6:20 PM :: Stephen (contact)

Quote of the Day: From the otherwise entirely unfunny case of Pope v. State, 396 A.2d 1054, 1079 (Md. 1979):

Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.

(I wonder, though -- were they quoting the Latin record of the case, or the Year Book entry in law French?)

 

4:39 PM :: Stephen (contact)

West Headnote of the Day: 165k30. Extortion and Threats--Threats--Indictment or Information--Requisites and Sufficiency:

Indictment sufficiently charged offense of transmitting threatening communications in interstate commerce when it alleged that defendant knowingly and willfully transmitted in interstate commerce between New Hampshire and Florida communication containing threat to injure collection agency employees by indicating agency's building would "go boom" . . . .

U.S. v. Whiffen, 121 F.3d 18 (1st Cir. 1997).

 

8:33 PM :: Stephen (contact)

Too Good to be True: From the Associated Press:

Police in Ariz. Seek Monkey for SWAT Team

Mon Apr 18, 10:12 PM ET

MESA, Ariz. - The Mesa Police Department is looking to add some primal instinct to its SWAT team. And to do that, it's looking to a monkey.

"Everybody laughs about it until they really start thinking about it," said Mesa Officer Sean Truelove, who builds and operates tactical robots for the suburban Phoenix SWAT team. "It would change the way we do business."

...

The monkey, which costs $15,000, is what Truelove envisions as the ultimate SWAT reconnaissance tool.

Since 1979, capuchin monkeys have been trained to be companions for people who are quadriplegics by performing daily tasks, such as serving food, opening and closing doors, turning lights on and off, retrieving objects and brushing hair.

Truelove hopes the same training could prepare a monkey for special-ops intelligence.

Weighing only 3 to 8 pounds with tiny humanlike hands and puzzle-solving skills, Truelove said it could unlock doors, search buildings and find suicide victims on command. Dressed in a Kevlar vest, video camera and two-way radio, the small monkey would be able to get into places no officer or robot could go.

Ah, but what about a robot monkey...

 

1:28 PM :: Stephen (contact)

Gaming the System: Orin Kerr is scandalized by a report that top law schools are "gaming" the U.S. News ranking system, rejecting highly-qualified applicants in the hopes of improving their yield numbers. Yield is measured by the proportion of admitted students who matriculate. So when a law school admits a student who's over-qualified, and thus likely to turn it down for something better, the yield numbers (and the all-important U.S. News rankings) will suffer.

There doesn't seem to be much evidence of this yet on the law school front, but it's a well-documented phenomenon in undergraduate admissions. According to a fascinating NBER working paper my brother forwarded me, released by four scholars last October (including Caroline Hoxby, whose work I've always found worth reading), schools routinely engage in such manipulation to improve their rankings:

Another method by which a college can manipulate its matriculation rate is deliberately not admitting students who are likely to be admitted by close competitors or colleges that are often more highly preferred. A college administrator may say to himself, "My college will ultimately fail to attract good applicants unless I raise its matriculation rate. I can achieve this with a strategic policy that denies admission to students who seem likely to be accepted by colleges more desirable than mine. By systemically denying them admission, my college will of course lose of its some most desirable students (because some percentage of the highly desirable students would have matriculated). However, it is worthwhile to sacrifice the actual desirability of my college class in order to appear more desirable on a flawed indicator." . . .
. . .
In other words, the college will avoid admitting students in the range in which it is likely to lose in a matriculation tournament.

The authors back up their assertions with data on admissions rates for top students at Harvard, MIT, and Princeton, as indexed by combined SAT I percentile scores:



At Harvard and MIT, one's chances of admission generally increase with SAT score (although the Harvard probabilities are flat between the 93rd and 98th percentile). At Princeton, on the other hand, a candidate in the 98th percentile has a substantially worse chance of acceptance as compared to a candidate in the 93rd percentile. This is unlikely to be the result of legitimate admissions preferences -- as if the 98'ers were all timid bookworms, while the 93'ers were happy well-rounded types. This is especially clear since the chances of the students at the very top are the most favored of all. As the authors explain, "if the student's merit is high enough, a strategic college will probably admit the student even if the competition will be stiff. This is because the prospective gains from enrolling a 'star' will more than make up for the prospective losses from a higher admissions rate and lower matriculation rate. (Recall that the crude admissions rate and matriculation rate do not record who is admitted or matriculates.)"

In other words, it's quite clear that Princeton, and presumably many other schools, are departing from their standard admissions criteria in order to reject well-qualified candidates and to increase the yield. (Rejecting good students also improves--i.e., lowers--a school's overall admissions rate, by making the school appear harder to get into.)

How can this 'gaming the system' be prevented? So long as U.S. News pays attention to yield, and so long as schools pay attention to U.S. News, it's hard to imagine a solution. But the paper's authors propose an intriguing "revealed preference" method to measure student demand:

Our statistical model extends models used for ranking players in tournaments, such as chess or tennis. When a student decides to matriculate at one college, among those that have admitted him, he effectively decides which college "won" in head-to-head competition. The model efficiently combines the information contained in thousands of these wins and losses.

In other words, if we want an index of how eager students are to attend a given school -- the information yield is supposed to provide -- we should look to students' actual choices. Each school could be ranked by their success in head-to-head matchups against the rest. Manipulating these numbers is substantially harder than manipulating yield, since rather than rejecting students who are overqualified, schools would be forced to convince those overqualified students to attend.

Of course, the new measure isn't perfect, and would require certain separate sub-rankings when student preferences aren't nationally shared. (Students in California may prefer an in-state school to a slightly better university on the East Coast; "niche" schools with an engineering focus, or a religious affiliation, may attract students with stronger preferences.) But even if its answers aren't foolproof, the authors' model would at least be asking the right question: not which school can reject the most students, but which school those students prefer. And their new measurement would be a vast improvement over the less accurate rankings -- and costly admissions manipulation -- the system produces today.

 

11:30 AM :: Stephen (contact)

Fame and Fortune: SteveSachs -- your third Google hit for the search plain error...

I'm honored, really.

 

5:36 PM :: Stephen (contact)

The Commonwealth of Bees: A librarian in the YLS Rare Books Room recommended to me Early English Books Online, a really impressive service that provides full text-searchable reproductions of English books. I tried a search for "law merchant," and in addition to some of the standard sources, I found this book:

5. Hartlib, Samuel, d. 1662.
The reformed Common-wealth of bees. Presented in severall letters and observations to Sammuel Hartlib Esq. With The reformed Virginian silk-worm. Containing many excellent and choice secrets, experiments, and discoveries for attaining of national and private profits and riches., London, : Printed for Giles Calvert at the Black-Spread-Eagle at the West-end of Pauls, 1655.

Among other invaluable advice, the treatise offers the following:

Necessarie observations concerning the Premisses.

From the middle of Aprill, until the middest of May , look diligently to thy Bees; for then are they near beginning to hatch, and do stand in need of most help, especially if the Spring be cold, and the wind holding any part of the North or East; whereby the tender buds or blossomes do perish, and the Bees are driven to the blossomes of Apple-trees, which is their utter overthrow and decay.

 

5:01 PM :: Stephen (contact)

The Royal Fifhes: When I lived in England, I was informed that all swans in Britain were the property of the Queen. No one could own a swan, or eat one without her permission. (Except, of course, for one flock that had been granted by the Crown to Christ Church College, Oxford.) In older times, the same was true of sturgeons, dolphins, and other great sea-creatures, which were reserved for the king's table. Any sturgeons caught accidentally had to be sent to the king--or, if they would not keep, their value could be sent to the royal treasury.

More recently, in the course of research, I was amused to find the following excerpt from William Welwod's 1613 first edition of An Abridgement of all the Sea-Lawes:

Item, fhares, lawfull prizes or goods of the enemy. ficlike Lagon, that which was found lyand at the fea ground, and Flotfon that is found fwimming upon fea, and Ietfon, which is caft foorth of the fea to the fhoare and coaft, with anchorage, beaconages, meare fwine, Sturgeons & Whales, &c. and all fifh of extraordinarie greatnes, called regal fifhes, which all are allowed in great Britaine, France, and other noble kingdomes, to the Admiralls, by their Soueraigne; for the better maintenance of their eftate, iurifdiction, and conferuacie on feas, riuers, floods, roads, ports, harbours, channels, fayling, fifhing, and all trading there, as altogether and chiefly committed to the care, maintenance, and protection of the Great Admirall.

Yarr.

 

10:04 AM :: Stephen (contact)

The Kremlin on the Charles: As President Summers continues to stifle dissent, the following printed in this morning's Crimson:

We Are Not Spineless
By Stephen E. Sachs

Harvard professors don't scare easily. Though protected by life tenure and the prestige of an elite university, they are occasionally called to act at great risk to their sense of comfort. And rarely have they shown more courage, more disregard for personal convenience in the face of mortal danger, than in proposing a no-confidence motion in University President Lawrence H. Summers, to be voted on in an emergency meeting next week.

Through his controversial comments, including his recent statements on women in science, Summers has created a climate of fear and repression well befitting the "Kremlin on the Charles." Several nameless professors spoke at Tuesday's Faculty meeting of a "toxic atmosphere" in Cambridge. Professor of Sociology and Department Chair Mary C. Waters described tenured academics "held hostage to fear," insisting that their dissenting e-mails be destroyed before being read by a University president powerless to fire them. Cruel punishments, no doubt, await Rabb Professor of Anthropology and Department Chair Arthur Kleinman, who swore openly to "show the public that we are not cowards, we are not spineless, and we are not with you." Thomas Professor of Government and Sociology Theda Skocpol spoke darkly of "fear and manipulation," and warned that faculty members have kept silent "in fear that they will be criticized publicly or lose their jobs." (Heavens! The last time a Harvard professor suffered public criticism was in 1952, during the McCarthy era, and we all know how that turned out.)

A cynic might suppose that university professors are well protected from the public repercussions of their statements. Far better protected, say, than a university president, whose job security is far from assured, and whose decade-old memos from a previous job are still considered a worthwhile topic at Faculty meetings. ("We do not fear open give-and-take about anything you might have said," Skocpol told Summers, while at the same time decrying the public criticism of professors--i.e., open give-and-take about something she might have said.)

Yet the holder of an endowed chair leads a tenuous life, and must often take cover behind a shield of anonymity. The unknown professor who took Summers' apologies to be disingenuous, the "senior faculty member" who speculated on his future--these endangered souls chose a safer path than their colleagues, who went on-the-record for The Crimson and will presumably be shot at sunrise.

Those of us who have already left campus are shocked to hear what Summers has done. We must have missed the news of academic sanctions levied against those who supported the visiting poet Tom Paulin. We have not read The Crimson's repeated exposés of junior faculty denied tenure for their political speech. (Except, perhaps, for Peter Berkowitz.) Including the case of former Fletcher University Professor Cornel R. West '74, we have not even seen public criticism by the President's office of any member of the Faculty for political positions. In fact, the only person we've seen threatened with losing his job is Larry Summers.

As alumni, we have a right to be concerned. The University should, in the words of the University of Chicago's Kalven Report, be a home of critics, rather than a critic itself. Perhaps, when a president speaks on politics--even off-the-record, and in a personal capacity--that barrier is crossed. Yet whether the subject is women in science, Afro-American studies, or Paulin, Summers' comments have been subject to withering criticism from faculty and students alike. What intelligent person could read the papers and conclude that all of Harvard thinks as he does, or that its Faculty feels any pressure to agree? It is possible that Summers' outspokenness has diminished his effectiveness in leading the University. But that, if true, says far more about Harvard than it does about Summers.

Many aspects of Summers' tenure--his bull-in-a-china shop reputation, his handling of Allston or the Core or the appointment of deans, his brusque or 'corporate' style--deserve serious and searching discussion. Under his leadership, Harvard is making long-term changes to its curriculum and physical plant. If those decisions are being made poorly, or without appropriate consultation, the Faculty needs to speak up.

Summers deserves part of the blame for allowing his political comments to overshadow his academic commitments. But the Faculty will deserve even more if it wastes its energies in the same way. What Summers thinks about statistical variations in scientific ability is not as important as what he thinks about Allston or curricular reform, and these issues are lost amid the rancor. According to Wednesday's Crimson, the two main docket items at Tuesday's Faculty meeting--the progress of the Curricular Review, and a letter from the Dean of the Faculty setting out controversial new tenure procedures--"went unaddressed."

Were it to stick to safe, easy topics, the Faculty might find time to discuss these issues at next week's emergency meeting. But what requires bravery, real bravery, is to place anonymous quotations in student newspapers, to focus attention on illusory repression, and to shortcut discussion by calling for a motion of no confidence.

We are not spineless, after all.

Stephen E. Sachs '02 was editorial co-chair of The Crimson in 2001.

 

11:04 AM :: Stephen (contact)

Conspiracy Theory: The Associated Press reports -- in an article improbably headlined "French Deliver Tsunami Aid With Panache" -- the following news:

Critics of the U.S. military's work in Indonesia say Washington has seized on the disaster as a pretext for advancing its strategic interests in the archipelago and improving ties with the Indonesian military.

Those ties effectively were cut in 1999 after Indonesian troops and their proxy militias killed 1,500 East Timorese after the half-island territory voted for independence in a U.N.-sponsored independence referendum.

During her recent Senate confirmation hearings, Secretary of State Condoleezza Rice said the tsunami provided a "wonderful opportunity" for the United States to reap "great dividends" in the region.

I found Rice's quote rather surprising, so I went ahead and looked up the context. After a long question about American public diplomacy, Sen. Voinovich asks:

VOINOVICH: ... And we were in England, and we were in Southeast Europe, and then at the NATO meeting in Venice. And I was just shocked at what I got back from our friends about how badly we're thought of today in that part of the world.

And I just wonder, what are you going to do to try and change that?

I think what we're doing in the tsunami right now is wonderful. I think it's -- but we have got to show people that we love them, that we are for democracy, that we want them to enjoy the same thing but we haven't any hidden motives.

What are you planning on doing in that area to respond to that?

RICE: Senator, first of all, I do agree that the tsunami was a wonderful opportunity to show not just the U.S. government, but the heart of the American people. And I think it has paid great dividends for us.

Sometimes what happens is that we've had to ask people to do very difficult things and we've had policies that people don't like.

I think in some corners there are people who've been unhappy with the way that we've dealt with the Middle East, with the strong support for Israel, with our strong belief that terrorism has got to stop there.

But we somehow have to get the message out that this is also the first president to call, as a matter of policy, for a Palestinian state, and somehow we're not getting that message out as well.

What I plan to do is that I'm going to put a major emphasis on public diplomacy in all of its forms. That means in getting our message out.

I don't think there's any plausible reading of her comments as an attempt to suck up to the Indonesian military -- rather than just an answer to Voinovich's question using his own words.

The AP continues:

The dispatch of the USS Abraham Lincoln's strike force has been viewed in some quarters as an effort not only to help survivors, but also to burnish America's image among Islamic communities worldwide by delivering aid to the largest Muslim country in the world.

The French maintain they do not have strategic interests in the region.

Hmm. I was wondering what all those TotalFinaElf concessions were doing...

How can the AP get by with reporting that the French "do not have strategic interests in the region," without so much as blinking an eye? Were they trying for sarcasm? And for that matter, who are the "critics of the U.S. military's work in Indonesia," and is there any particular reason why they have to remain unnamed? Are they fearing for their safety? (My college paper wouldn't use anonymous sources for mudslinging, unless there were good reason why they had to stay anonymous.)

In other words, this whole piece strikes me as just bad journalism, especially for the AP. Requests for clarification can be sent to info@ap.org.

 

5:11 PM :: Stephen (contact)

Sweet Nothings: Modern life is wonderful and various. Before the age of the Internet, who'd have thought it would be possible to order custom-printed M&M's--with your own choice of colors, and with 2-line messages of 8 characters each--from the comfort of your own home?

Apparently the messages are monitored for propriety, but it would be fascinating to know what the customers write. How long before M&M's deliver their first hapless marriage proposal, or the news that "Its over / btwn us"?

 

3:11 PM :: Stephen (contact)

On Clarity: One final point that should be made about Kennedy's essay: it's very clearly written and easy to understand, even if you disagree with his argument. What's more, Kennedy maintains this level of clarity while challenging the form, as well as the content, of legal education and legal reasoning.

As a result, Kennedy's essay is a welcome respite from some other CLS scholarship we've read, in which the bad writing served only to mask the incoherent argument within. It's a perfect counterpoint to the post-modern attitude that to be effectively 'subversive,' an essay must be either a jargon-laden monstrosity of Theory, or a disorganized, ill-considered, self-obsessive, stream-of-consciousness train wreck.

By means of comparison, I offer the following description of a conference in Oxford last June:

Today's geo-political climate has posed new challenges to the ways in which we theorize violence and our relationship to it. The tension between epistemic violence and emerging modalities of warfare (e.g. cellular, decentralized terrorism and post-globalized neo-colonial occupation) has destabilized the preservation of any static notion of "the violent." Clearly, it is now more critical than ever that we metatheorize the discursive and literal space of violence, and investigate its relationship with our present historical moment. The panel discussion will address violence, as a problem and/or a question, and its location in the interstices of the strategic and the performative.

(Emphasis added.) Clearly...

 

3:04 PM :: Stephen (contact)

In Training for Hierarchy: Cleaning out some old email, I discovered an essay that a friend forwarded me several months ago when she found I was headed to law school. Entitled "Legal Education as Training for Hierarchy" (PDF / HTML transcription), it was written by Harvard law professor Duncan Kennedy in 1982, and is still a worthwhile read. On my reading, Kennedy attempts to make three points of note:

• first, that there is no such separate discipline as "legal reasoning," and attempts by law professors to instill it in their students are misleading and politically biased;


• second, that common forms of left-wing thought--especially the discourse of rights--"are likely to hinder rather than assist" in the struggle to maintain autonomous political beliefs; and


• third, that the confrontational and curmudgeonly style of legal education (as well as the horrific recruiting process to follow) drills into students an acceptance of hierarchy and an unwillingness to challenge the system.

Let's take these in reverse order. I'm not well equipped to discuss the third point, mainly because the nature of legal education may have changed a great deal in 20 years--and also because Yale has a singularly non-confrontational approach. (Prof. Richard Brooks, one of the world's nicest men, teaches a very different first-year contracts class than Kennedy's.) In my first semester, I don't have a single professor who employs the Socratic method, and the professor best known for peppering his first-year class with questions, Owen Fiss, is anything but reactionary. Even the recruiting process has been somewhat defanged; the students aren't all competing for the same high-powered corporate jobs, but are pursuing diverse goals in different fields. Maybe this will change come clerkship time, but for the moment, it seems that system-challenging seems to be part of the atmosphere at a place like Yale. (Moreover, it may be perfectly possible to accept one's place in a certain kind of hierarchy--the hierarchy of law schools, of class rank, of prestigious jobs--and still be unwilling to accept wider social hierarchies or the political status quo. Otherwise, the "limousine liberal" stereotype wouldn't exist.)

On the second point, Kennedy argues that the widespread adoption of rights discourse further entrenches legal hierarchies:

This wouldn't be so bad if the problem with legal education were that the teachers misused rights reasoning to restrict the range of the rights of the oppressed. But the problem is much deeper than that. Rights discourse is internally inconsistent, vacuous or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make almost impossible its functioning effectively as a tool of radical transformation. Rights are by their nature 'formal', meaning that they secure to individuals legal protection for, as well as from, arbitrariness - to speak of rights is precisely not to speak of justice between social classes, races or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of 'civil society’ in which atomised individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualise radical proposals such as, for example, decentralised democratic worker control of factories.

Kennedy's choice of example is odd, to say the least. There are plenty of problems with rights-talk (some of which Kennedy describes in other writings), but an alleged inability to conceptualize "democratic worker control of factories" isn't one of them. Robert Nozick, of all people--one of the foremost defenders of rights and rights-talk, and someone committed to a very different kind of politics than Kennedy--explored such proposals extensively in Anarchy, State and Utopia. (See his discussion of exploitation in chapter 8.) And the remarkable failure of this example might imply that rights discourse is hardly as inflexible, or as antithetical to notions of social justice, as the article implies. After all, if rights justifications can be generated for "almost any result," why are the results required by social justice excluded?

The most important argument in the essay, though, is the first point, which doubts the existence of legal reasoning as a distinct means of resolving legal questions. Kennedy describes the law school curriculum as follows:

First, there are the ground rules of late-nineteenth-century laissez-faire capitalism. Teachers teach them as though they had an inner logic, as an exercise in legal reasoning, with policy (for example, commercial certainty in the contracts course) playing a relatively minor role. Then there are the second- and third-year courses which expound the moderate reformist programme of welfare capitalism and the administrative structure of the modern regulatory state. These courses are more policy-oriented than first-year courses, and also much more ad hoc. Teachers teach students that limited interference with the market makes sense and is as authoritatively grounded in statutes as the rules of laissez-faire are grounded in natural law. But each problem is discrete, enormously complicated, and understood in a way that guarantees the practical impotence of the reform programme. Finally, there are peripheral subjects, such as legal philosophy or legal history and clinical legal education. These are presented as not truly relevant to the hard, objective, serious, rigorous analytic core of law.
 
This whole body of implicit messages is nonsense. Teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical and political discourse in general (that is from policy analysis). It is true that there is a distinctive lawyers' body of knowledge of the rules in force. It is true that there are distinctive lawyers' argumentative techniques for spotting gaps, conflicts, and ambiguities in the rules, for arguing broad and narrow holdings of cases, and for generating pro and con policy arguments. But these are only argumentative techniques. There is never a correct legal solution that is other than the correct ethical and political solution to that legal problem. Put another way, everything taught, except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follows that the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way. And the curricular distinction between the nature of contract law as highly legal and technical, by contrast, say with environmental law, is equally a mystification.

This kind of skepticism about legal reasoning is rarely heard in a law school classroom. When the Supreme Court renders a 5-4 decision on a politically controversial topic, there are plenty of people who argue that the justices have abandoned legal reasoning for political decisionmaking. But Kennedy's argument doesn't claim that judges merely fail to adhere to the legal standard; rather, there's nothing else they can do--the legal standard doesn't exist, and all legal decisions are inherently ethical and political ones.

At first glance, Kennedy's complete denial of legal reasoning is counterintuitive. When a court dismisses an action barred by the statute of limitations, it certainly seems to apply something like legal reasoning. Or, at least, it doesn't seem that it's making an individualized policy judgment based on "the correct ethical and political solution to that legal problem." No matter how sympathetic the parties in the case, the court applies what looks like a distinct and correct "legal solution."

Perhaps, one might argue, this claim takes too narrow a view of ethics and politics. Perhaps the judgment to dismiss is indeed a policy decision: one that takes into account, among other values to be served, the predictability and stability of the legal system. On this account, the court considers the various reasons in favor of granting the plaintiff relief, and then concludes that continued fidelity to the statute (or to precedent, or to accepted doctrine, etc.) carries greater weight in its ethical/political calculus. In many cases, judges' commitments to these values will trump other considerations of utility or equity, thus leading to the automatic and inflexible application of principles. In others, such application seems so inconsistent with justice or other values that judges will seek to distinguish the case at hand, so that a contrary decision can be rendered without upsetting the whole. And in still others, the principles themselves are sufficiently vague and ill-defined that little effort is needed to reconcile them with the desired result; the policy choices can be snuck in through the back door.

This account of judicial decisionmaking is plausible, not least because it is in some sense irrefutable; so long as the ethical/political calculus is sufficiently broadbased, and the potential values to be pursued sufficiently open-ended, any process for rendering decisions could be so described. What this value-balancing approach cannot do, however--or, at least, cannot do on its own--is give content to the notions of predictability and stability it incorporates. Which decisions would destabilize the system, and which would render it more predictable? Which would be more consistent with previously recognized rules--whether embodied in custom, doctrine, precedent, or statutory text--and which would be less? These questions must be meaningful, if all of the values that might motivate a decision are to be brought under the same ethical/political roof; and yet they seem very different from the kinds of value questions we encounter in daily life, the ones that usually go under the names of "ethical" and "political." If we don't want to call their investigation "legal reasoning," we can give it another name: "Predictability and Stability Studies," let's say. And then we can go on to build a "Predictability and Stability" school in New Haven, where idealistic students are peppered with unfriendly questions before they are hired as Predictability and Stability consultants at Skadden, Arps.

In other words, if Kennedy's account is sufficiently general to describe what lawyers and judges actually do, it will have to accept the existence of something very similar to what currently goes by the name of "legal reasoning"--or risk a distortion of lived experience. If legal reasoning did not exist, we would have to invent it.

Alternatively, perhaps Kennedy meant to focus his critique only on those foundational decisions, so often the focus of first-year classes on private law, that lay down a new rule or that change the common law in a substantial way. Yet these decisions quite explicitly disclaim any origins in the mere analysis of legal concepts. As I study for my Contracts exam, the parol evidence rule doesn't appear as an immaculately conceived scion of Reason, but rather as an unhappy compromise between giving effect to the wishes of the parties and avoiding fraud or mistake. The same goes for the "mailbox rule," which treats the Postal Service as an agent of the offeror for the purposes of acceptance. In this semester, at least, we've been taught the vision of Erie instead of the vision of Swift; laws are made, not discovered, and the common law is that branch of law which has been made by judges. When the California Supreme Court decides to abolish the distinction between licensees and invitees, or when a jurisdiction decides to move from a contributory-negligence regime to one attributing comparative fault, the reasoning involved is quite clearly not the same kind as that involved in construing a statute or applying past precedent. And we rely on legal reasoning itself in order to see that there has been a change in the previous standard, that the old doctrine and the new are inconsistent.

Indeed, could it ever have been taught thus? Legal realism is nothing new; Holmes and Brandeis are much closer in time to the "late-nineteenth-century laissez-faire" world Kennedy envisions than they are to today's court. And few professors today would claim that an entire legal system could be created without attention to ethical or political values, even if they're ready to make the non-relativist claim that a particular value system is correct.

As a result, I don't find Kennedy's skepticism about legal reasoning very compelling, nor do I think that law school's emphasis on rights discourse, even if it's ultimately ill-founded, is inherently supportive of hierarchy. Nor, for that matter, does Yale strike me as a deeply hierarchical place--especially for an institution that often grants entry to the halls of power. Of course, maybe I've merely imbibed the hierarchy for so long that I can no longer see it; or maybe, as Kennedy writes in his concluding paragraph, I've fallen victim to "false consciousness." But I've heard that capitalism's running dogs are fed well, and for the moment I'm willing to take my chances.

 

5:22 PM :: Stephen (contact)

Quote for the Day: From Civil Procedure: Examples and Explanations, by Joseph W. Glannon:

"Regardless of a party's reason for wishing to relitigate a dispute, the doctrine of res judicata stands like a brutish, unreflecting myrmidon, guarding the doors of the courthouse."

 

4:04 PM :: Stephen (contact)

The Advances of Science: Straight from the Internet Journal of Medical Toxicology:

"Although other causes of symptoms could not be rigorously excluded, we conclude that cooked tarantula is a potentially irritating food."

(Warning: link contains icky pictures of tarantulas.)

 

2:58 PM :: Stephen (contact)

Back in New Haven: And fresh from a Torts exam, with a complex issue-spotter invoving hazardous chemicals, allegedly defective car seats, and the exposure of chimpanzees to Barry Manilow. (No joke.)

In other news, I came back from vacation to find the following on my answering machine. Disturbing, no?

"You have two messages:

"Message One:

"'Hi, this is, uh, [name inaudible]. I'm having a little trouble again, Doctor. [cough] The tooth came out again, while I was eating. That was back on Friday, but I was awfully sorry about what I heard about your father -- didn't want to bother ya then. Get back to me as soon as you can, please? Thank you.'

"Monday, 2:42 p.m.

"Message Two:

"'If you would like to discontinue this automated recording, press 1.

"'An inmate from DONALD W. WYATT DETENTION FACILITY, DONALD W. WYATT DETENTION FACILITY, has attempted to place a call to this phone number.

"'The call wasn't able to complete, due to a collect call block with your local telephone company. If you would like to receive calls from DONALD W. WYATT DETENTION FACILITY in the future, please have this block removed, by calling your local telephone provider. Thank you. To repeat this message, press 3.'

"Monday, 7:07 p.m.

"End of Messages."

 

1:40 AM :: Stephen (contact)

Happy New Year! As recent events offer a sobering reminder of how tenuous life can be, best wishes for a safe, happy, healthy year to all.

This has been both a busy and relaxing break -- in between studying for classes and thesis revision, I was able to spend some time at home with family, as well as to attend the wedding of two friends in Rockford, Ill. I've got exams as soon as I get back, so posting may be a little light in January.

One highlight: on my last day at home, I went to see Painted Prayers, an exhibition of medieval books of hours at the St. Louis Art Museum. As you probably know, I'm partial to medieval and renaissance art, especially books of hours, and these works were absolutely terrific. If any of you are in St. Louis before Jan. 9, you must go see the exhibition.

These books of hours were designed for personal use in a private home, where readers would return to them several times a day for the 'hours' of prayer. As a result, the manuscripts offered intricate designs and complex imagery to hold the reader's attention in repeated readings. The books themselves were small and easy to hold; the museum wisely provided magnifying glasses in the exhibition, so that visitors could see the extraordinary level of detail in the painted miniatures. Unfortunately, some of the most memorable works aren't available online, but some are in the Morgan Library's digital collection -- such as a simple but beautiful Nativity, a penitent Jerome in the desert, and an allegorical representation of Lust. (Note the checkered pavimento pattern in the latter, displaying an attempt at artistic perspective.)





The exhibit was very informative, explaining the unusual medieval system of marking time -- complete with lunar-based "Golden Numbers," Roman 'kalends' and Christian saints' days -- in the following calendar page for February:



The audiotour was also helpful -- and as it turned out, I recognized some of the background music. To accompany an Annunciation scene, you could certainly do worse than Dufay's Ave Maris Stella (buy it here or here). (Best line from the audiotour, concerning an "Annunciation to the Shepherds" by the Master of the Échevinage de Rouen: "At the bottom of the page, there's a monkey, playing the bagpipes." Haven't you always wanted one of those?)

The promotional book is sold out, for good reason, and the exhibition will only be traveling to one more city. But if you're within range of the Getty Museum when the exhibition reaches L.A. on October 18, 2005, make sure to check it out.

P.S.: I've been linking to Ross Douthat and The American Scene since way back, but I'm very pleased to see their recent resurgence (and guestblogging role!) with a new co-conspirator. Go read their stuff.

P.P.S.: Confidential to CLM -- thank you for your interest in my writings on Missouri statutes concerning pornography and prostitution. Even were I inclined to assist you with Volume 2 of your DVD series, however, I have not yet passed the Missouri bar, and thus am not qualified to offer legal advice.