and the minimum wage. On the outside, everything looked good, but underneath this façade the Wankers were insidiously fighting World War I, depleting England of its former great-power status.

Also, imperialism. Parliament. The Beatles. Mad Cow Disease. That should bring you up to date.

2002-08-20T20:17:00.000-07:00

ON THE ROAD. It was December of nineteen hundred and forty-six when Dean Moriarty and I, Sal Paradise, decided we had to get out of this crazy and noisy city. New York was dead to us, and we counted the days from here to San Francisco. Dean stole a beautiful machine, a real cruiser, and we got out town faster than the cops could touch the powdered-sugar surface of a donut to their lips. Given the donut in their hand was of the powdered sugar variety, of course.

On the way to San Fran we got a ticket in Dakota, burned through Texas, met some girls in Denver and somehow ended up washing dishes in a Bogota way-station. The whole way there I ate nothing but apple pie while Dean ate large sandwiches. He had a way with waitresses. He would wink and smile and give them extra money, and they would make him an extra-big sandwich. Finally we breathed the fresh air of the Pacific.

San Francisco. Dean and I knew that like the ancient Hebrews we had finally reached the Promised Land. Dean was ecstatic. Ecstatic until he realized that he had left his toothbrush back in New York. So we filled the tank for another cross-country trek.

Dean took a wrong turn, and we somehow ended up in Seattle. We took the I-90 East exit number 11 and headed towards Spokane. “No one understands our generation,” Dean said to me.

Dean Moriarty. What a bundle of pure emotion and American emotion-bundles. But there was no time to talk about Dean. “Merge ahead!” I screamed, as Dean was about to crash the cruiser into oncoming traffic. From there we took I-94 East exit number 58B towards Madison, kept left at the fork in the ramp, merged onto I-280 E, took the CR-508 East exit number 17A towards Jersey City, got in front of some guy who was in a hurry and drove really slow just to see his face, merged onto the turnpike, and got on Newark Ave. just like we always do.

“You know, I never really got it until now,” said Dean. “We’ve spent so much time worrying about trying to get somewhere that we never really realized how great it is to be on the road. Forget San Francisco. The road is America’s aorta,” said Dean, with the kind of emphasis that suggested he might jump into his own aorta and cause a self-induced heart-attack at any moment. Luckily, such an act wasn’t really possible.

“Dean, please stop talking crazy talk,” I said anyway.

That was when Dean got really excited. “But there’s so much more,” he countered. “Imagine a highway of billions of computers all talking to each other at the speed of light over synchronous optical networks. Imagine an extremely farfetched system of ansibles connecting space outposts throughout the galaxy. We could be there, surfing the vast information superhighways of the future. Or we could ride two cantankerous donkeys from Ur to Nineveh in Ancient Mesopotamia. Wait, that wouldn’t be so great. But the other stuff would be fantastic—on the road, two wayfarers musing about life incessantly like two wayfaring characters in a book that isn’t really that good but my mom gave to me as a present so I kind of read it.”

Dean and I have been “On the road” ever since.

2002-08-20T17:02:00.000-07:00

PRO PLAYERS HOLDING OUT for better contracts is not merely an American phenomenon.

2002-08-20T09:35:00.000-07:00

ORDER WITHOUT LAW...BUT WITH SURFING! Just saw Blue Crush, grrrl power paean to surfing. Not knowledgeable on surfing myself, but was interested in some of the portrayals of surfer subculture. Despite being a formally anarchic community with no legal rules, gangs of surfers form which create a semblence of order. As when the lead character decides she wants to surf a "double-overhead" pipeline and the leader of the local surf gang says: "You think your girl can surf it for real? You think you can surf it for real? . . . we'll get all the boys to block for you," meaning that they would make sure no one got in her line, endangering her surfing that pipe safely. "Surfer gangs" may seem like a bunch of deadbeats, potheads, and burnouts -- and they probably generally are -- but they also enforce norms that generally redound to the good of all in the surfing community.

This prelegal surfing community is governed by rules similar to those prevailing among Shasta County ranchers, as described in Robert Ellickson's Order Without Law. Litigation or formal rules are never resorted to, but reciprocity, shunning of those not conforming to the subculture's norms, and various types of signaling (for instance, using a special dialect of English) preserve a remarkable degree of order within the community, despite -- or perhaps because of -- the absence of legal rules. Of course, the dark side of insular norm-driven systems is seen in the way surfer community norms protect only internal interests, caring nothing for externalities they impose on those outside of the community. For instance, when the main character brings an NFL quarterback she meets out to a secret and hidden spot for surf lessons, the gang of local surfers shows up and invokes the "locals-only" norm: "Hey bro! This is a locals-only beach. You flew here, we grew here. [starts fight]" In doing so, they are protecting a secret spot for the good of the local surfers, but presumably not taking into account the utility of nonlocal surfers.

2002-08-19T21:12:00.000-07:00

WHO KNEW HAIRSTYLISTS' SCISSORS were so pricey? Probably a lot of people, but not me.

2002-08-19T20:37:00.000-07:00

THE NEW MEDIEVALISM. One of my "bits" I bring up when I'm in a pretentious mood (which, as you can tell, is quite often) involves stating that modern America is really feudal. We pretend like we're in some kind of democracy, but vast swaths of society's resources are controlled by corporations and other nondemocratic institutions. Though shareholders may be dispersed, ownership does not mean control; in reality, a small number of corporate princes have power over these resources. Corporations are structured as hierarchies, and many of us, like modern feudal tenants, spend a lot of our time working for mesne lords in these hierarchies, trading our labor for a crust of bread. The whole structure is bound together by duties of loyalty, a "punctilio of an honor the most sensitive." (Meinhard v. Salmon). Sounds feudal to me!

Turns out this spiel -- which I've repeatedly gone to during lulls in conversations over the last couple of years, may be preempted by actual scholarship. See Developments in the Law--The Law of Cyberspace, 112 Harv. L. Rev. 1680, 1688-89 (1999) (footnotes omitted) (defining the "New Medievalism" as "an approach to international relations that asserts 'a secular reincarnation of the system of overlapping or segmented authority that characterized' pre-Reformation Europe. As the world has become increasingly integrated, it is argued, authority patterns have dispersed into a variety of overlapping layers, much like the overlapping medieval authorities of emperor, pope, prince, and feudal lord."); id. at 1689 ("New Medievalists note that states have gradually ceded sovereignty over significant social and economic issues to supranational institutions including the European Union and the World Trade Organization. Likewise, technologies such as the Internet has have enabled individuals to create 'new commonalities of identity that cut across national borders and challenge governments at the level of individual loyalties.'").

Though the emphasis there seems to be a touch different from my canned rant, it is both amusing and a bit frightening that people are actually taking seriously something not tremendously different from it.

2002-08-19T19:07:00.000-07:00

ERRATA: Turns out my post on the swim fins was wrong. Someone close to the Atlanta swim league (who asked to remain anonymous): "The 'flipper' in question is in fact a standard diving fin adapted to attach to the end of his leg at the knee." So much for my dorsal-fin theory.

I could go on a rant about the strange yet widespread norm against resorting to the legal system even when you have a colorable claim (shades of Vosburg v. Putney, where the judge admonishes the parties that the case should never have come to court while finding for the plaintiff), but instead I'll just note the magic of the blogosphere; where news stories were unclear, I had the confusion resolved by someone actually close to the issue finding my post and sending me an email. Truly amazing.

2002-08-18T18:11:00.000-07:00

SHELTERED FROM THE SUMMER HEAT today by going to see the film Possession, which turned out to be a pretty good flick. The story of two academics (Gwyneth Paltrow and some guy) unearthing the previously unknown affair of two Victorian-England poets (played by two other non-Gwyneths) was delightfully self-conscious of its pretension. The juxtaposition of the 19th century stilted wit in the flashback scenes with the unrefined blather in the present made the dash of humor in this ostensible love story just right (though the love story was pretty weak). Anyway, one of the best of many good lines was this (rough paraphrase from memory):

RUDE LIBRARIAN AT BRITISH MUSEUM: Oh yes, now I remember...you're the American. How are you enjoying Britain?
AMERICAN ACADEMIC: It's wonderful. It's our favorite colony.

2002-08-18T11:43:00.000-07:00

LAW SCHOOL ADVICE: DON'T LISTEN TO IT. Lots of advice for law students floating around the blogosphere. There's Ipse Dixit, Dahlia Lithwick, and something would-be law students should probably take more seriously, advice from from an actual law student of the modern age. As (1) a law student myself and (2) a remorseless windbag and busybody, I can't resist putting my two cents. I'm a law student too, after all. (though keep in mind my experience reflects the local color of being a student at Harvard Law School; I imagine other places are not radically different because of the general acceptence of Langdell's model for law schools, as well as "cross-pollination" and all that, but no doubt each school offers its own, slightly different experience).

Advice on Advice. Really, it's all a load of manure (my advice included). I once heard Dershowitz say that when you ask people for advice, they just tell you what they did. If you follow advice, you just end up living other people's lives. I think this is largely very true -- you can ask a C student for advice and they'll tell you "what worked for them" during law school. But even if you ask the ten top students in the class, you'll probably get about ten different answers. Indeed, the best students are often independent and iconoclastic. Reject slavish conformity to other people's lives, whether they are successes or failures. You really should try to find your own best way; indeed, muddling through it all on your own is the point of law school, nay, life. (I'm not suggesting being some kind of "lone wolf" -- nor am I suggesting not lone-wolfing it -- but I am suggesting listening to lots of people, but making decisions for yourself).

That said, I can't resist giving you my advice. There's something fundamentally broken in humanity: we all think we have something worthwhile to say.

Embrace Confusion. If there is one part of the transition from other disciplines to law school that is tough, it is the need to cope with confusion. When you are confused in law school -- which will happen often -- the first and very understandable impulse is to try to reason your way into a clear answer, to shut the door on confusion. If you do this, you are generally moving backwards. Law itself is very confusing and there are a lot of tensions. For all their posturing and presentation of the illusion of clear answers, law professors are going to split the doctrine right down the middle of major tensions on their exams. During the year, when you realize you are confused, don't despair -- celebrate! Usually you have just identified one of those legal fault lines. Instead of convincing yourself of ways to make things straightforward, explore your confusion, dissect it, understand it, learn where it comes from. Finding ways of systematizing and exploiting legitimate confusion is the key to law school; it's why people are constantly shaking their heads over getting an A when they thought they flunked and getting a C when they thought they aced an exam. When every answer you give is clear and one-directional with no detours, you've missed the nuance; you've failed to embrace law school confusion.

Talking: Shut Yo' Trap. Before I started law school, a very wise law student told me not to talk much in class. This was good advice for me. As you can tell from my blogging, no matter how bad my ideas may be, I'll still vomit them up and share them with whoever will listen. But, I consciously restrained myself, and it turned out not raising my hand and trying to jump into the fray was pretty easy after the first few weeks. I talked when cold-called, and tried to impress, and raised my hand when I has something really good to say, but generally I bided my time.

But wait, why shouldn't you talk? For one, all the other law students will make fun of you if you're a "gunner". But a better reason is the power of law school karma -- for some reason all the people who are huge gunners early all end up doing badly. (You won't hear them talking much second semester). While many simply chalk up this "karma effect" to divine providence and leave it at that, I think there's a logical reason big talkers so often end up getting burned. The big talkers don't realize that they are part of the law professor's show; when the professor encourages them, and keeps going back to them, it is most often because they are getting one side of the issue out. The big talkers get so caught up in stating and defending their position that they miss the whole, the chorus of competing views and philosophies. As a noninvested listener -- and you should listen to the windbags, they have a lot to say -- you start to see patterns, and you start to systematize the kinds of conflicting arguments people bring to bear on legal problems. Generally speaking, when a professor asks student A for an answer, and then asks student B why student A is wrong, neither student's answer is the point, nor is the point which view is stronger. The point is the interaction of those answers: they're a lesson on the nature of legal conflict. You miss this when you're in the fray; you get it when you watch it patiently, day after day, from the sidelines.

Scheming Machiavellis will note that if you don't talk, you won't build up rapport with any professors, whose all-important recommendations are a valuable commodity come 2L year and clerkship season. Ipse Dixit offers his solution: "Pick one class you find especially interesting...and excel in it. Know each day's material in this class backward and forward, even if it means spending time on it that "ought" to be spent just keeping up with another. Your goal is for the professor in this class to consider you the number one student in the class. You'll be wanting recommendations in a couple of years, so start earning them the first month." I think the instrumentalist sentiment here is fine, but the way Ipse Dixit proposes going about it is risky and may not maximize returns. Trying to "excel" in one class almost guarantees you'll do worse in that class on the exam than your other classes, because you'll apply your collegiate standards for "excelling" -- knowing every answer in some rote form. When you try to "excel" you'll become a gunner, you'll try to make things too clear, and thus miss the all-important and totally legitimate confusion. Plus, it's a gamble. Law school grades admittedly are somewhat unpredictable -- it's just one, blind-graded test at the end of the semester -- and you're better off seeing which class you get your best grade in and then doing some research for that professor later, and developing a more personal relationship then.

Briefing, Outlines, Study Groups. The debate over these practices is bunk. People spend a lot of time agonizing over how to study, but I think it's largely a matter of personal style. I will say that it seems very important to work past exams in groups, say small groups of 2 or 3; especially when you don't have an answer key, this can be very valuable. But it's only valuable if you take disagreement the right way -- you shouldn't treat exam discussion as too much of a debate with one right answer; instead, view differing answers as opening your mind to the other side of the argument, a side you missed. Even if you don't agree with each other's answers, all of your actual exams would be stronger if they acknowledged those other interpretations and approaches and then struggled with ways to resolve the conflict. Indeed, when you work the actual exam, if things seem clear, you're probably doing something wrong. It seems counter-intuitive, but find ways to make yourself confused about what the right answer is, explore them, and propose -- with some humility -- a way to resolve the confusion. Acknowledging counterarguments is a time-honored rhetorical technique for boosting your crediblity, and law professors eat this kind of stuff up.

Semicolons. Get used to them; for some reason, since entering law school I can't write without using them constantly. I think the law school mentality of compiling arguments lends itself to lots of semicolons; on the other hand, it could just be their pretension value.

Reading. Seriously consider reading The Bramble Bush during your first year. You won't be sorry.

2002-08-17T09:18:00.000-07:00

RUBEN BOLLING is a comic genius.

2002-08-16T13:24:00.000-07:00

FLIPPER or FIN? Professor Volokh has a post about the disabled swimmer with a prosthetic leg who started wearing a flipper. Well, it's a flipper according to a L.A. Times story, but a fin according to the Atlanta-Journal Constitution story and subsequent Atlanta letters to the editor. I tend to suspect the Atlanta paper of being right about an event in Atlanta area swimming.

Now, "fin" and "flipper" could mean the same thing, but I envision a fin as dorsal, while when I hear flipper I immediately think of the big flappy feet scuba divers wear, analogous to a dolphin's fluke. Hunter Scott, the disabled swimmer, claims the fin is not a propulsion device and merely stabilizes his lopsided body and prevents it from rolling; opponents of the fin say it gives him an unfair advantage. Scott's claim makes little sense unless the fin is dorsal. Additionally, as a halfway-decent high school swimmer (if I do say so myself), I can certainly attest that a true scuba diver's flipper could make anyone faster than an Olympian, but a mere dorsal fin on one leg (I'm imagining something like a shark's fin attached to the prosthesis, sticking up) would not offer much in the way of propulsion; indeed, unlike a scuba flipper, it would be useless to a "normal" bipedal swimmer. If, as seems likely, Scott was using such a fin, I think it is a pretty sensible accommodation. An improvement of 4 seconds in 100-yard races is too small of an improvement to have been caused by a scuba flipper, but is a quite normal improvement coming from growth and training between ages 13 and 14.

I agree that it is a shame that the decision as to the fin's permissibility is being made through simple outbidding in litigation -- though I suspect you'll rarely find Professor Volokh quite so troubled by wealth inequalities in other contexts. But despite this agreement, I think that the L.A. Times article may have slightly skewed the story by using "flipper" instead of "fin," evoking an idea of a radical advantage rather than a quite sensible device designed specifically to compensate someone missing part of one leg rather than just "even out speeds." Now, as I've said above, I'm only theorizing that this is a vertical fin, but it seems plausible from reading the L.A. Times and Atlanta Journal-Constitution that the L.A. Times word usage has skewed the debate. To me at least, if it turns out that we are talking about a stabilizing fin rather than a scuba flipper, the league's opposition seems far more unreasonable and the Scott family's litigiousness suddenly makes much more sense.

While some may make blanket statements that any accommodation in athletic competition is always inappropriate, I think the details of the particular accommodation are important and relevant to the discussion. A scuba flipper would simply be unfair, but a stabilizing fin for someone whose body "rolls in the water" because of legs of differing buoyancy seems not so far from contact lenses worn under the goggles of a championship swimmer, who wouldn't be able to swim straight without them.

2002-08-15T11:49:00.000-07:00

CHEATERS, JUDGES, & LAW STUDENTS. Great post over at Who Stole the Tarts fitting the current federal judicial clerkship "hiring freeze" into the prisoner's dilemma model. (see also How Appealing for a description of one federal judge's recent "defection", though he hasn't actually hired any early-bird clerks, as best I can tell from the post).

As a rising 3L fortunate enough to have secured a circuit court clerkship for 2003-2004 during the "good 'ol days" of last year, I can sit back and take merely intellectual interest in this whole brouhaha. But I do think that while Who Stole the Tarts offers a perceptive application of the prisoner's dilemma model, she doesn't factor in the other side of the equation: student behavior. What can we say about students cheating? The "cheating" judges ploy only works if the "best" students are willing to act as accomplices. But now that students have officially been told they not only can, but should wait, the impulse to "cheat" and get the jump on the clerkship race butts up against a strengthened impulse to procrastinate (perhaps the most powerful force in the student universe).

Additionally, presuming that most judges follow the rules and only a handful cheat, students who go for the "cheater" judges may have only a very small chance of acceptance -- if only a small number of judges defect -- and thus have a very good chance of being forced to repeat the application process at the official deadline, which most of the "sucker" judges may very well abide by (thanks to norms, signalling, inter-chamber communications, etc.). The result of rational student choice may very well be few students going for the early-bird clerkships, because of the low probability of return if everyone goes for it and the specter of duplicative reapplication.

The upshot: Who really knows what will happen?

UPDATE: Check out Alice's response to this post over at Who Stole the Tarts. Also, note the scare quotes I'm using with "cheater". While some have complained I'm being unfair, I only mean to encapsulate the game-theoretic concept of a defecting player in a collective action problem with this term. I asssign no ethical value one way or the other to such behavior.

2002-08-13T11:34:00.000-07:00

TOWER POWER or SOUR TOWER?. Wizards have always had a penchant for towers. One quickly thinks of Saruman's tower of Orthanc, or Merlin's tower (until it was dynamited by the Connecticut Yankee). Perhaps less well known, but no less a wizard, Raistlin was a tower-dweller, as was his Forgotten Realms counterpart, Elminster. The wizardly Aes Sedai of Robert Jordan's Wheel of Time world occupy the White Tower, and while Rand al'Thor was peripatetic in his youth, in the later Jordan books he and his Asha'man cohort seem to be moving towards setting up permanent residence in the "Black Tower".

Why this love of towers? On first glance, one can see the appeal of towers for wizards: they offer a comfortable place of your own to run your experiments with unnatural abominations in peace, a haven to which to escape from the workaday world, a safe repository to pile up your collection of arcane spellbooks and tomes away from prying eyes, and a great view. Additionally, in an architectural landscape dominated by primitive hovels, wood houses, and occasional hobbit-holes, building a skyscraperish tower has tremendous conspicuous consumption value. (A nice tower is kind of like a "Wizard's Porsche").

On the other hand, rural towers are quite often disconnected from the real world, from bustling centers of trade and commerce. The logistics of just keeping the fridge decently stocked at Orthanc must have given Saruman a tremendous headache. Moreover, bustling centers of trade and commerce (whose zoning laws appear to disallow towers) inevitably attract thinkers and artists. Interaction with this milieu would no doubt be a valuable resource for your average wizard, generally depicted as being extremely intellectually alive and interested in new ideas as well as ancient lore. Furthermore, it is surprising that even the evil wizards -- who reportedly have an unquenchable thirst for power -- choose to reside in isolated towers, rather than in the capital, where they might actually have some hope of influencing political leadership. Indeed, towers seem to be ideal for retirement. While most wizards are quite old, usually they're bent not on retirement, but on world domination/salvation.

There is an important exception which bears mention. Gandalf didn't seem to have a home, much less a tower -- he just wandered. While this flies in the face of the standard dogma for conventional wizardly behavior, it in fact seemed to give him some advantage, as comparison with the tower-based Saruman reveals. Rather than becoming too attached to any one region, Gandalf's lack of a domicile gave him great flexibility (and maybe even tax advantages). While Orthanc bred both overconfidence and isolation-induced ignorance in Saruman, Gandalf's peripatetic ventures continually exposed him to useful information -- it was just this difference that led to Gandalf's knowledge of the usefulness of hobbits, where Saruman discounted them. Wizards are very smart, but they often fail to realize the importance of developing numerous and varied social connections; despite the extent of your magical powers, who you know is often just as important as who you can transform into a newt. You're never going to meet anyone if you just sit in your tower cooking up new spells all the time. Of all the wizards, only Gandalf really had a handle on this concept (though Merlin, in hitching his wagon to Arthur's star, seemed to have a sense of it as well).

Perhaps wizards in their towers share much with academics isolated in their iv'ry towers -- and maybe these towers are doing harm. Certainly Judge Richard Posner thinks that the ivory tower of academic specialization is damaging to the quality of public intellectuals.

But that is beside the point. The real upshot is this: If you're reading this and you're a wizard, you may want to reconsider how you invest in real estate. Despite the social status a nice tower provides in wizardly circles, towers may do more harm than good. I'm not saying you have to be as drastic as Gandalf -- he really took this idea to extremes -- but you may be better served by maintaining several modest residences in a number of different locales.

(And while you're at it, check out The Encyclopedia of Arda. These people blow me away. A real labor of love.)

2002-08-12T21:00:00.000-07:00

BLAWGS. While my below post suggests that lawyerblogging is more something law types invent than some truly unusual phenomena demanding explanation, I thought I would note that others have already come up with a particularly apt name for its manifestations: blawgs (via Bag & Baggage).

2002-08-11T21:05:00.000-07:00

MEDIEVALBLOGGING. Digital Medievalist, responding to Sasha Volokh's response to my post on the apparent lawyerly propensity for blogging, argues that in fact the medievalist's high comfort level with glosses and other intertextual references makes them pre-adapted to life on the internet. It's an interesting post, and very similar to my initial statement about lawyer's pre-prepartion for blogging.

I do now wonder, however, if everyone sees their field everywhere they look. Lawyers view the web and note the abundance of lawyer blogs. Medievalists note the abundance of medievalist blogs. And then we start coming up with profession-centric explanations, when perhaps the real explanation is the general abundance of everything on the web, which becomes increasingly Gibsonesque in its vastness with each passing day. As we select and process the fragments of this whole we are most interested in, perhaps we start to feel that the corner of the web we have chosen to focus on is a larger part of what exists than it really is, and thus that there is some anomaly that must be explained. This kind of behavioral bias is certainly normal and expected -- I myself succumbed to it as much as anyone in my previous lawyerblogging post.

Just a theory.

2002-08-09T19:30:00.000-07:00

A WORD IN FAVOR OF TERM UNLIMITS. In an interesting piece in today's Washington Post, law professors Akhil Amar and Steven (not Guido) Calebresi argue that the Supreme Court Justices should have term limits. While separation of powers principles embodied in Article III would probably prevent actual, set-in-stone term limits, Amar and Calabresi suggest a number of ways short of a Constitutional Amendment -- both informal and technical -- by which term limits could, in effect, be imposed on Justices. For instance, judges could be appointed to federal circuit courts for life, and be put on the Supreme Court merely "by designation." Or, upon confirmation, future would-be Justices could be made to promise they would retire after X years. Although such promises would carry little legal weight, Amar and Calebresi feel that "justices would feel honor-bound to keep their word.

What exactly is so wrong with having Justices on the Court for such a long time? As Amar and Calabresi point out, the current Court has had the same mix of personnel for longer than any previous Court (eight years and counting). According to them, the current Justices are all at least giving the appearance of waiting for the ideal moment to retire, when someone most like them in ideology can be appointed. This theory suggests that the liberal Justices want to wait until a liberal presidency to retire, while the conservative Justices are waiting for the possibility of a more conservative Senate less likely to knock out their "ideal" appointees. Amar and Calabresi suggest that when Justices are hanging on to their seats as they wait for the political constellations to come into perfect alignment, the notion of an independent, apolitical judiciary is undermined. Thus, Amar and Calabresi argue we should have term limits for the Justices.

I'm not sure Amar and Calabresi's characterization of the Justices' motives is either fair or complete, but even if the Justices are making retirement decisions based on the current alignment or misalignment of political constellations, so what? There is, I think, a basic tension underlying Amar and Calabresi's argument. Their premise is that politics influencing what Justices do undermines the judicial system. In general, I agree -- this is consistent with separation of powers, as well as the Framers' idea that a wholly unchecked democracy-of-the-moment is less than ideal.

But the cure Amar and Calabresi suggest is to increase the disease. Their suggestion is to remedy political influence on the Court by giving the political branches even more frequent control over the Court's composition. When Justices stay on the Court because they don't like the ideological balance likely to result from their retiring at the moment, they are being influenced by political considerations in a sense, but they are also preserving the Court's ability to stand in the way of democratic excesses. The Justices cannot stand in its way forever -- while it may not always seem that way, they are mortals, doomed to die -- and I think this is a sufficient escape valve.

When Justices hang on to their seats because they don't like the current political environment, they are in fact exercising their independence from the political branches, and maintaining the judiciary's proper function as a check on the political branches. Amar and Calabresi have arrayed a number of impressive arguments and clever solutions, but they seem to have missed this basic point. Nowhere is this better seen than in their own words: "Congress should try to nudge the justices toward a better model of judicial independence based on fixed judicial terms." But what kind of "judicial independence" can come from a Congressional nudge?

2002-08-09T16:25:00.000-07:00

THE LIST OF PEOPLE IN ON THE CRUEL JOKE my parents played on me by naming me after Saturday Night Live legend Garrett Morris now includes Meryl Yourish.

Or, check out this Garrett Morris. (Fortunately not my namesake)

2002-08-08T17:43:00.000-07:00

AU CONTRAIRE! I am both alarmed and amused by the fact that a reputable thinktank like CSIS is drawing on Buffy the Vampire Slayer for insights critical to our national security. See below.

In any event, after reading some of the characteristics of the so-called "Buffy Paradigm" (p. 4), I have to wonder, just what show were these guys watching? Charmed? While I think we can all agree that the CSIS report is certainly no Long Telegram, they could have at least done their research thoroughly. Specifically, I take issue with the following descriptions of the "Buffy Paradigm":

-- What expertise there is consists largely of bad or uncertain advice and old, flawed, and confusing technical data
-- Arcane knowledge is always inadequate and fails to predict, detect, and properly characterize the threat.

(emphasis added) Yo! Show some respect for Buffy's intelligence source, high-powered high-school librarian Giles. You go to this guy with a vague description of the episode's villain, he comes back five minutes later with the precise species of cacodaemon and what its weak points are. Whatever may be the contours of "Buffy Syndrome," a lack of good data is not one of them.

Indeed, I did a little digging, and it turns out that Giles has quite a following among librarians. Consider the following excerpts from GraceAnne A. DeCandido's essay praising "Giles: Hero Librarian":

[T]he appearance of school librarian Rupert Giles on television's Buffy the Vampire Slayer has done more for the image of the profession than anything in the past fifty years, with the possible exception of Katherine Hepburn in Desk Set. Giles, this wily and attractive professional, is our hero librarian: a pop culture idol whose love of books and devotion to research hold the key to saving the universe - every week....

Buffy's buddies...meet and conduct much of their research in the school library. Giles, whose collection development policy must be an extraordinary document, has access in the stacks to a vast number of volumes on vampire and demon lore, the occult, witchcraft, spellcasting, and other rarities....

It is a heady experience for any profession to find itself an integral part of a wildly popular TV series. How much more so for librarians, who have been bedeviled with a poor public image since at least the nineteenth century....

We have a librarian model who is elegant, deeply educated, well if fussily dressed, handsome, and charged with eroticism. In a world of teens where parents rarely make an appearance, he is a stable, friendly, and supportive adult. He stands by Buffy even when the powers that be require him to step down. He lives the faith that answers can be found, and most often found in the pages of a book....

The librarians say it better than me: the true "Buffy Paradigm" is not typified by a lack of information, but a wealth of it. One can only conclude that CSIS's blatant mischaracterization reflects their quite understandable jealousy of Buffy's far superior thinktank.

2002-08-08T17:00:00.000-07:00

BLOGGERS TAKE NOTE. In Sci-Fi writer Dan Simmons' oustanding book Hyperion, there's a passage strangely apt for bloggers. (and note the reference to the historical Icelandic "All Thing", a very democratic legislative body, which you can read more about in this fantastic book)

For the first time in my life I became political. Days and nights would pass with me monitoring the Senate on farcaster cable or being tapped into the All Thing....My voice and name became well known on the debate channels. No bill was too small, no issue too simple or too complex for my input. The simple act of having voted every few minutes gave me the feeling of having accomplished something. I finally gave up the political obsession only after I realized that accesssing the All Thing regularly meant[] staying home...[I]f I stayed home I would turn into an All Thing sponge like so many millions of other slugs around the Web.

Science-fiction prophesy or present fact?

2002-08-08T13:34:00.000-07:00

BUFFY THE BIOLOGICAL WARFARE SLAYER. Just came across this interesting report (via Meryl Yourish), which analogizes America's bioterrorism threat to the kind of diffuse, unpredictable threats Buffy must face weekly in Sunnydale.

The defense-industrial complex can be pretty dorky sometimes.

2002-08-08T08:52:00.000-07:00

SHOW YOUR BLOGGER PRIDE. Boldly proclaim to the world that you are a "real winner" today by proudly wearing this fantastic cotton tee. For just $10.95, you can display your web-surfing induced gut in blogspot navy blue. Buy today: it's what the "cool" kids are wearing. If you wear this shirt, Blogger promises you won't get picked last for softball. Offer good only while supplies last -- don't delay!

Truly, we live in The Age of T-Shirts.

2002-08-08T08:45:00.000-07:00

HIGH SCHOOL EUROPEAN HISTORY CLASSES everywhere are going to be electrified by this news. (via Common Sense & Wonder)

2002-08-07T16:29:00.000-07:00

IT'S FUNNY TO EV.: On his blog, Evhead -- and note that his archive links work -- blogger creator and President/CEO of Pyra Labs Evan Williams quotes SF-legend Bruce Sterling, in the process giving us a taste of what makes Ev. chuckle:

It just amazes me how often people who know absolutely nothing about code want to tell software people their business. 'Why don't they just,' that's the standard phraseology. 'Why don't they just' code up something-or-other. Whenever I hear that, frankly, I just want to slap the living shit out of those people."

Hmmm...do you mean like when people ask "Why can't Pyra code up some archive links that actually work?"

(ducks Bruce Sterling)

2002-08-07T16:17:00.000-07:00

ONLY BRENDAN O'NEILL would put his blogspot banner at the very bottom of his very long page. (scroll down) And all along I thought he shelled out the 12 bucks for ad-free blogspot...

Actually, it's a pretty good idea, though if too many people did it, the imperial Ev. would have to issue an edict prohibiting such "behaviour".

2002-08-07T14:43:00.000-07:00

CHESS, JOURNALISM, FOOTBALL. Since Garry Kasparov is now writing editorials (and I'm expecting an even better one from Deep Blue any day now), I'll link to my totally irrelevant but hopefully entertaining chess-vs.-football piece.

2002-08-07T14:22:00.000-07:00

NEVER TRUST A STATISTICIAN, but do check out this method for statistically disproving time travel.

2002-08-06T14:27:00.000-07:00

DOUGLAS TURNBULL in defense of the Constitution's undemocratic aspects, and against Mobocracy. Indeed, some of the Constitution's greatest strengths lay in its undemocratic or countermajoritarian tendencies. Which reminds me of one of my new favorite words I came across this summer: timocracy (rule by the propertied). From Rome to early nineteenth-century England, the franchise has often been limited to those with a certain amount of property. We're still a bit timocratic today, though in a much more informal sense.

2002-08-05T16:50:00.000-07:00

JOURNALISM IN THE DIGITAL AGE. CNN.com's got yet another hacking-related story up. The gist of the story is mildly interesting, in fact -- it's about a push to make "self-defense" hacking (hacking the hackers) legal -- but that's not what concerns me here. What concerns me is CNN's choice of accompanying graphics. Instead of using pictures of the people they interview, the journalistic wizards at CNN.com somehow thinks nonsensical clipart is what keeps readers coming back. Take this beaut:

OK: we've got a key, a lock on a computer screen, and some kind of hallucinogenic magnification of a chip etching. If you recently stepped in a wormhole that transported you from the French Enlightenment to the present, this graphic may help you conceptualize this whole "hacking" thing. For the rest of us, while the content value of such a graphic may be limited, it does at least remind of the early 1990s, an unfortunate historical period known as the Bad Clipart Years. Graphics like this help to remind us why we should never again, as a nation, buy CDs filled with generic clipart.

Or take this one:

There it is guys: the "key" to hacking, the completely undangerous ps command, superimposed on some shadowy fingers. And as you can see from the segmentation fault, CNN photographers visited the front lines to bring you a scratchy screen image of some first-year CS major discovering a bug in her lexer at 2 am.

And finally there's this:

I can't begin to explain this one. It looks like some poor kid cut themselves on a spirograph and then got sick all over it.

I can imagine that CNN.com believes it needs an image on every page, or it will lose readers' attention. On the other hand, do we really need all three of these inane images in a relatively short article? To make matters worse, CNN.com reuses these three graphics and about two others in every cyber-story they do. As a consumer of investigative reporting, I prefer descriptive images, like the following one from an (only slightly) imaginative story on Google from Ftrain.

Now that's a picture that tells a story.

2002-08-05T12:08:00.000-07:00

THE WHEEL CREAKS ALONG. Robert Jordan is now releasing prologues to his books as separate e-books. Book Ten in the Wheel of Time series, Crossroads of Twilight, won't hit stores till November, but you can read the prologue to the book now. If it's like most of Jordan's other novella-length prologues, it may take you until November to finish it.

2002-08-05T11:24:00.000-07:00

WATCH OUT for Googlebots. (via §23).

2002-08-02T13:34:00.000-07:00

AS EYES TURN TO THE FED, it's comforting to know Greenspan is there, as he has been through the ages.

2002-08-02T08:20:00.000-07:00

SEANBABY, BABY. If you're one of the ten remaining people who still hasn't read Seanbaby yet, go check out the site immeditately. It's all brilliant, but his tour-de-force is the extended commentary on Superfriends. Additionally, the list of the 20 Worst Nintendo Games of All Time and his analysis of fan mail sent to Nintendo Power would be standalone, lifetime achievements for mere mortals. The amount of work put into these commentaries is mind-blowing; it truly is a labor of love.(Warning: some foul language on the site, but it's a small price to pay for the hilarity)

Who is this Seanbaby? Who is this Michelangelo of slacker commentary on TV shows and video games? I'm not sure -- his self-references are evasive. One can only conclude that he's some kind of rural genius whose prodigous talent has been directed only at a pastiche of pop culture, to the enjoyment of lazy office workers everywhere.

2002-08-01T13:01:00.000-07:00

SINCE INTELLIGENT COMMENTARY HAS TURNED TO SUPERHEROES, both Meryl Yourish and Instapundit, I'll relink my posts praising the Green Goblin and criticisms of Batman and Superman (here, here, and especially here).

2002-08-01T07:21:00.000-07:00

ASSETS & LIEABILITIES. TV shows about young professionals abound, especially doctors and lawyers. But what about accountants? For years, studio execs have doubted the viability of a show based on the trials and tribulations of young accountants.

But now, post-Enron, all that has changed. Now the public consciousness of accountants has shifted. They can be criminals, and thus, they are dangerous. All a drummer for a Heavy Metal band can do is bash some heads, but an accountant cooking the books can bring world markets to their knees. Developments of late have had their negative side, but they have also accomplished something wonderful for the once-drab profession: Accountants are now sexy.

In today's environment of dangerous-but-sexy accountants, the prospects for an accounting TV series look good. Just imagine: the story of a Good Accountant, the moralizing and ostensible protagonist (well-built; glasses) versus a book-cooking Evil Accountant whose criminality is matched only by his sex appeal. The main love interest is the brainy-but-leggy SEC Auditor, torn between the Good Accountant and Evil Accountant, whose love for the irressistable Evil Accountant leads her to initially become an unwitting accomplice, looking the other way as he blatantly violates FASB-121(b). Meanwhile, the Evil Accountant is two-timing her with the female CEO of the firm he is cooking the books for, Femron.

Of course there are sideplots: the spunky office manager, the gruff veteran accountant with a heart of gold, and the nerdy historian of accounting who occasionally intervenes to tell stories about the Teapot Dome Scandal. There would be accounting humor ("I do not depreciate that remark.") and accounting tragedy (my pencil broke). The title, of course, would be Balance Sheets.

ER, move over.