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October 30, 2004

New Grauniad Mistake

Well, Ian Katz of the Guardian writes a remarkably self-satisfied account of his attempt to spam the citizens of Clark County, Ohio. Once again, I object to this project simply because, hey, it's spam.

But someone needs to put out an APB on a Michael Dorf. According to Mr. Katz, Professor Dorf now works for an entity called the "University of Columbia." You've heard it from the U.K.'s newspaper most prone to (at least grammatical and spelling) error, folks: in case you're in his Civil Procedure class, the Guardian doesn't know where he's got to. Next time you spot him at the lectern, you might want to IM them.

Update: Since someone asked me why I was making such a seemingly petty point, it's worth noting that the spelling in the Guardian is so bad that it's an open joke in England. They even published a book of some of their better errors a few years ago. I tried to find it on Amazon.co.uk, but couldn't manage it. This was intended as a joke, not any serious criticism of the Guardian.

Last Word On Election Blogging Before Tuesday: This Blog Endorses Bush

Right: I wasn't going to do this, because the idea of a blog endorsement seems pretty silly. Likewise, me endorsing Bush is about as exciting as the New York Times endorsing Kerry. I mean, it's not like you're shocked. But because my friend Martin asked for my defense of George Bush and because Lawrence Lessig and his pal Dan Winer have found a way to tie this all into Google, I can't resist. After this, law blogging, I promise.

So here we go. This blog endorses George W. Bush for President. Why?

Don't Call Me Stupid: Contrary to what you might hear elsewhere, I don't believe Bush is stupid. Look, I don't believe stupid people get to be president: the process is too tough. I think he's a fantastically bad public speaker, but then anyone sad enough to have been subjected to my moot court presentation last year should see why I'm not too judgmental about that. Nor do I think he's a liar (that is to say, more than anyone else in politics), Hitler, a war criminal, or what have you.

I'm A Republican: I somehow doubt that a Kerry administration is going to be better for the Republican issues that I care about. Four years of Kerry means more Ginsburgs and Gasparinis, while four years of Bush means that Scalia and Thomas might get a playmate. Go figure which I'm hoping for. (Enlightened self-interest: Scalia opinions are more interesting than Ginsberg ones, and I may have to read more of them.)

"Here lies a man who became wealthy by surrounding himself with people smarter than himself": Not only don't I think Bush is stupid, I admire the man's management style. (Largely, as you might suspect, because it's similar to what I'd like my own to be.) Look, I'm not that bright, though I know enough to know I'm not that bright. And I've also been around the block enough to know that raw intelligence isn't the only--or even most important--feature in a leader.

Rather, Bush has done what I've tried to do in leadership positions: surround himself with people who are very smart, particularly those who have differing opinions. Rice, Cheney, Powell: these guys are not idiots. And once he has them there, he leads in such a way that he has their loyalty, such that even when they disagree with him they stay. And my impression is that even if he decides against them, he listens. Certainly he fits the profile and pattern of similar bosses and leaders that I've met and worked with.

That's why I've been suspicious of things like Suskind's "reality-based community" article, or anything Paul O'Neill's written. The bitterness of those ejected from such a community is often quite intense, and Suskind's article relies heavily on "unnamed sources," the grinding of whose axes can be read between the lines. I'd expect that with Bush's style of leadership--it's a natural outgrowth of it--and thus that kind of sniping just doesn't bug me.

Can I prove this beyond doubt? Well, no. It's more how he strikes me, the gut-level opinion. But none of the evidence I've been presented with has shifted it.

Mad Dogs and Englishmen: And of course, the evidence presented, or rather its presenters, is one more reason for voting Bush. To put it simply, I'd endorse Bush simply because there exists a contingent of mouth-frothing Mooreites who will, just fractionally, be pissed off by it.

Look, despite what anyone might say, this is not the most important election of my lifetime. Reagan/Carter was a true choice of visions, an election that culminated in a political shift the Democrats are still rueing to this day. Clinton/Bush I: now there was a pivotal election, the triumph of centrists over partisans. And of course, the 1994 elections. But this one? Bush--despite the howling of the left--is a fairly liberal Republican, just as Clinton--despite the howling of the right--was a fairly centrist Democrat. I mean, remember when Republicans talked about eliminating the Department of Education?

I've said for a while my plan for election night is this: get a glass of cognac and thick cigar. If Bush loses, I'll drink the cognac, and by the time the glass is finished, I'll be over it. But if he wins, I'm going to the nearest window to revel in the howls of pain, the cries of frustration, the gnashing of teeth among the fevered left of New York City, especially around Columbia. Three Years of Hell to become the Devil? In a mere year and a half I will be listening to the wailing of the damned the likes of which the Furies have not heard for ages. After enduring the campaign in this city, nearly a year of continual low-level nastiness, I can't imagine anything going better with cognac and a good cigar.

So that's my final reason for voting for Bush: almost every reason for not voting for him has been presented to me not by someone dispassionately trying to convince me, but by those calling him "a semi-retarded war criminal," or part of the "Texas Taliban." The data generally doesn't match the charge. Back in 1996 and 2000, the raving was on my side of the political divide, and it was enough to drive me towards voting Libertarian. Now it's afflicting the Democrats. I don't want my vote to support such hysteria. Given how little I think the results matter, merely that reason is reason enough.

Confirm Your Prejudices

A friend of mine had a lament back during the Rathergate scandal: "Why is it that the media never makes dumb errors like this against us?" Needless to say, he's a democrat.

I mention this because there's another "memo"-like scandal coming out. The Lancet released a study this week purporting to show that 100,000 "excess" civilian casualties have occurred because of the invasion of Iraq. The headline numbers have received quite a lot of media coverage, and one's usual suspects (like Prof. Leiter and Prof. Heller) have jumped all over it. States Prof. Leiter: "So much for the pathetic "humanitarian" rationalizations for the war."

Now, the general point to be made about the war--that the mortality rate has probably risen--doesn't seem counterintuitive. Much like the memos scandal, this isn't really controversial. But just as with Rather, the Lancet's overreaching for extravagant "proof" is becoming the story itself.

You see, any casual reader of the report should have had alarm bells ringing the moment they got to the first page. I pointed out to Prof. Heller in his comments section that while I wasn't a statistician, this smelt pretty funny to me. Over the last few days, other commentators have been clobbering the report with more authority. The best analysis is probably in yesterday's Slate. It begins with the same fact as most of the critiques: the 100,000 number is in fact as follows: "98,000 extra deaths (95% CI 8000-194 000)" In other words, the authors are 95% certain that the number of "extra" deaths lies between eight thousand and nearly two-hundred thousand. As Kaplan says, "This isn't an estimate. It's a dart board."

I'll leave it to my readers to link through and look at an accounting of the methodological problems with the survey: use of clustering in a population with highly divergent results; confirmation of few of the deaths; failure to compare results with other reports. And of course, the fact that the lead author is both anti-war and insisted on pre-election publication raises questions of political bias and motivation.

None of this was obscure: it only took reading the report and the surrounding publicity. (Of course, the New York Times noted nothing about the "expedited" peer-review of the article and its author's insistence on pre-November haste.) But neither Heller, Leiter, or their ilk wrote critically about the numbers, instead focusing on the headline figure and from there drawing their preferred political conclusions.

And herein lies the lesson, I think, for bloggers: check your prejudices when they tempt you. There's a strong urge, particularly in a heated electoral season, to quickly grasp those things which seem to support your favored positions. I mean, I'd love to see a headline tomorrow that said something like, "KERRY FOUND IN IOWA AL QAEDA BORDELLO--EVENING SPONSORED BY MOVEON.ORG DONATIONS FROM HEINZ FOUNDATION". But if the headline came from National Review, I would think thrice before linking. I'd probably call friends in Iowa to make sure that the hotel in question existed. Emails to the reporter might be in order, or to prominent members of local law enforcement. I'd certainly search the blogosphere for counterarguments before penning anything. And if, for instance, it turns out that this house of ill-repute were run by an old Jewish madam and the source of the Moveon.org link was Karl Rove's ex-girlfriend... well, let's just say that I'd link to those parts of the argument, if not talk about something else instead of post on the subject. (For instance, I've said very little about the Swift Boats Veterans, because frankly I couldn't evaluate that evidence properly if I took the time, which I won't.)

There's a reason for doing this, and it's summed up in one word: credibility. Anything coming out these days that seems too good to be true probably is. I have to admit that during the Rather scandal, I was continually waiting for the other shoe to drop: the mythical Selectric coming out of hiding and typing out a damning indictment of internet sleuthing, Dan Rather bringing the necessary witnesses back from the grave to testify... something. The idea that CBS would shoot itself in the foot this badly just seemed to be such a gift. I got lucky: my original post on the subject wasn't thoroughly researched enough, but seems to be correct as of this date. But that was luck, and I wouldn't count on it again.

The thing is, as a blogger you've got a continual electronic record of your errors, especially if you get a lot of links. While correcting those mistakes counts for a lot, not making them in the first place is better. And the best way to do that--and preserve a good reputation--is to ensure that your sources are solid before you use them. This Lancet study should caution those who cited it. At least, one would hope.

UPDATE: Add Ambimb to the list of blogs I read that have quoted this study without critically evaluating it. Still, you can hardly blame him, since he reads the Guardian, which should get win, place, and show in the Uncritical Prejudiced Analysis Derby. In light of the above, note the Guardian's introductory paragraph: "About 100,000 Iraqi civilians - half of them women and children - have died in Iraq since the invasion, mostly as a result of airstrikes by coalition forces, according to the first reliable study of the death toll from Iraqi and US public health experts." There is nothing of the critical analysis I've linked here, not even a quote from outside experts. The paper is taken as gospel, the "first reliable study."

Martin, bear in mind the next time that you tell me the Guardian is a "reliable" source that in their mind, "reliable" means somewhere between 8,000 and 196,000.

October 28, 2004

Guilt, Lunch, and Other Firm Concerns

From Anonymous Lawyer:

Someone accepted an offer today. Next summer's class is starting to shape up. I hate the people who take forever to decide, and make us send them cookies, or brownies, or t-shirts. Those things shouldn't make a difference.

I've yet to settle on a firm. All I can say is, I really hope none of the firms I'm looking at do send brownies, t-shirts, or whatever. AL's right: it shouldn't make a difference in the decision, and for most students it probably doesn't. What it does make a difference in is the amount of guilt one feels calling up the firm to say you took a different offer.

Throughout this interview season, I've visited most of my firms in the morning, which means that after meeting some associates and partners I'm generally assigned a young associate to accompany to lunch. Don't get me wrong--these have been very, very enjoyable lunches, and I've genuinely enjoyed meeting the people I've interviewed with. But particularly at some of the larger firms, the cost of the lunch has dwarfed my standard weekly lunch budget by factors of four or five.

I can understand the purposes of the lunch interview. On the one hand, the interviewee is more likely to trust an associate's view of the firm if given outside of the building. The associate can make certain that the interviewee doesn't drink from the finger-bowl, pick his nose at the table, or otherwise display humiliating tendencies in public. And of course, there are some secondary benefits: the associate gets to have a nice lunch on the firm, and the interviewee can (presumably) look forward to doing one or two such lunches in the future over the course of their employment.

None of this, however, requires a very expensive lunch. Certainly three figures for a table of two would be far more than necessary. And indeed, too nice a lunch brings its own worries: this is, after all, their client's money they're spending, and their associates time (both in what's spent with me, and what the associate will have to bill to make up the difference in profits). We lawyers are fairly exchangeable commodities, and shouldn't justify that much investment in capture. Besides, if you're about to sell your soul to someone, do you really want them to have spent that much on it before they take possession of the goods?

Anyway, I guess I just wanted to say to the Anonymous Lawyer that the emotion cuts both ways. He doesn't like those of us who are weighing our options "making us send brownies." Some of us feel guilty for receiving them. All in all, I wonder if the brownie companies aren't making out like bandits in this equation.

Ungentlemanly

So in the computer-related election story of the day, it appears that the Bush-Cheney site has cut itself off from the world outside the U.S. (via Frankenstein). Chris, a sensible fellow who generally admits his lack of computer knowledge, blurts out "this is ridiculous", even though he links to this story.

I'm really hoping that Chris meant for his "this" to have an antecedent of "the distributed denial of service attack," and that his statement is merely misphrased, because otherwise I'm unclear on why the campaign site shouldn't respond as it did. Cutting off out-of-country web traffic may be inconvenient, but in the seven-day run up before an election, one would expect that reliably serving your target audience (voters mainly resident in America) will be more important than not providing service to non-target audiences.

Of course, one of Frank's commentors leaves the charitable: "A-------, but what else is new?" The dialogue on Chris's site again focuses on how horrible this is, and how Bush just doesn't like foreigners. But if we assume that most of the DDOS traffic was originating overseas (reasonable, especially since the block seems to have worked), and that the deciding factor was provision of continued service to the site's target audience, I'm wondering what Chris or the geniuses commenting actually suggest was to be done on the server side? It's worth noting that this decision seems to have been implemented by Akamai, a professional outfit. (I know I'd pay them for hosting before I would Chris.)

Now, I'd have given significant props to anyone--Kos, Chris, whomever--who had made the appropriate noise here without being prompted: that the real shame is the DDOS attack. After all, it's not like the Bush campaign made this decision in a vaccuum. And I'll tell you: if Kerry went on TV tomorrow, addressed the issue, and said to his followers, "I don't care who you are or what you think you're doing, stop it! My opponent has the right to be heard!" he'd probably get my vote. (I'm in New York, so who cares, right?)

I'll be the first to say that this election hasn't been the cleanest in memory, and that partisans on both sides have behaved atrociously: accusations of voter fraud, for instance, are becoming bipartisan sport. But DDOS attacks on the sites of either candidate should be out and out disgusting at this stage of the race. And unless Chris has a better--and by this I mean faster and just as effective--solution to Bush's problem... well, he might at least have said something pejorative about the attackers.

I guess that's just too much to ask for these days.

October 27, 2004

Wasting Time Proves You're Alive

I don't have time enough to use this--and I'm old enough to have played it the first time around--but the BBC has now put a new flash-based interfaced on the old Infocom version of the Hitchhiker's Guide to the Galaxy.

Hint: Your first two steps are STAND UP and TURN ON LIGHT.

October 26, 2004

Batman is a Republican and Spiderman is a Democrat

It's only a week until the polls open. The candidates have spoken, the pundits have punded... has a single voice not yet been heard? Certainly for New Yorkers, there's one more opinion we need to hear from. Really, before Gotham goes to vote, shouldn't we consider which lever our heroes will pull when they get out of their spandex and into the voting booth? Which is why I'm here to explain to you that Batman is a Republican, and Spiderman is a Democrat.

Consider the evidence.

  • Class: Batman's hides in plain site as billionaire playboy Bruce Wayne. Peter Parker spends a lot of his non-webswinging time getting Aunt May's jewelry out of hock. Who do you think benefited more from Bush's tax cuts?
  • Military Spending: Sure, Spiderman has a host of little electronic spider-trackers, his web-spinners (unless you go by the movie version) and various other bits of tech. But this pales in significance before the Batmobile, the Batcomputer, the Batplane... Certainly when it comes to allocating $87 billion for an invasion, Batman's going to show a lot less hesitation than, say, John Kerry.
  • Views on the Power Structure: Batman does things that are thoroughly illegal, whilst working with low-level officers (Commissioner Gordon) and building coalitions (including, occasionally, unsavory elements like gang bosses). He's routinely denounced by mayors, governors, presidents, and anyone else who has no idea of facts on the ground. Remind you of any coalitions of the willing? Spiderman, on the other hand, is only really hated by the Daily Bugle. And lets face it, does the Bugle more closely resemble the New York Times or the New York Post? As they say, I report, you decide.
  • Motivation: Spiderman is all about "great power" and "great responsibility." Indeed, he can drone on about it repetitively in a style as flat as a certain Boston Brahmin. He's driven by guilt that he did one thing wrong long ago, and thus must make amends for the rest of his life by making sure nothing like that ever happens again. Batman, on the other hand, gets up in the morning driven by a sense of abstract eye-for-an-eye justice probably deriving from a deep-set desire for vengeance. (And let's consider how little hold Michael Moore must have on Batman. You can just imagine the most famous orphan in comics: "You mean George W. Bush has an obsessive desire to defeat Hussein? Sounds reasonable to me: Hussein tried to kill his father.")
  • Willingness To Break The Law To Get The Bad Guys: Once again, Spiderman endures endless angst about whether his spandex-clad role is compatible with New York's existing legal order. Batman, on the other hand, considers Gothams existing order either fundamentally corrupt or ineffective, and so doesn't mind stepping around it. Remind you of anyone's attitudes towards the UN?
  • UPDATE--Fascist Reputation: Frequent commentor Sarah reminds me of one more: lefties like to call Batman things like "a rather fascistic Reagan-era hero." See, e.g., Mark Gauvreau Judge, Holy Censorship, Batman! Guess Who's Banning Comic Books, Washington Post, June 09, 1996, C5 (interview with Art Spiegelman). And what's more Republican than having a lefty call you a fascist?

So there you go. If you fancy the Caped Crusader, vote Gotham in 2004. If teenage webswingers are more your thing, vote NYC. If you're having a hard time finding a way to take voting in New York very seriously, here's your motivation.

In Case All This Reality Is Getting You Down

People say I seem to have too much time on my hands. (Ed's note: It's not true. I'm just chronically irresponsible.) But check out Today in Alternate History.

October 24, 2004

Evil Geniuses For A Better Tomorrow

Where will I find the time? Ever since I finished Dungeon Keeper 2, I've been wondering what might surpass it.

So now, when I'm too busy to take the time off, they publish Evil Genius.

Damn them. Now I've got to download the demo and haul out my old "Evil Geniuses For A Better Tomorrow Support Clinton" button...

Tool of the Trade, or the Law Blogger Cocktail Party

The longer this term goes on, the more I need the Cocktail DB, the Internet Cocktail Database. Apparently you just can't make Hell's Fire anymore.

One of these days, I should hold the Law Blog Cocktail Party:

Hey, I've got a big bar, feel free to leave other invitations...

(Via Frankenstein, whose cocktail must certainly be here.)

October 23, 2004

Political Ennui

Apparently, someone else shares my feeling of electoral burnout.

A new line of t-shirts have come out declaring Election Year 2004 to be "The Year of the Monkey F---ing a Football." (link most positively not work safe) [1]

Given the way this campaign's going on both sides, I need this shirt.

[1]: According to the site, the word is a dysphemism for "a task performed with extreme ineptitude.

Nicholas Kristof, Theological Man of Absurdity

The original title of this post was going to be "For All The Wisdom You'll Get, You're Better Off Listening to Flatulent Hamsters than Nicholas Kristof." Then I realized that I really didn't want Google traffic from those looking for hamster porn.

Nonetheless, it's difficult to express in mere words the level of disdain I have for Mr. Kristof's latest river of drivel in New York's most pitiful newspaper, entitled "God and Sex. A lot of ink has been spilled on this topic already, but Kristof adds nothing.

Let's set the corpus of his piece out on the dissection table and see why it's a dry husk of an argument. He starts out:

So when God made homosexuals who fall deeply, achingly in love with each other, did he goof?

Now, this is actually an interesting question, if stunning in its unoriginality. If you broaden it slightly outside the homosexual realm, you have merely the problem of evil and the existence of sin: how could an infallible god create creatures with the capacity to break his own commandments? Why would he do so, and why would he allow such evil people to exist?

That's not to say that homosexuals are evil. It's just that if you think you've found a way around the larger problem--and many have tried--then the question posed by Kristof is no trouble at all. And if you admit the existence of the possibility of sin, then Kristof's question just becomes a more trivial instance of the greater issue.

Of course, it's still an interesting question, but Kristof doesn't mean to invoke the problem of evil, theodicy, or anything of the sort. He means to make a rhetorical point which is amusing to the simple-minded, but just goes to show he doesn't understand what he's critiquing. We can see this in his next paragraph:

That seems implicit in the measures opposing gay marriage on the ballots of 11 states.

No, that would be implicit only if you judged them on perfectly secular assumptions. Anyone with even self-taught theological background would see the above and realize that no such statement is implicit, so long as one buys the existence of sin. You might as well say, "Did God err when he created individuals who have so much avarice that laws must be passed to keep them from stealing?"

So why is he speaking such obviously trite poppycock? Because he's got a whole column to fill until he gets to what is finally his real point, as we shall see. And that point, once you strip the puffery off of it, is hardly worth the ink.

I'll skip over the next few paragraphs of Kristof banality: conservatives shouldn't assume God is always on their side (they don't), liberals shouldn't abandon the theological field (they don't either, unless one has been ignoring the debate). But let's look at how he treats theological subjects when he gets to them, starting with the tale of the ill-fated Sodomites:

It's true that the story of Sodom is treated by both modern scholars and by ancient Ezekiel as about hospitality, rather than homosexuality. In Sodom, Lot puts up two male strangers for the night. When a lustful mob demands they be handed over, Lot offers his two virgin daughters instead. After some further unpleasantness, God destroys Sodom. As Mark Jordan notes in "The Invention of Sodomy in Christian Theology," it was only in the 11th century that theologians began to condemn homosexuality as sodomy.

As summaries go, I could do similar to Jane Eyre by stating that, "After an unhappy childhood, Jane meets a fellow called Rochester. After some further unpleasantness, she marries him." It's true, but anyone looking for the point of the book will miss it. (If you'd like an interesting take on the story, in more detail, I'd recommend The Harlot on the Side of the Road, by Jonathan Kirsch. Entertaining, sensible, and not that far from Kristof's position.)

What follows is the typical pablum you'd expect from Kristof, disguising itself as textual exigesis. Leviticus condemns wearing a polyester and cotton shirt. (I always thought the prohibition was between "linen and woolen," but maybe Kristof gets his clothing from polyester sheep.) Jesus praised eunuchs. The prohibition against homosexuality in the Bible comes from Paul, not Jesus.

Never is there an understanding of why some of the prohibitions of Leviticus stand in Christianity, and why others have fallen by the wayside. Indeed, if one were to follow a Kristoffian theology, the understanding of Judaism could never have advanced through commentary, which I suspect would come as a shock to less orthodox, not to say Reform, Jews. (Incidentally, why does Kristof never ask about Jewish or Muslim opposition to homosexuality?) Nor do we get any understanding of how, if the prohibitions against homosexuality are so textually flimsy that even a New York Times columnist can debunk them, they ever evolved in the first place. Kristof, to his credit, admits several times that the bulk of theological debate is generally against him, but then trivializes any of his opponent's very real arguments.

This is a shame, because some of the scholars he mentions--at least from my reading--seem very level-headed. Certainly Brooten's work on female homosexuality seems both lively and intriguing, and a fair measure of reasonable counterargument. It's a pity Kristof couldn't have confined himself to a book review.

Of course, Kristof isn't really interested in whether Christians should understand homosexuality to be a sin. He's mocking religious understanding, clear from his opening line, before getting to his real point:

In any case, do we really want to make Paul our lawgiver? Will we enforce Paul's instruction that women veil themselves and keep their hair long? (Note to President Bush: If you want to obey Paul, why don't you start by veiling Laura and keeping her hair long, and only then move on to barring gay marriages.)

Yes, you see, he's arguing for an iron wall between Church and State. Again, not a particularly novel argument, and certainly not enough to fill a column if he didn't have some vapid bile to spew with it. But even here he misses the point.

The debate on homosexual marriage does involve who we wish to be our lawgivers. But no one, not even the most fervid evangelical Christian, is supposing that this lawgiver should be Paul. (For one thing, he's dead. Come to think of it, he's a foreigner to boot.) Rather, the debate on state FMAs reflects a choice between our lawgivers being state legislatures--or even more, given these referenda, the people--or robed wise (wo)men on state supreme courts. After all, the only state in the nation to announce gay marriage did not do so through the polls, but through the pulpit of its courts.

In other words, even if the various FMAs up for voting this year are attempts to "make Paul our lawgiver," then his question answers itself: if we do vote them into law, then yes, we do want Paul to be our lawgiver. (This is ridiculous: a Muslim voting for an FMA would be doing no such thing, nor would someone like me who would vote in an amendment as a reproach for assertive judges. But if we grant Kristof his conceit, he seems to be answering his own question.)

It's almost embarassing to continue a catalogue of Kristof's ignorance, but how can I help it? He leaves the best ammunition against him to last:

So if we're going to cherry-pick biblical phrases and ignore the central message of love, then perhaps we should just ban marriage altogether?

Of course, no serious Biblical scholarship on either side of the divide is performed by "cherry-pick[ing]" phrases from holy books. Just as in constitutional law commentators make arguments from policy, legislative history, or statutory construction (and vary in the weight given to each), so Biblical scholarship involves similar tradeoffs. Kristof has spent his time building up, then burning down, a straw man.

There are some very fine arguments for why homosexuality should not be considered a Christian sin. Last year, the Columbia Chaplain sponsored quite a fine meeting where such topics were explored, and even Kristof points to some works that are raising interesting questions in this area. It would behoove those who wish to criticize Christianity to read them and learn the subject, and certainly to do more than read op-eds this pathetic.

Non-News In Politics

The New York Times endorses Kerry.

National Review, on the other hand, endorses Bush.

Since both have been flacking for their candidate for at least the last six months, this is hardly a surprise. But for those of you caught unawares, remind me not to spoil the ending of Titanic.

October 21, 2004

Talking Out Of Turn

I wondered a few weeks ago if I was just losing my touch. I hadn't really written anything of interest to law students in a while, and the diary aspect of my site was waning with the waxing of election-blogging. Though my readership seems stable, I'd noticed fewer links from other blogs. My time has been so full lately that I'd often felt as if I didn't have the chance to write. And I know the project's going badly when even Google feels it should downgrade me from a PR6.

But it's not just a lack of time. There's a lot of things I want to write about, but for once my pen stalls with concern. Heidi's written recently about law school bloggers worrying about their reputation. My 2L year seems full of things I'm bursting to write about, and yet feel I shouldn't.

Take the whole job interviewing thing. There's a lot I'd love to say about it: the ups, the downs, the whole damn crazy process. For instance, the national guidelines say that 2Ls can only have a certain number of outstanding offers from law firms at any given time, and that means a process of calling up some firms and saying, "I'm sorry. You're a really wonderful firm, and I enjoyed meeting your people, but I think I'm going elsewhere."

Now, it's irrational, but I hate doing this. Sure, it's BIGLAW, and the firms are evil slavemasters that want to take innocent doe-eyed young law-students and break them on the rack of 2400 billable-hour years. Or at least, that's what I tell myself, because generally I'm calling up some kind person who took some of their time to talk to me and express an interest in my life and career. Heck, usually I'm calling a firm that took me to lunch, and I'm quite grateful and can't really repay them. It's like being a very bad boyfriend, and breaking up with a girlfriend who's been really nice to you just because there's a more attractive blond over in the corner of the bar. I feel like a heel. And--stop me if you're surprised here--I've never had to break up with multiple young ladies at the same time before.

See, there's a lot of observations like the above that I'd like to write about, but don't really feel like I should. After all, employers might read this site, and while I wouldn't say anything specific about a firm, I don't know if they know that. I'd hate for someone who'd been quite nice to me to read something like the above--except perhaps less positive, although more useful to future students--and think, "God, I wonder if he was talking about me." And law school is famously unfair in its distribution of goodies: some people might not be rejecting offers. Is it really wise to say the above, and risk offending some friend who might be suffering a different--and less trivial--problem?

Right now, the world's filled with this kind of issue. I'm deeply, deeply loving my project for my clinic, but it's covered by confidentiality and so I can't talk about it. Law review is a lot of work, and there's a lot of things--both good and bad--to say about the process, but it's also a very small world. I'd love to respond to a new criticism of law reviews by Richard Posner, because he's in fine critical form but very unfair. How can I do that without mentioning the guts of my work, my team, my classmates?

And here's the rub. I think it's a lot easier to blog 1L, although the year itself is probably more difficult than this one. As a 1L, you may have a study group, pro-bono work, or an interest in some student organization, but so much of your life exists as a single atom. You study for exams and face your grades as one individual in a class of other floating atoms, never really coalescing into molecules.

This year I belong. I have a clinic group, and within that a clinic partner. I work with a team of editors on a law review, which is like copy-editing on a magazine. You begin to feel some loyalty to your co-workers. One of my classes has eight people: there's nothing I can say about it that isn't a betrayal of confidence.

My archives hold quite a few pieces set to "draft" status, and it's going to remain this way until I can find some means of escaping this trap. I think what I'll end up doing is focusing on the little things, small facets I can show safely.

Take this vignette. The other day my clinic partner and I completed our mock-counseling session. We'd both played to form, and both felt it was something like a train wreck. You could tell I'd come in with a checklist of things that needed to be done, and wasn't going to leave until they were finished. My partner, on the other hand, was gregarious, caring, sensitive--everything I wasn't.

So we're walking to the elevator, filled with post-project adrenaline, and I mumble, "You know, I'm going to just cut it short. I'll quit law school and go become a drill instructor. Go with what I'm good at." Quick as a whip he replies, "Then I guess I'll go teach day school."

I laughed like crazy. (I also asked him if I could write about this.) Okay, out of context it's not so funny, but we'd been studying together the how of being lawyers, as much as what the law is, and I know I wasn't entirely comfortable with what I was seeing. I was tense, shot through with doubt, and critiquing my every move for the last forty-five minutes. And then--BOOM--he spouted a bit of perspective, and it all went away.

I don't know how to connect together disconnected snippets like the above, turn them into something that gives my readers more than a fragmentary idea of what's going on. But that may be the narrative problem I have to solve.

New Abode

I just learned that my webhost has migrated this site to a new set of servers. Some little things here or there may not work so well around this place for the next few weeks. If any of you find something not functioning, please leave a note either on this entry, or by mailing me at blog -at- threeyearsofhell -dot- com.

October 20, 2004

Hope For the World

Ok, so that was the horrible political rant. Before I got back to my work, I started into a great Slashdot interview with Neal Stephenson, in which he mentioned something wonderous: I Love Bees.

Wow.

This will seem curious to some of my readers, but bear with me: it's an "alternate reality" game, if you use Stephenson's nomenclature, but it's really just a sort of participatory storytelling. I've missed this round so it's like picking over the remains of the meal instead of enjoying dessert, but the main idea was this: "players" read chapters of the story, and tried to be at hundreds of pay phones called randomly, where they either got bits of the story early or, in very rare cases, had a chance to change events. It's a bit tough to explain, but Wired covers it nicely.

I'm sorry I missed I Like Bees, apparently publicity for Halo 2: it's a strange wonderful confusing form of storytelling, and I love watching it unfold. I played the first of these, made for Stephen Spielberg's movie AI and now named Beast. For the most part the game was a series of websites in which clues were more or less hidden, but it spanned multiple media. If you saw a poster for the movie, you were probably looking at some hidden clue. Soon a group called Cloudmakers formed, a collective of players researching, discussing, auditing and coming up with the next steps. You can still see some of the strangeness: I remember my friend Martin showing this to me and thinking, "OK, this is something you couldn't do before the internet."

As I said, I'm sorry I missed I Love Bees. Somewhere, in the name of an odd narrative, a team of people are working long hours with curious pseudonyms ("Puppetmaster 2"); other people are scanning what these folks have created, trying to meet some challenge in order learn a bit more of that story, with the tantalizing chance of actually changing it; all of them are laughing or wondering struggling through the strange, mixed-up medium.

Man, I hope they're having fun.

Do You Hear That Sound? That's The Knell of Apathy

I never thought I would say this. Indeed, if you had shown me the words I'm about to write through a time machine when I was idly chatting in July, I'd have laughed in your face. But here's the truth: I am thoroughly, thoroughly burnt out on politics.

Since I was old enough to vote, I've never lived through an election in the United States. In 1992, I had just started my first year of university in England, and 1996 found me returning to Oxford from Osaka. In both cases I voted by absentee ballot. I didn't even vote in 2000: I'd moved so many times I couldn't figure out what state I could vote in. (Before anyone blames me for Bush v. Gore, the only options were Texas and Michigan: I don't think my confusion as to my home state threw the election to Rhenquist and Co.) But I have never had to live through the barrage of news, ads, and ridiculous commentary without the comforting filter of British insouciance. [1]

My god, what I wasn't missing. Look, I'm a Bush voter, and I can't really imagine what could happen at this point to make me move from the Republican Party, so I suppose the election's been done for me for several months. But I'd vote for Kerry if the election could be held tomorrow, just to get the damn thing over with. It's not just that I've already decided. It's that the trivia and the overheated rhetoric is getting to me.

Let's just count the non-sensical things that have absorbed the debate in the last few months. Remember the Swift Boat Vets? With due respect, I don't care if Kerry bribed his senior officers to give him purple hearts as part of his payoff for covering up a heroin ring. The statute of limitations of my attention--and my ability to believe anything can be "proven"--has run. Now otherwise sensible people are asking if Kerry is barred from the presidency by the 14th Amendment.. (Note: link is to Volokh disagreeing with the thesis.)

Ditto for anything to do with Bush skipping out on National Guard service, whether or not the evidence comes from phantasmal and phantasmagoric IBM Selectric Composers. It would be like judging whether a firm should hire me by asking what I was doing back in 1975. Christmas 1975 isn't exactly "seared into my memory," but I'm pretty sure it involved a great deal of chronic irresponsibility (as well as soiled diapers).

But even if those things are fading, the relentless trivia of this election just won't end. Here's Paul Krugman talking, yet again, about that draft that's just around the corner. You know. That old rumor introduced by two threatening bills about which Professor Leiter once said: "the fact that these bills were introduced by Democrats will be hugely advantageous as the Bush Administration has to confront the deteriorating military situation in Iraq and Afghanistan..." Yeah, well, the Bush Administration, or rather, his proxy Republicans in Congress, pushed those bills to the floor a while ago. They passed it by a resounding 402 to 2 vote. Oh hell, I'm sorry, that's what it failed by. Rangel didn't even vote for it, which literally made this an issue not even its father could love.

Then we have the litany of requests for apologies. Cheney curses out a Senator on the floor. Kerry makes hay out of Cheney's lesbian daughter. [2] Now Teresa Heinz-Kerry lets a new one rip from the ketchup-bottle.

You know, I'd give my vote, my pledge of eternal alligiance, perhaps my very soul by contract to the candidate who said, "I'm going to make you this promise at the outset of my campaign. I'm not going to say anything bad about my opponent, who is a fine man. And if one of my supporters does, I'll send away his money. If that supporter happens to be sitting next to me, I promise I'll spit in his face." Now that doesn't count rational statements of policy: both candidates have been accused of saying that if the other is elected, we're more likely to suffer a terrorist attack, and I hope they both believe it. If they don't, they don't think their anti-terrorism policy is substantively better than the other guy's. But stop with the mud.

And finally, I'm just sick of the strident tone. Without any particular focus on any particular blogger, let's look at some of what I've been reading, hearing, and seeing recently:

  • The Guardian's "write a voter in Ohio" campaign and the commentary about it. Yeah, it's a real shock when you spam a bundle of random addresses that you get hatemail back. And note that while the Guardian has published some of the replies they've gotten, they've not posted the letters sent. Sure, they said to be polite, but anyone want to bet on 100% compliance? How many randoms got Gruaniad-style rants?
  • Again, from Professor Heller: I Honestly Think This Is the Scariest Quote I've Ever Read. An unattributed, unnamed source quoted by a hack with an axe to grind? Christ, I've read scarier in reviews of Resident Evil: Apocalypse. Come to think of it, the fact that movie got the green-light is scarier.
  • Or from Carey over at Gondolin: "If George Will is excited, we should be scared." (Also describing the normally-sober Will as "drooling.")
  • Any number of my associates declaring that, "If Bush wins, I may have to leave the country."

Folks, this is ridiculous. Look, there is nothing, and I mean nothing in what's listed above, what's been mentioned in the debates, or what random pundits might be "drooling" over that should inspire fear. Sixty years ago, the architect of modern liberalism was telling us how our greatest fear should be fear itself. In 2004, everywhere I turn someone's telling me that I should be petrified of George W. Bush.

Now I know why some people find Wes Craven scary.

As I mentioned at the beginning of this rant, I did spend most of the Clinton years out of the country. But let me say emphatically: the fear of a draft-dodger winning in 1992 did not drive me away from these shores. Nor does the possibility of a Kerry victory influence my firm decisions, tipping the balance towards London or Tokyo and away from New York. I don't think there's anyone who could get elected in the United States that would make me ashamed of my nation, unless the Democrats nominate Michael Moore in 2008 in a mammoth fit of pique. I've never told anyone that I was anything but American when I was overseas, and don't figure I'll start now.

I can understand that some people think Bush's policies are wrong. I can even go so far as to see how someone could dislike him, distrust him, disagree with him, or even diss him. But this continual litany of fear, this wearing of sackcloth for the sins of Bush II, this near-despair by the Kerryites... was it this miserable at the end of the elections I missed?

[1]: Incidentally, the BBC coverage of Election Night is always, always better than the American version, because they don't take it entirely seriously. First of all, once it's past midnight the coverage is handled by second-string announcers and American commentators who couldn't get onto FOX/MSNBC/CNNHL/WTBS/WKRP. Seeing folks who aren't used to being "crack dream team punditry" handle the tips and turns of the 2000 election was a riot in and of itself. But even better is the BBC's resident Swingometer-in-Chief, Peter Snow, who assaults the viewer with a variety of computer-generated graphics as "visual aids." The 2000 election, for instance, displayed the "Race for the White House," in which two little medallions of the candidates races towards a cartoon White House, propelled by little icons representing electoral votes. Snow also brought out his classic "swingometer," which informed viewers exactly how the House of Representatives would be constituted, how the Senate race was going, and who would be Prime Minister if the Americans ran their election like the good ol' Brits. That this last was completely irrelevant to anything was cheerfully ignored.

[2]: And can we have a moment to look at this one? Various people have justified this by making it an issue of Cheney's "hypocrisy," because he supports a president who objects to homosexual marriage when his own daughter is a homosexual. Don't we have to make two assumptions before we get from Kerry's statement to an accusation of hypocrisy? First we have to suppose that Mary Cheney supports homosexual marriage, an assumption I've yet to see proven. There's significant question as to Dick Cheney's opinion. But even after that, we have to assume that both Mary and Dick Cheney feel so strongly about the issue of homosexual marriage that it overrides all other considerations. What if they don't even consider that the prima inter pares among issues this year? Why is it that if one is homosexual, this has to be the issue you care about?

As charges go, this one just doesn't stick. There's nothing hypocritical about supporting a president who disagrees with you on a policy or two.

October 18, 2004

Poll Watching, Stock Watching

Both Lawrence Lessig and Heidi Bond seem to think that Sinclair Broadcast Group, Inc. (NASDAQ=SBGI) are going to take a hammering due to consumer boycotts. These boycotts arising, of course, because Sinclair has decided to air a special on Kerry's involvement in Vietnam before the election.

I'm skeptical. Lessig notes that SBGI is down 10% since the announcement. This is true enough, but it's also down 50% in the last six months, and the announcement came shortly after an earnings warning. Short-term "shares fell because" analyses are fun games, but I don't give them much credence. Even Lessig notes that, "This drop is no doubt in part a calculation about how Sinclair will fair if the election goes for Kerry." It'll be interesting to watch Sinclair to see how its shares do in relation to the polls: if Kerry tanks, Sinclair may pick back up a few points.

I'm sure I ought to care one way or the other about this: either Sinclair is wickedly using its rights to the broadcast spectrum to manipulate election, and Bush's cronies at the FEC are letting him (Democratic version), or this is all a bundle of hypocrisy being griped at by folks who have no real problem with Farenheit 911 or rankly partisan newscasting using falsified documents (Republican version). [1]

Fortunately, my television reception is lousy, and trying to watch FOX involves fifteen minutes of jiggling antenae. Frankly, I can't imagine a bigger waste of my time than watching this thing, one way or the other. I somehow doubt an anti-Kerry show is going to get huge market share: imagine an hour-long SwiftBoats ad. Nor do I think the boycott's going to make a huge difference. Tempests and teacups...

[1] And before anyone starts pointing out that SBGI is purposefully broadcasting a show and CBS's memorandums thing was a "mistake," just forget it. Those were forgeries that should have been seen through in under a minute by anyone who wanted to look. Sure, you could probably only prove negligence or recklessness in court, but I'm happy to call the "error" intentional. It was dumb enough.

October 16, 2004

Realpolitik Lives

Never let it be said that the editors of the Columbia Political Review's blog suffer from a surplus of idealism. Their spin on the Mary Cheney controversy?

[I] think it's pretty clear that Kerry meant to do what he did for a specific reason, and it wasn't because he was particularly concerned about Mary Cheney. It was a "cheap...political trick," but it's working perfectly. Every time someone complains about Kerry invoking Mary Cheney, everyone is reminded that the Cheneys have a gay daughter. And every time that happens, maybe one less evangelical Christian goes out to vote. Kerry might take a hit on his likeability, but in a very real way, he might also win electoral votes. It might just be a good trade.

Well, at least these guys join me in not having high expectations of principle over political expediency. But they also join the cadre of bloggers I like to chide for poor political haruspicy. (Remember, these are the same guys who predicted that Allawi would be dead by Labor Day and Gordon Brown would be Prime Minister by July 1, 2004.)

I have to wonder where these guys get their view of evangelical Christianity. You know those doctrines that get quoted all the time, things like "hate the sin, love the sinner"? Well, in a very real sense, a great number of evangelicals actually believe them. I know, I know, to enlightened secularists this kind of contradiction seems impossible, but then such contradictions are the very stuff of religion. [1]. In other words, many Christians act out their beliefs in real life, and vote accordingly.

So let's sort out what has to happen on the margin for Mr. Rolfe's gambit here to be a profitable manuever. We can ignore anyone for whom the issue is irrelevant, which means we're balancing essentially two groups. First, there are those who are so reflexively hateful of homosexuality that they are (a) willing to judge a parent for the sins of the child, and (b) believe that the mere existence of homosexual progeny disqualify a politician from office. (Kerry hasn't suggested, after all, that Mary Cheney actually holds substantive opinions contrary to her father's, or even George Bush's. She may, but he's certainly not gone to the length of putting words in her mouth.)

But then there's also the other group of evangelicals: those who will look at Mr. Rolfe's interpretation of Kerry's gambit and say, "Wait a second: even by our own Christian views, there's no good reason not to vote for Bush here. If Kerry is doing this to influence the evangelical vote and get us to stay home, he must be estimating that many of us are so hateful we don't understand our own religious convictions. Well, if I weren't going to the polls for Bush, I am now. And here's an extra $20 to the campaign." For Rolfe's strategy to have any positive effect for Kerry, the first group has to be larger and more influential than the second.

You know how people like to talk about "code words" in the discussion of race, gender and sexuality? Well here's a code word for you: so often when someone on the liberal side of the equation says "evangelical," they're not talking about religion. It's a code word for "hater." And given the number of evangelicals I've been fortunate to know who are anything but haters, I'm never upset when that coded usage comes back to bite the speaker on the ass.

Allawi's still alive. Tony Blair's prime minister. Let's look at evangelical turnout in November, and see if the Columbia Political Review can pull off a hat trick.

[1] See, e.g., G. K. Chesterton, Orthodoxy (Ignatius Press Ed. 1995). For those uneasy about a Christian bias and searching for comparative religion, just about anything Taoist, Buddhist (particularly Zen) or Hinduism might easily suffice as support here.

Google Geek Heaven

So why is it on a day in which I must get everything done as quickly as possible, I find out that Google has just launched its desktop search engine. I've been hoping they'd get this done, so that I could stop using Microsoft's lousy "Find File" feature.

The good news, I suppose, is it will take a couple of hours to index my machine. In the meantime, I can get work done offline. Expect a review of the software shortly.

When you're up to your ass in alligators

I'm swamped. Somehow, I managed to get a preliminary memo for my note done at 4AM yesterday, only a minor 11 hours overdue. (On the other hand, it seems coherent and reasonably well-ordered, in that sentences have subjects and verbs and all: how much more can you expect?)

I promise I'll be back with something insightful once or twice over the weekend, but there's two days of law review work eating that up. (My fault: since my friends were here over the week, I didn't schedule much work on weekdays.) In the meantime, Venturpreneur has reminded me of nifty example of Flash used for good ends: They Rule. Use it to figure out who would make good candidates for the Illuminati, who you want on your board when you start Enron II, or just to play Friendster with rich people.

October 12, 2004

Noteworthy Disasters

I'm afraid that my prior note topic has turned up a bit of a dud, there's a major note milestone on Friday, and I'm a bit frantic trying to get everything together on time. You may not hear a lot from me until the weekend.

I know, I know, I'm letting my readers down. But everyone deserves a day or two off sooner or later, so in the meantime, let me direct you either to other blogs, or to two fine sources of entertainment:


Or, just gaze at the new Dell Axim X50 with new product lust.

October 09, 2004

HELP ME MY FIREND, UGRENT NEED ASSISST

DEAR SIR:

It is with STRICT CONFIDENCE and trust that I wish to contact you seeking for your assistance to help as regards an investment opportunity. I sincerly hope that this letter will not come as a surprise to you, or cause you any embarrassment since we neither knew each other before, nor have had any previous contact or correspondence. I am writing to you because your email address came to me in a dream from ALMIGHTY GOD.

I am the son of PRESIDENT GEORGE BUSH, and fear that my father is soon to be deposed in a palace coup in the Democratic Republic of America. In this regards I am worried that I will soon have to leave the country to a safe haven in Nigeria. At the moment, I currently have $87 Billion US DOLLARS deposited in a safe account under the name of my friend Hal E. Burton. However, with the present dispensation of the current government of the Democratic Republic of America, all monies are attempted to be recovered by the revolutionary administration. On this note I desire an urgent attention to assisst me secure the aforesaid sum in any bank account you may furnish me with.

We would avail ourselves of a TOTAL LOSS OF THE WHOLE SUM depending on your promptness to furnish me with this required information which will enable me facilitate instructions and signal to the security company for expedient transfer of this funds to your account. However, I am sure that they misunderestimate your kindness and sense of justice in this matter.

Please send your address and bank details to me so that we can determine that this is mission accomplished. The next administration will be tireless to recover this sum, and so will we.

Your friend,

GEORGE H. W. BUSH IV

[Ed's note: Yep, this is original, my English friends have descended upon me this weekend, and we put this thing together over coffee.]

October 06, 2004

In Defense of IRAC

My Dear Wormwood:

October is upon us, leaving memories of warm days of summer and forcing our cold-weather clothes out of their hibernation. And all over the country, 1Ls like Will Baude are either writing their first legal memoranda or receiving their first batch of criticism. And with that comes moans of complaint about the tedium of IRAC.

Far be it from me to go against the pack, here, Wormwood, but I'm going to make a guilty admission: the more I've thought about it, the more I'm enamoured of IRAC as a part of legal writing, legal training, and even legal exam writing. Certainly, it doesn't turn out the most elegant prose, the most dramatic language, or the most gripping reading. Done skillfully, however, it turns out prose which is efficient: both quick to write and (just as important) quick to digest.

(For a contrary view, see Heidi Bond's "Why IRAC sucks.")

First, to give a summary of the IRAC format [1]: it stands for Issue, Rule, Analysis, Conclusion. Briefly put, it suggests that every paragraph (and indeed, most structures made up of paragraphs within a memo) should begin by stating the issue and following that with a restatement of the relevant legal rule. Next should come an analysis, and finally a brief conclusion.

One common misperception with regards to IRAC, here quoting Ms. Bond: "IRAC sucks because it makes it seem that I, R, A and C are co-equal in importance, when in actuality, A is the big screaming winner." This equivalence is certainly not the case, and certainly wasn't what we were taught in our legal writing classes. The analysis is the key to success in almost any enterprise centering on... well, analytical reasoning. Nonetheless, the presence of all four parts in uniquely identifiable chunks does have some advantages.

So, dear nephew, in the hopes of convincing you of the benefits of IRAC, let me address one frequent complaint, along with two positive aspects that I feel often get overlooked.

1. IRAC does not have to sound clunky. One common complaint with regards to the IRAC structure is that an IRAC argument will sound stilted: because each paragraph has the same structure, it will read in a manner that's almost machine-produced.

This is simply not so: there is nothing in IRAC that suggest that you cannot alter the order of sentence components, use varied and eloquent active verbs, or even pose the occasional rhetorical question, if such is your wish. What it does say is that the information in a paragraph should come in a certain order unless there is a particularly good reason to deviate from it.

Let's take Ms. Bond's "souffle-grade" example from her anti-IRAC piece:

Jane failed to look both ways before crossing the street, which generally no reasonable person would have done. However, the street was a one-way street; we think you need to look both ways to protect against bidirectional traffic. John's coming the wrong way down a one-way street may have been wholly unexpected. John might argue nonetheless that she should have heard him coming, as he was driving a large noisy tractor, and that reasonable people use senses other than sight to identify potential dangers. However, the proximity to the airport makes it likely that Jane would have ignored loud noises. Jane's probably not negligent here."

This isn't IRAC, even though it is a well-written paragraph. Nonetheless, it can be turned into an IRAC-style without losing a bit of its charm:
The first issue is one of Jane's negligence, which turns on whether she took reasonable care in crossing the street. Reasonable care in such a tort action is normally defined from the standpoint of a "reasonable person" in the actor's position, not the view of the actor herself. On the one hand, John will undoubtedly argue that looking both ways at a street-crossing is only reasonable, and that anyone reasonable would look in the direction of a large, noisy tractor before stepping into traffic. Jane, on the other hand, will point out that most people only look into traffic when crossing a one-way street, and John was coming from the other direction. Furthermore, as the intersection was near the airport, a normal person might very well ignore loud noises. Given that in her specific position a normal person might very well look only one way, she is probably not negligent here.

True, the IRAC entry is 30% larger, but that's not incredibly bad as far as bulk goes. In addition, it provides two further pieces of information: an immediately accessible idea of the standard we'll be using to judge negligence (objective), and a scope of what's under discussion: Jane's negligence.

On the other hand, the paragraph is far from 'formulaic.' The Issue (Jane's negligence) sits in a single sentence with half of the Rule, while the other half is stated in the second sentence. There's no reason for the first sentence to use the word "issue": it might well read, "Jane's negligence will turn on whether she took reasonable care in crossing the street." (On the other hands, if you know your Prof reads papers quickly, a little helpful highlighting may not hurt.) Other paragraphs are likely to divide the parts in other places, employ different sentence structures, or shift otherwise to maintain the reader's interest as much as possible.

2. Almost no one 'reads' legal memoranda. Now, the above is not to suggest that memos, articles, or opinions written in IRAC will be as lovely in style as Baude's beloved Nabokov or gripping as the latest Tom Clancy page-turner. In the hands of a good author, it won't sound terrible, but it probably won't sound brilliant, either. Yet consider this: on most of your legal memoranda, writing as well as Tolstoy sniffing the distilled essence of Faulkner will do you no favors at all. Simply put, the 'plot' you're discussing won't support a blockbuster, which means your prose won't have to either.

In law school, some of your teachers will read every exam, every paper, every essay very carefully, noting the intricacies of arguments and the interweaving of facts. Others, however, are going to scan. And I'm willing to say, dear Wormwood, that this will not be unique in your professional life. Before coming to law school, my website proposals were scanned by clients, my budget proposals were scanned by managers, and my monthly reports were scanned by team leaders. Now that I'm here, I'm sure that professors have scanned my exams and TAs my assignments. When I'm an associate, hurried partners are likely to scan my memos to grab the key points, rather than treat them as artwork. (This is one reason I blog, after all: at least I can get a warm glow out of thinking that someone, somewhere actually reads a piece of my writing.)

And IRAC does make things very easy to scan. Take a look at the two examples above, and then ask yourself the question, "Has the author grasped the legal rule?" The analysis is the same in both: neither in my answer nor Heidi's is the reader examining the subjective viewpoint of the actor. Nevertheless, if you were reading quickly to see if someone had grasped the subjective/objective divide, you're unlikely to skip over the fact in the IRAC piece. It "hits you over the head," a term that Heidi uses derisively, but is in fact very useful. Imagine you were reading, instead of two papers, two hundred, possibly after large quantities of coffee. Which is more likely to impress upon the reader that you know the rule?

This leads to things that look less than ideal in "standard" writing. The text is often a little lengthier. (For this reason, brevity elsewhere is prized.) The document itself is frequently internally redundant. And yet for all that, it's quite useful to its audiences.

This actually goes for many forms of professional writing, not just IRAC'd memos. When I used to write proposals for websites, I knew that my clients were interested primarily in two things that would drive them to sign onto the bottom line: a statement of benefits and an overall cost figure. On the other hand, I needed to make sure that they'd internalized what they needed to provide me in order to meet deadlines, and my team required a fairly detailed idea of what would be coming in the specification. This meant the document was going to be bulky--maybe 20 to 30 pages--but my client was only ever going to read three or four. If you read the document straight through, the continual repetition of key points would get annoying, perhaps even patronizing. Fortunately, no one ever did that--except my team members, who were paid for the work.

In other words, Wormwood, most of IRAC's stylistic virtues actually make the information within easier to digest. Readers know where key features are, because they generally anticipate the document structure. Points you wish emphasized stand out by virtue of being in the 'right' place. And all of this makes the tired, harassed, and hurried reader that much happier that they've not been confronted with War and Peace, or even a stylistically astute but difficult e. e. cummings.

3. IRAC makes writing quite swift. The final virtue, dear Wormwood, of the IRAC method is that it really makes writing memoranda relatively quick, assuming that you've organized your thoughts reasonably well. This is a virtue of any form of 'mechanical' writing, primarily because almost all styles of mechnical writing are designed to do just that.

(Note that here I'm speaking of memoranda more than law exams: on an exam I normally have to 'wing it' more than I might like to. But IRAC truly excels in memo-writing, particularly if like myself you're reasonably lazy, and want to claw back some of your memo-time for sleeping, eating, or blogging.)

My normal habit in writing a memo by IRAC, or at least the discussion section, is to write like a machine. First, I write the first sentence of every paragraph, which should at least encompass the issue I wish to address. If a section covers an issue with three sub-issues, I write four paragraphs with issue sentences, and a fifth with the first sentence of an overall conclusion. Then I go through the document paragraph by paragraph, making the specific case. Finally, I fill in transitions, clean up the grammar, and work on a bit of style. (This, by the way, is common advice, not just my invention.)

While this doesn't work for everyone, I find it significantly cuts down on the rewriting I need to do in second drafts. Paragraphs are rarely out of order, because I've cut through that in the first stage. If an argument is left out, it doesn't mess up paragraph transitions, because they're not written until near the end of the process. And early on I've gotten most of my issue spotting out of the way, because if an argument lacks subsections, it's noticed early on.

Once again, this is a quality of all 'mechanical' or stylized writing, not a feature unique to IRAC. Nonethless, it does make legal writing a bit less time-consuming once you've gotten used to it.

And that 'getting used to it,' dear Wormwood, is the final advantage of IRAC to an education in legal writing: in the course of your career, you're almost certain to be told not only to write an argument, but to write it a certain way. And in a firm, you may very well be told to write a certain way by a partner who controls your next assignment, your bonus, and a great deal of your future. Learning how to adapt your style to what seems to you to be iconoclastic restrictions is a useful skill in itself.

(And remember, those restrictions may have reasons that aren't immediately apparent to you. Remember the proposals I talked about above. When taught how to write one, the standard tech might consider them dull and repetitive, because in his experience they were. But to the client, they were almost all unread, and to myself as project manager, they were redundant to assure client buy-in on key points. Documents live within social and organizational structures, and sometimes those have rules you don't immediately see.)

But please, dear Wormwood, don't take the above as the knell of doom, some proclamation sentencing you to a life of dreary, lifeless text. IRAC is a form, but so are a lot of forms that a good writer learns to live with. Genre is a form: once upon a time I went two weeks recording my life in the style of a hard-boiled noir novel. The villanelle and the sonnet are forms, and though highly restrictive, they produce works of staggering beauty. (Though I promise that whatever other travail you endure, I will not inflict my poetry on you.) Just as these forms are challenging, difficult, or sometimes frustrating, so is the IRAC argument. That doesn't mean you can't enjoy the mastery of it.

[1]: Editor's note: although some of the Letters to Wormwood series will from here on in be aimed at 1Ls or, in the future, 2Ls, I'm still writing it as if "Screwtape" is talking to "Wormwood" before he enters law school. For this reason, the series presupposes what knowledge I had as a JD2B, which is to say nearly none.


Say it ain't so, John...

As I mentioned earlier, I've not watched any debates this year, given that I sincerely doubt they're going to change my vote. Nonetheless, I thought this was some foolish overstatement by enthusiastic conservatives until I read the transcripts at the Committee on Presidential Debates:

KERRY: Well, let me just say quickly that I've had an extraordinary experience of watching up close and personal that transition in Russia, because I was there right after the transformation. And I was probably one of the first senators, along with Senator Bob Smith of New Hampshire, a former senator, go down into the KGB underneath Treblinka Square and see reams of files with names in them.

Erm... Treblinka's not in Russia, so far as I can recall. Decades of bad spy novels impressed upon many an American that the KGB had their headquarters in Lubyanka. Meanwhile, Treblinka was a Nazi death camp.

So when does this one make "Kerryisms," or some similar nonsense? Sure, everyone makes mistakes--I know I hate public speaking--but given how fond people are of quoting Bush's errors, historical or otherwise, one would expect at least some similar treatment.

UPDATE: Heidi and Ambimb point to another error by Cheney in his debate. It seems the Vice-President directed users to Factcheck.com instead of Factcheck.org. Of course, someone has set up the former so that it points towards George Soros' site.

I'll quote Heidi's observation on redirects, and then note one further point:

Now, when you buy a domain name you can choose to link your domain name, the www.name.com thing, to any number, anywhere. You can have four hundred domain names, all linking to the same number. And you don't have to own the computer that responds to that number at all.

This is true. And I think George Soros has been reasonably polite in pointing out on their homepage that anyone coming to their site accidentally is probably looking for Factcheck.org. On the other hand, every time you link to a website, you are almost certainly sending that server information on your referring link, e.g. the link you came from. If the Soros folks wanted to be really nice, they'd just throw a bit of javascript together that would bounce the majority of Factcheck.com users straight to Factcheck.org.

Of course, I doubt anyone in politics today is that nice.

October 04, 2004

Brief Thoughts About Computer Use In Exams

As I've mentioned before, Columbia uses ExamSoft in its in-class exams, in order to make sure that we cunning law students don't cheat by copying all of Glannon into our Civil Procedure Exams. Or something. Anyway, ExamSoft doesn't seem to play well with Macintosh, which proved a pain in the neck for some 1Ls last year. I think CLS was better about instructing student to buy PCs this year, but I'm sure there's some Macintosh irredentists about who come December will be scrambling for a notebook.

In the meantime, I've been given two old notebook computers by fellow students who were pleased that I'd helped them with data recovery. (I may get a third soon.) They're old, they're clunky, and they may not work perfectly, but I've got them. So what I'm doing--probably towards the end of November--is stripping them of all their data, putting a nice fresh copy of a Windows OS on them, and installing nothing but a copy of ExamSoft.

So if you're a Macintoshy 1L looking for a loaner computer come December, I can't promise anything, but it might be worth you tossing me an email as exams approach. I'll let you take the thing home and test it--make sure it stays running, etc.--and you can return it once you're done.

In the meantime, if anyone has any spare (LEGAL) copies of Windows XP that they don't use anymore and wouldn't mind donating to a good cause, send a thought this way. I've got a bundle of old copies of 98SE that I can use--relics of computers long since gone to dust--but I find XP easier to administer, and wouldn't mind upgrading these old clunkers.

Strange Conversations

So I'm chatting with some folks in a bar last Friday, and the conversation turns to video games. And to a man, my compatriots mention that the best feature of Star Wars: Battlefront is that you get to kill Ewoks and Gungans. Me, I've promised myself I'd buy nothing that would burn more of my time than my new copy of Chandler's The Simple Art of Murder.

I think the bit about Battlefront was the single coherent fact I learned over this weekend. Otherwise, I slept a lot and recovered from a very hectic last week. More insightful blogging may follow shortly.


Giving The Devil His Due

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