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When the Media Quotes Bloggers

Kenneth Anderson asks: "Should a journalist or scholar check with a blogger before quoting a post . . . to see if that is what he or she would say in a considered way, either what he or she would say in a published article or what he or she would say to a journalist in an actual interview?"

Kenneth expresses some concerns with journalists quoting bloggers without contacting them: "[B]log postings generally tend to be much more strongly put than people - I include myself certainly - would say in an actual live or phone interview with a journalist. Presumably this is one reason why they can be an attractive source of material for journalists, besides the ease of searching them out rather than telephoning."

I have had parts of my blog posts quoted in mainstream media articles before without having been contacted. Sometimes I think that it might be better for the reporter to at least call me and let me know what he or she plans to quote and allow me to elaborate or at least discuss the topic. But having been quoted many times by the media based on telephone interviews, I think I'd prefer my blog posts to be quoted. I've had a wide range of experiences being quoted based on interviews, and many a time my quote was more like a translation or approximation of what I said. Sometimes, I couldn't even recognize the quote as having any relationship to anything I said. Reporters take great liberty with quotes. Sometimes this isn't too bad, since the reporters might be able to edit my quote so I express my point in a more concise and punchy way. But other times, my quotes have appeared in an awkward way, with grammatical errors, as completely nonsensical, or even in a way that differs substantially from my actual position.

One of my favorite silly quotes attributed to me is: "Even though its anonymous, it's still ominous.” Did I really say that? I can't recall what article it appeared in, but it's on a website that gathers quotable quotations from people. I have no idea why there's a page for me on this website. I have no idea why it selected the particular quotes it did. The Internet sure is a mysterious place. Anyway, I certainly wouldn't deliberately attempt to create a Johnny Cochran-like rhyme ("If it doesn't fit, you must acquit"). Perhaps I said it, for many of my interviews with journalists last 15-30 minutes, which are then distilled down to just a phrase or snippet. The bottom line is that a quote from an interview is often not a very accurate reflection of what I actually said -- and even if it is what I actually said, it often doesn't reflect how I want my point to come across.

In contrast, every time I've been quoted in a blog post, at least the quote has been verbatim. Reporters don't feel at liberty to edit the quote. And this is why it might be better to be quoted in a blog post. At the very least, these are my own words. Moreover, the fact that I might be quoted in a post helps remind me that every time I blog, I'm writing something accessible to the world. It can be easy to forget that when blogging, but I try to keep my "blogging censor" on full alert at all times (and I hope I succeed most of the time). Indeed, some of my best blogging achievements have been hitting the delete key.

There is one other benefit of being quoted in a blog post rather than a phone interview -- I get a quote in a mainstream newspaper without having to do the interview. Up to 30 minutes of time saved. Something for nothing . . . and nothing's wrong with that.

Posted by Daniel Solove at 03:01 PM | Comments (2) | TrackBack

Creative Crime On Campus

I just discovered a humorous quirk in the way that crime is reported. As I flipped through Drexel's federally mandated disclosure of on-campus crime, I discovered that one category is "Attempted Robbery Strong Arm (hands, feet, etc.)" This led me to wonder whether Drexel is alone in conjuring images of a strong-arm, foot-point robbery. It appears, though, that this is standard terminology. Looking at a crime coding handbook for universities, I confirmed that Drexel had simply appropriated uniform crime reporting terminology.

I'm pleased that Drexel conforms to UCR taxonomies, but I remain flummoxed by the notion of strong arm robbery by foot. Do these thieves wear toe shoes?

It all reminds me a bit of "foot powder for the head."

Posted by Dan_Filler at 12:02 AM | Comments (0) | TrackBack

Note To Budding Scholars: Missteps Can Be Corrected

One of my first anxieties as a new professor was the concern that in my first scholarly venture, I'd make a mistake. I worried that I might take a position I later discovered to be indefensible or just plain wrong. This fear is acute for law profs who enter the academy with only a JD. Unlike folks who spend several years gaining deep subject-area knowledge (typically through a PhD program), and practice writing by preparing papers for class, those of us who teach with only a JD typically learn the art of scholarship publicly: in most cases, our first piece of serious research is published, open for all to see. That's significant exposure for a person still in his or her formative stage of work.

So I was pleased to see Dan Kahan's new paper on SSRN open with a semi-recantation of his decade-old article, What Do Alternative Sanctions Mean, from the University of Chicago Law Review. Of course Kahan nuances the matter (for example, he argues that he was wrong - but not for the reasons articulated by any of his critics). And by placing the claim up front, indeed as the article's hook, his recantation appropriates the status of his first piece, reconfiripositioning this new article as a further nuanced analysis about shame sanctions. (Which is to say, he has displaced the potential shame of recantation with continued renewed ownership of the topic, albeit on slightly altered terms.)

But the relevant aspect of Kahan's new paper is that it should remind junior scholars that errors, misjudgments, or simple changes of heart are OK. We all grow as people, and scholars, and if a decade of reflection sheds new perspectives on an issue, there's no harm. Of course, we should all be so lucky to have our initial effort as widely read and discussed as Kahan's. For most of us, early misstepss will be forgotten before the reprints even arrive. And our efforts to recant will be met with similar uninterest. But if that first amazing piece strikes gold - and turns out to be wronger than white clothes after Labor Day - just remember: you can always reconsider.

Posted by Dan_Filler at 11:41 AM | Comments (4) | TrackBack

Law Student Elections: YouTube Special

About this time of year, law students run for election to student leadership offices. I've seen some really strange, and sometimes funny, election materials, but this video takes the cake:

I'll take nominations for most arresting/funny/bizarre student election campaign slogan in the comment thread.

Posted by hoffman at 03:23 PM | Comments (2) | TrackBack

The Law and Economics of Smoking Bans

The big news out of Philly recently is Mayor Street's decision to begin enforcing the City's smoking ban. But, as commentators have observed, the City isn't putting real resources into enforcement: only two officers will be assigned to the smoking beat, and will not work after business hours. That’s City time, not Bar time. Given the miniscule probability of being caught, the $25 fine seems ludicrously low.

Nevertheless, the City is confident that the ban will have bite. Although anecdotes from Kentucky suggest otherwise, the City argues that:

“The majority of the people will comply,” [interim Health Commissioner Carmen Paris] said. “The majority of the people will put that cigarette away. Those that don’t, then the establishment owner is required to call us and file the complaint.”

Self-policing by bar owners and smokers themselves should be effective, said Joe Minott, the executive director of the Clean Air Council.

“People do it because it’s required by law,” he said. “I suspect that after a settling-in period there’s not going to be a lot of problems.”

The law and economics of the enforcement of regulatory offenses interests me. Traditional analysis would suggest that self-enforcement is unlikely (or discounts the role of social pressure). But I suspect that Philly is onto something. Because of the long, public, debate about the utility of smoking bans, most citizens know about the issue, and probably feel invested in the compromise that finally emerged from the City Council. Unlike, say, a normal low-enforcement regulation (e.g., an EPA rule, or the rule against home poker games), the smoking ban will be pushed along by significant social norms of compliance. Dirty looks, over-loud coughs, muttered comments, and (ultimately) illegal self-help will clear the air.

Theorists of deterrence might consider whether the success of low-enforcement/high-compliance rules provides a model to rescue low compliance rules where social-enforcement is possible (like anti-drug and anti-graffiti criminal codes, and plagarism in school). Maybe we need to sunset the existing criminal code every ten years, and force legislators to re-authorize the law through public debate. That debate, in turn, will increase public buy-in and lower deterrence costs. This analysis (not incidentally) explains the need to publish federal regulations, but also suggests that mere publication isn’t enough: real, political, debate is necessary to ensure that social sanctions help legal rules penetrate and affect their intended audiences.

Posted by hoffman at 10:25 AM | Comments (1) | TrackBack

Anthony Trollope on Lawyer TV Shows

One of the unhappy side effects of a legal education is that it destroys your ability to enjoy lawyer movies and attorney TV shows. After I acquired the vast expertise of a single semester of law school, my wife informed me that I had become absolutely insufferable as a partner for watching “Law & Order” because I kept saying things like “That isn’t really how it works…” And “Law & Order” is actually a pretty accurate lawyer show. (Of course, watching ER with my wife is a pain.) Well, it would seem that legal nitpicking of the portrayal of the law in fiction is not new. I recently found the following complaint written by Anthony Trollope in his novel Phineas Finn (1869):

The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells them – as should be done by a strictly honest fictionist. . . . And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks, -- when the rocks and the shoals have been purposefully arranged to make the taking of a pilot on board necessary? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand, -- not used, however, generally, with much discretion.

It would seem that litigation (notice that there are no TV shows – or Victorian novels – about transactional lawyers) has been “the biting interest” of fiction in “excited days” for some time, and the springes of the law (to use Holmes’ wonderful phrase) have been trapping unwary writers for many years.

Of course it could be worse. I once watched “24” with a friend of mine who works for the CIA. He would constantly be saying things like, “I can’t tell you guys any more, but this part is SO NOT realistic.” In his heart of hearts, however, I know that he wants to be Jack Bower. (He claims to be an accountant for the CIA, but my wife and I are convinced that he is actually a free-lance assassin on the “Company’s” payroll.)

Of course it goes without saying that no matter how often lawyers pick at “Law & Order’s” nits, they all want to be Jack McCoy.

Posted by oman at 11:18 PM | Comments (11) | TrackBack

Hierarchies of Legal Scholarship

J.B. Ruhl recently came out with his hierarchy of legal scholarship, ranking types of articles from 0 to 10. His hierarchy has generated a ton of controversy (see here, here, and here). Here's his ranking:

0 – Blog posts
1 – Publication of what are essentially blog posts with footnotes
2 – Doctrinal review of the state of the law
3 – Doctrinal study of interesting questions of law
4 – Doctrinal synthesis of developments in law
5 – Normative policy analysis of law
6 – Normative policy analysis of law with substantial reform proposals
7 – Legal theory
8 – “Law and” interdisciplinary studies
9 – Empirical study of legal institutions
10 – Empirical study of law’s impact on society

Now, in playful mockery of Ruhl's hierarchy, Eric Muller has created another hierarchy of legal scholarship. A small taste:

2 - Work in my field that totally ought to cite my work but fails to do so
3 - First novels by professors at Yale Law School
4 - Student-written work by me
5 - Work that cites my work

Hat tip: Above the Law

Posted by Daniel Solove at 12:01 AM | Comments (1) | TrackBack

Liberation blogology

Earlier this month, lawprofblogger Doug Berman wrote a post for published an article in the National Law Journal. In it, he argues that blogs set lawyers and law professor free by allowing them to avoid overwrought legalisms in their writing. He argues (warning -- block quote):

Many legal documents and most traditional law review articles can be ponderous, with assertions over-wrought, arguments over-made, principles over-cited and everything over-written. The blog medium fosters and rewards succinct expression. For legal writers and legal readers, it is liberating and refreshing to have thought-provoking ideas about the law expressed in only a few paragraphs or even a few sentences.

I will more fully address the substance of Professor Berman's argument in the 172 painfully footnoted pages of my forthcoming law review article, Bargaining in the Shadow of the Blogosphere, 15 J. L. & Ponder's Assert'ns. 101 (forthcoming 2008). For now, let me just throw out a few half-baked ideas on why Professor Berman's argument, while interesting, may be overstated.

It is absolutely true that there are stuffy lawyers who write with too much legal-ese, and who could use a good editor. It is also absolutely true that there are many samples of bad legal writing which one could locate with a minimum of effort. (No, we won't name any names. We're simply going to take judicial notice of this one.)

However, it is also true that there are many lawyers, and maybe even a few professors, who commit the opposite sin. Yes, I've seen pleadings that were tied up in string cites; I've also seen a few that were positively threadbare.

And, of course, there are people at every stage in between. Some who write beautiful and succint thoughts; some who write longer but also beautiful thoughts; and others (whose thoughts are less beautiful perhaps) who also manage to land somewhere between laconic and verbose.

Professor Berman's optimistic vision -- a vision I would be happy to see come to fruition -- involves verbose lawyers who discover blogging, and thus learn to excise that unnecessary, extra, final . (Without doing violence to the meaning, of course.)

Now -- and since this is a blog post, I'll only make one point here; I'll save any others for future posts -- the potential problem I see is this: Those people most likely to benefit from blogging are also probably those least likely to start blogging. Blogs are typically written by people who already have a gift for terse expression. Eugene Volokh is the author of a popular book on legal writing -- does anyone really think that he has problems with wordiness?

On the other hand, try this mental exercise. Think of the three wordiest lawyers you know. Practitioners, professors, (dare we say?) judges -- whoever. Think of the three people with the most impenetrable writing; think carefully, make sure you've got your candidates.

(Putting me on the list is not allowed, Dave Hoffman!)

So, got them?

Now, if Professor Berman's theory is correct, those three individuals could each benefit greatly from the terse writing environment of blogging. Right?

So ask yourself -- could I ever see these people actually blogging? Because I've got my list -- and I can't. In fact, there is almost no overlap between the people I know who could really use some time in the blogosphere, and the people likely to actually be found here.

I would love it if I could believe in Doug Berman's vision. I would love it if I thought that bad writers would take to the blogosphere in droves and learn to write succintly. Lawyers everywhere would sigh in collective relief; birds and flowers would rejoice at the forests saved.

And it's true that perhaps with sufficient peer pressure and proselytizing -- a big sign reading "don't you want to blog, Professor Winchelhaus?" on every wall -- outliers could be brought aboard. Perhaps judges and professors and law-firm partners could begin to force laggards to take remedial blogging classes.

But absent some serious peer-pressure marketing or actual compulsion, I suspect that the sick just won't go to the hospital. The same bad habits that make bad writers bad to begin with -- wordiness, over-citation, and so on -- seem likely to also keep them from the blogosphere, where they might otherwise pick up some salutory habits.

I'd write more, but I'm now just a few sentences away from (or perhaps a few sentences beyond) the no-longer-pithy threshold. I guess I'd better close this post and go fill in footnote #670 for that damn law review article.

Posted by Kaimipono at 07:41 PM | Comments (0) | TrackBack

Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M'Naughten

In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence - and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?

Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for "pre-emptive abortion" of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues - so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the "inncoent" fetus and the "guilty" murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I'm merely questioning how one can call the killing of the adult any more or less "retributive" than the abortion, if the factor that created culpability - say, a mental illness - existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender's free will.

The obvious retort to all of this is that the criminal law does not allow execution - or even conviction - of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M'Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will - the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably - must not that abortion opponent exclude from execution any person who cannot control his act?

Posted by Dan_Filler at 11:13 AM | Comments (1) | TrackBack

The Digital Person: Now in Paperback

I'm pleased to announce that my book, The Digital Person: Technology and Privacy in the Information Age, is now out in paperback and has a much more affordable price. From the cover blurb:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls "digital dossiers"—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Links to reviews of the book are at The Digital Person website.

Posted by Daniel Solove at 05:29 PM | Comments (0) | TrackBack

KPMG: A Contracts Cornucopia

A few weeks ago, Judge Kaplan of the SDNY denied KPMG’s motion to dismiss the KPMG defendants’ complaint against it for indemnification of the defendants’ legal fees. (See coverage at TaxProf, and for background, my previous post.)

The opinion is really fascinating. Although I disagree with parts of Judge Kaplan’s analysis, I think it will ultimately come to be seen as a paradigmatic modern contract case, and classic casebook fodder.

I’ll assume your background with the underlying facts, and jump right back in where we left off. Why is the opinion worth casebooking?

1. KPMG claimed that the indemnification dispute was arbitrable. Factual disputes abounded (some defendants had distinct contract language, and the firm had apparently done a relatively weak job at capturing “Separated Members” in new arbitration agreements). But “in any case,” Judge Kaplan found the arbitration agreements void as against public policy. This was no surprise, because he wrote just three months ago that “Assuming that . . . KPMG remains insistent upon its alleged arbitration remedy, the questions whether the arbitration clause properly is so construed and, if so, whether it is void as against public policy [as frustrating the court’s decision] will be addressed . . . .”

Now I usually tell my students that arbitration is favored by courts and that public policy arguments are weak ones. Not here. The Court found several factors weighed against the arbitration clauses’ enforceability: (1) the public’s right to a speedy trial; (2) the right to a fair trial, with “counsel of his or her choice” and “the funds lawfully available to each” to effectuate that choice; (3) the fact that if the Court didn’t advance these costs from KPMG, it might have to dismiss the indictment altogether; (4) the public’s burden in paying for these defendants’ defense were they to become indigent (not the Judge’s best argument); and (5) the public determination of an issue intimately connected with a public criminal trial. Judge Kaplan found that the arbitration agreement itself “affords an opportunity for delay, and KPMG obviously has no interest in having the advancement dispute decided quickly.” (Slip. Op. at 32). That “purely private interest” was “decisively outweighed” by the defendants’ constitutional rights and the public interest in avoiding dismissal of the indictment.

This is a very odd holding, on a few levels. Fundamentally, it runs counter to the great weight of authority, which burnishes arbitration as the best way to save judicial resources, a paragon of efficiency. Unlike, say, the now-common claim that arbitration clauses ought not to be enforced when not bargained for, Judge Kaplan’s criticism that arbitration causes delay and is private justice would seem to sweep rather far. (Notwithstanding his disclaimer on p. 39.) It surely is true that KPMG will be incented to delay an arbitration. But, if that were true, why not reform the agreement and require the arbitrators to rule promptly. That would effectuate both parties’ intent (not, as Judge Kaplan states, merely KPMG’s) in securing a private forum for personal disputes of this kind.

2. Judge Kaplan’s alternative footnote argument from his first opinion turned out to the theory of the case here: an implied in fact contract to advance fees. On the motion to dismiss, as Judge Kaplan noted, it would seem to be a tough claim for KPMG to fight, because a contract implied in fact “may result as an inference from the facts and circumstances . . .” (Slip. Op. at 42). KPMG nevertheless claimed that it never intended to provide a contract to its employees. Nuts to them, the Judge responded, following a basic tenet of contract law that I’ll be teaching Wednesday: “the formation of contracts is based on the parties’ objective manifestations of assent, not their uncommunicated subjective views.” (Slip. Op. at 42.) True. But this argument is somewhat in tension with Judge Kaplan’s later argument that the issues here are simple to resolve and will require little discovery. By contrast, I’d imagine that KPMG would want wide ranging discovery focusing on industry practice, and the employees would want to depose HR folks who likely left the firm years ago. Implied in fact contracts, unlike ordinary contracts, are really messy to litigate. Which is why KPMG tried to resort to its merger clause (which I’ll teach in a few weeks – I tell ya, this opinion’s chock full of issues). But the opinion holds that the merger clause didn’t cover the subject of advancement. Which leads to a practice point: draft merger clauses as broadly as possible.

3. KPMG claimed a failure of consideration and mutual assent: but the opinion dismisses the arguments in a footnote, holding that the defendants might have agreed to work in return for the indemnification claims. More evidence, for those who are counting, that consideration rarely matters in real life.

4. There is an Erie issue: the FRCP arguably prohibit the type of speedy civil hearing that Judge Kaplan has determined that the advancement claims merit, but the Rules conflict with state substantive law. The opinion holds that the “rules governing the issues properly considered in determining a claim for advancement of defense costs are matters of substance, not procedure . . .” (Slip. Op. at 62.) I found this discussion confusing, in part because I don’t see how the right to advancement is (in effect) the type protected by specific performance instead of ex post money damages. But I’m not an Erie expert. Is there an Erie expert in the house?

5. The opinion makes fun of the distinction between “published” and “unpublished” district court opinions: "[t]he Court would pass such a contention without comment save for the fact that KPMG’s memorandum cites eight cases that are 'unpublished' in the same sense as well as one that does not appear even in the computer assisted legal research services.” Slip. Op. at 15 n.36. Whoops!

Looking at PACER, it seems as though the case is now on appeal, presumably because denials of agreements to arbitrate are subject to interlocutory review under the FAA. Can it really be that the trip up to the Second Circuit (and possibly beyond) will be shorter than the arbitration process?

Posted by hoffman at 04:20 PM | Comments (2) | TrackBack

Compulsory Education At Age 8

Today I attended an ABA Roundtable session on children at risk. The discussion was led by Karen Mathis, president of the association. One of the most remarkable facts that surfaced during this conversation was that, each year, 3000 kids don't start in the Philadelphia school system until age 8. Apparently only Pennsylvania, and one other state, begin compulsory education at such a late date. As one can imagine, many of these 8 year olds start first grade at a huge disadvantage compared to kids who entered school at age 3 or 4. While these aged youth may be lagging educationally, they're physically out of place as well. Compared to the 5 and 6 year olds, the older children are sometimes massive. And that physical gap explodes around the time these children are in 6th grade (at age 14.) As a result of the behavioral difficulties that follow, many kids in this cohort drop out - at age 16 or 17- while they're still in middle school.

I found this state of affairs both surprising and sad. With all the other challenges we have focusing kids on education, who knew that we were failing at this most fundamental level: the minimum age for compulsory education?

Posted by Dan_Filler at 03:34 PM | Comments (7) | TrackBack

More on the Origins of the Footnote Fetish

A few weeks ago, I blogged on my theory of the legal footnote fetish, arguing that it arose out of the reliance of American lawyers on American editions of English treatises where the most important material was in the footnotes. Today, while doing research on another project, I came across additional evidence in support of my theory. S.M. Phillipps's Treatise on the Law of Evidence was published in England in 1815. (There had been earlier English editions.) A year later, John A. Dunlap published an American edition to the treatise. In his introduction, Dunlap discussed -- of course -- his footnotes:

The design of the editor was, principally, to collect the decisions of the different courts in the United States, connected with the subject of the following work, the undoubted merit of which justly entitles it to a preference to all former treatises on the law of evidence. The exuberance of the subject itself, and a solicitude to insert every thing which could be deemed useful, have swelled the notes greatly beyond what was originally expected and intended: and yet the learned reader will perceive tha they might have been made still more extensive; that much has beeen omitted by design, and much, no doubt, through inadvertence.

My claim is that law review editors inherited from this tradition of Americanizing English treatises the same "solicitude to insert every thing which could be deemed useful" no matter how much it might "swell[] the notes greatly beyond what was originally expected and intended".

Posted by oman at 02:56 PM | Comments (2) | TrackBack

The Declining Value of Elite Universities?

This paper, by Kim, Morse, and Zingales, looks interesting:

We study the location-specific component in research productivity of economics and finance faculty who have ever been affiliated with the top 25 universities in the last three decades. We find that there was a positive effect of being affiliated with an elite university in the 1970s; this effect weakened in the 1980s and disappeared in the 1990s. We decompose this university fixed effect and find that its decline is due to the reduced importance of physical access to productive research colleagues. We also find that salaries increased the most where the estimated externality dropped the most, consistent with the hypothesis that the de-localization of this externality makes it more difficult for universities to appropriate any rent. Our results shed some light on the potential effects of the internet revolution on knowledge-based industries.

Related Links:

Hoffman, Becker, Posner and the Purpose of the University

Posner, Summers' Resignation and Organization Theory

Ribstein, Who owns universities?

Zittrain, Universities as Companies

Posted by hoffman at 10:34 AM | Comments (0) | TrackBack

Should Female Legal Academics Blog?

In Yale Pocket Part, two new essays raise the question of whether women in legal academics should spend time blogging. Only one of the essays discusses this question explicity -- Rosa Brooks in her candid and thoughtful What the Internet Age Means for Female Scholars? However, for women academics deciding whether to blog, I think the other essay, Brian Leiter, Why Blogs are Bad for Legal Scholarship may also be a must read.

In her essay, Brooks describes gendered challenges to academic success. The most salient is the time many women spend engaging in caretaking and housework -- to the detriment of scholarship. The fact that women are often more pressed for time than men might suggest that valuable time should not be spent blogging. (Why am I not finishing the paper I am working on right now instead of musing about blogging!?)

However, Brooks also notes that not only must legal academics write great scholarship, they also have to ensure that their scholarship is read and noticed. Typically, conferences, colloquia, and visiting semesters are the best ways to promote scholarship. More women than men are also hampered here by family obligations or working spouses who are unwilling to uproot themselves for cross-country semesters or years. So, Brooks suggests, the internet provides a convenient way to advance own's ideas and name. Though she observes that blog culture can be hostile to women and overly testosterone driven, Brooks seems cautiously optomistic that the internet and blogging might prove quite useful to women:

I can think of several younger scholars—including some women—whose careers have clearly been helped by blogging and commenting on blogs, activities that have gotten them noticed by people who then go on to read and be impressed by their more “serious” work. It’s too soon to say, but I suspect that the Internet age may gradually help eliminate the practice of making visits a predicate of lateral faculty offers. To the extent that blogging can help people get to know a scholar’s style of thinking, why put everyone to the trouble and expense of term- and year-long visits?

Enter Brian Leiter. Leiter appears hostile to blogs as means for those not already recognized as legal superstars to promote their ideas. He says so quite explicity:

[M]y sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.

It seems therefore, that Leiter (and any who agree with him) will give little credence to ideas posted in the blogosphere unless an already established legal superstar (those with pre-Internet gravitas) provides an introduction or some other sort of cover. Now, I presume Leiter would respond that he is not arguing that an idea or theory is mediocre simply because it is advanced by someone not already known by the heavy weights of the legal academy. However, the challenge for those not already in the club is to find vehicles for their work to be read. Once it is read, hopefully it will be judged on its merits. If Leiter's view is widely shared, blogs will not prove useful alternatives to conferences or visits.

So --for women deciding whether to spend precious time blogging, the big question appears to be whether Leiter's view will prevail.

Posted by Rachel_Godsil at 01:03 PM | Comments (13) | TrackBack

The Strategic Use Of The Death Penalty

A BBC Newshour report, this morning (autdio link) suggests that Indonesia's decision to execute three Christians yesterday, for their role in a 1998 Christian-Muslim conflict, might have been strategic. For example, there are several Muslims on death row for the Bali bombing. And other Muslims are facing trial, and potentially the death penalty, for the same Sulewesian rioting that gave rise to yesterday's executions. The commentators suggested that in order for the Muslim government to execute Muslims, it may have been strategically wise to execute the Christians first.

This may be a cynical use of death, but I wonder whether some states have run similar calculations. African-Americans are disparately represented on American death rows, vis a vis their percentage of the overall population. The race critique of capital punishment has had a fair degree of traction (compared, at least, to many other criticisms.) Do some jurisdictions attempt to protect their capital scheme from such attacks by executing whites at a faster rate than African-Americans, notwithstanding the overall demographic of death row? In Alabama, for example, from 1999-2005, across two gubernatorial administrations, 12 of 17 people executed were white. And from 2002-2005, all eleven people executed were white. This in a state where almost half of death row is populated by African-Americans. I recognize that each case proceeds at its own pace - to some degree - but I'm curious whether the goal of legitimizing capital punishment ever plays into the decisions of which individuals a state seeks to execute first. (And yes, I do think it's worth noting that at this final stage, there might actually be an anti-white bias in imposition of the sanction, notwithstanding my suspicion that - at earlier stages - the bias seems to cut the opposite way.)

This is not an accusation. I don't have any answers. I'm simply curious about the degree to which all decisions about the death penalty - from charging all the way to seeking a warrant - might be driven by the needs of external legitimacy, rather than by broader moral, or narrower individualized, concerns.

Posted by Dan_Filler at 10:15 AM | Comments (2) | TrackBack

In House Counsel And The Selection Of Law Firms

Over at What About Clients, Dan Hull wonders whether an overwhelming portion of large corporation legal work could be handled as well by small boutiques as by the mega firms that typically garner such business. Quoting Paul Clifford, a law firm consultant, he suggests that only 10% of these clients' work qualifies as "bet-the-firm" material - matters that you cannot trust to anyone but the biggest and most sophisticated shop. The rest, he hopes, is up for grabs.

Dan poses the question in terms of quality: can small firms handle sophisticated corporate matters on par with the biggies. The answer is clearly yes. Excluding particular cases - not only bet-the-firm matters, but ones that require serious resources due to size or speed - I imagine that high quality mid-size and boutiques have the capacity to do much work that currently lands in large firms. The question, then, is why the big firms so often get this business. There are lots of reasons, but in many cases they start here: the in-house counsel.

What motivates the work distribution decisions of in-house counsel? They are supposed to maximize the quality of outcomes in cases. And they have to stick to a budget. When a case is really important, fidelity to both the company and their own personal buttocks requires bringing in a top-flight firm. In lesser cases, one might expect counsel to be more cost conscious - and thus more open to smaller firms. But two factors cut the other way. First, if the attorney came from a big firm - as so many in-house counsel do - he or she may have personal connections that bias the decision. These connections aren't just friendly; in some cases an attorney is looking to maintain the option of returning to the private sector. In addition, in certain cases - particularly ones that he or she sees as losers - counsel may be motivated to send the case to a pricier shop simply so that he or she can say "we lost, but it wasn't my fault. I sent it Cravath."

So a small firm looking to lasso corporate business needs competitive pricing. But because the hiring process is driven not only by price and corporate risk, but also by personal concerns of in-house counsel, small firms will always have more difficulty piercing the corporate market. That may not be best for business, but it certainly conforms to human nature.

Posted by Dan_Filler at 11:19 AM | Comments (5) | TrackBack

Mental Illness And The Death Penalty

The ABA's Florida death penalty assessment team, headed up by Chris Slobogin of the University of Florida, has released its report on the state's capital scheme. Unlike the Alabama team, this group did not endorse a moratorium in the state. It did, however, raise a number of concerns including (among others): the large number of exonerations, inadequate compensation for conflict counsel, racial and geographic disparities, and the large number of people with mental disability on death row.

Although we did not address this at length in the Alabama report, my experience suggests that a shocking portion of people on death row have some mental illness. I suspect that many people would be troubled to learn the degree to which death rows warehouse people with mental disabilities. There has been relatively little empirical work on this question, though a recent study prepared by the U.S. Department of Justice, Bureau of Justice Statistics, showed that 55% of male inmates in state prisons, and 44% of men in federal pens, have mental health problems. I feel pretty confident that death row inmates ore no less than typical on this front, and probably disproportionately evidence mental health problems. It is possible that these problems are the product of imprisonment itself - SuperMax prisons, for example, are brutal - but there is certainly research suggesting that most folks on death row have a pre-existing history of either mental illness, mental retardation, or brain injuries.

There are a several issues involved in the execution of people with mental illness. First, there are the moral questions. Is it fair to execute a person who makes decisions under the influence of brain illness or damage? Can such acts, no matter how heinous, ever carry sufficient moral culpability support death? A separate issue, for those who oppose abortion on the grounds of a predictable disability and simultaneously support the death penalty, is whether one can later support execution of a person whose behavior results, at least in part, from a disability that would not have justified abortion. If a person maintains these two positions, is she essentially arguing that the offender is allowed to be born on the chance that the disability will not result in a killing? But what if future research shows that particular disabilities are high predictors of future violence. Would a "death sentence" for the fetus then be justified?

There are also separate issues of the sort previously raised by the Court. Can a mentally ill person really assist counsel? Does execution of mentally ill people serve the purposes of punishment

Then there is the human rights issue. Does allowing execution of mentally ill people undermine our credibility as human rights activists around the world?

Some people will argue that these judgments are properly left to juries as they weigh aggravating and mitigating factors. Perhaps. As long as we have capital punishment, someone will have to make these tough calls at some stage - and I don't have any more faith in judges than twelve citizens. But the only way a jury can make a fair judgment is if the defendant's counsel effectively investigates and presents relevant facts. Sadly, based on recent ABA reports (such as the one from Alabama), too many defense lawyers aren't up to the task. And that makes it awfully hard for juries to do their job properly.

Posted by Dan_Filler at 12:15 AM | Comments (11) | TrackBack

Judge Posner's Not a Suicide Pact

I've just finished reading Judge Richard Posner's new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor -- absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.

Before I began reading Posner's book, I was surprised that some reviewers, such as Dahlia Lithwick, praised the book as measured and balanced:

In his new book, "Not a Suicide Pact: The Constitution in a Time of National Emergency," Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.

I do not share Lithwick's enthusiasm. Posner's book struck me as a very broad defense of the Bush Administration's policies (with a few exceptions) and as advocating a balancing between civil liberties and national security in which national security will nearly always win out. Posner is masterful in his rhetoric, though, and manages to sound judicious and measured even though the implications of what he is arguing often are rather extreme.

Posner begins by arguing for a "living Constitution," which means that the Constitution should not be rigidly interpreted but should evolve with the times. In this respect, he agrees with Justice Brennan and other liberal jurists. Some reviewers, such as Michiko Kakutani of the New York Times attacked Posner's living Constitution argument:

This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. . . .

I agree with Posner on the point about the living Constitution. Posner's point is that like it or not, the Constitution is already a living Constitution: "So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written." (p. 19). The problem with Posner's arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.

Posner argues for judicial restraint because "when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head." (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

Posner argues that the threat of terrorism is very grave: "The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable to what the nation faced at the outset of World War II." (p. 3). Really? As I've argued before, perhaps the dangers of terrorism are being weighed too heavily. Regardless of whether I'm wrong or right, Posner does little to question and analyze the dangers of terrorism, which he largely assumes.

Posner makes a straw man out of civil libertarians, who he claims "are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of the civil liberties that were accepted on the eve of the emergency." (p. 41). Why not take on the more nuanced civil libertarians, who don't have such an absolutist view? Most civil libertarians are not absolutists but are arguing that certain programs that curtail civil liberties do not provide sufficient benefits in addressing the risk of terrorism (which they don't assess at such a grave level as Posner does) to justify the costs. They are just engaging in a different cost-benefit analysis, but Posner seems to paint anybody who doesn't engage in his particular cost-benefit analysis as unpragmatic and absolutist.

Throughout the book, Posner's cost-benefit analysis always seems to favor the curtailment of rights. He does try to moderate his stances by articulating some limits, but these are minimal at best. Thus, he justifies detention of enemy combatants but throws the civil libertarians a bone by arguing that there should be judicial review of detentions. (p. 60-61). But he then says that a "heavy burden" can be placed "on the detainee to prove that he is not a terrorist." (p. 61) .

At one point, Posner takes issue with John Yoo's argument that "Article II of the Constitution authorizes [the President] to conduct war in any manner he sees fit; we are at war with al-Qaeda; therefore it is the sole prerogative of the president to decide what if any rights to accord to persons captured in this war." (p. 67). At least Posner rejects the most extreme arguments, but these are low-hanging fruit. In all other respects, Posner's purportedly more measured approach ultimately justifies nearly every measure the Bush Administration has taken. He just does it in a way that sounds more judicious, but the result is largely the same.

Another limitation Posner advances is that his special departures from rights "are warranted only for terrorism that potentially threatens national security. 'Ecoterrorism' and "animal rights terrorism' do not. These are serious crimes, but they inflict only property damage, usually modest, and are orders of magnitude less menacing that Islamist terrorism." (p. 63). What exactly is "national security"? What is "terrorism"? Posner appears to recognize the fuzziness of these terms when he says that "a biological Unabomber could be a greater menace than al-Qaeda." (p. 63) But he never really provides a convincing clear definition of when his special rules should apply. As a result, he fails to provide an answer to the slippery slope problem -- if we have special rules for terrorism, why not also apply these rules to ordinary murder and other crimes? After all, at least based on past statistics, the chances of being killed via ordinary crime are much higher than being killed from terrorism.

Later on, Posner argues that in cases of "special" national security surveillance, if an intelligence officer "discovers that one of the parties to the communication seems to be planning a murder, though a murder having nothing to do with any terrorist plot" then she should "refrain from notifying the authorities." (p. 98-99). This is because, Posner says, "[t]here is much wild talk in private conversations." (p. 99). Yet "wild talk" could just as readily apply to terrorism as to murder. And in many cases, it would be relatively easy to determine whether the talk were serious planning or just wild talk. Posner then notes: "But if the evidence is of a crime related to national security, then sharing it with law enforcement authorities should be (and is) required." (P. 99). He notes that there may be other exceptions: "Serial killing is not terrorism, but it is such a serious crime that clues to it picked up in national security surveillance should be communicated to law enforcement officials." (p. 99). So the test now becomes what is "serious" crime and what isn't, which makes the standard sufficiently muddy to provide little guidance for when intelligence officers can share their intelligence. And he said earlier that ecoterrorism is a "serious" crime yet not worthy of being subject to the special rules (p. 63), so it remains quite unclear precisely what standard Posner seems to have in mind.

Rarely does Posner spend much time exploring the values of rights. My impression, after reading his book, was that rights for Posner were not that important, a luxury at best. Posner does not analyze the benefits of rights with nearly a fraction of the vigor by which he extols the benefits of national security measures. Thus, he discounts the harms of surveillance by arguing that

All manner of e-mail and other Internet "conversations" are monitored and recorded by employers and vendors. Probably most people would prefer to have their communications monitored by an agency interested only in national security than by their employers. . . . It is easy to exaggerate the private as well as social harm from unobtrusive surveillance." (p.90).

Well, if Posner says so, it must be true. Little attempt is made to try to understand and articulate the harms of surveillance. Posner goes on to justify the NSA surveillance program because "such surveillance might cause our foreign terrorist enemies to abandon or greatly curtail their use of telephone, e-mail, and other means of communicating electronically with people in the United States who may be members of terrorist sleeper cells." (p. 95). As I read through this example and others of Posner's balancing, I kept wondering: If Posner is right that the threat of terrorism is extremely grave, then when would civil liberties ever win out over national security protections?

Posner even goes on to propose more extreme surveillance programs than the Bush Administration is currently engaging in: "I believe that the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment, provided that computers were used to winnow the gathered data, blocking human inspection of intercepted communications that contained no clues to terrorist activity." (p. 99-100). Wow! There really doesn't appear to be much of a limit at all. Terrorism is so grave in Posner's book that nearly any measure to protect against it would be justified. Moreover, how are computers to do this winnowing? Putting aside the issue of what constitutes "terrorism" and perhaps other "serious" crimes, is there really a way to isolate only communications regarding terrorism?

Moreover, in Posner's arguments, as in the arguments of many on the national security side of the balance, there seems to be the view that rights are merely bans and restrictions on surveillance, but this is not how rights currently work. The Fourth Amendment rarely bans surveillance; it requires judicial oversight of such surveillance and it requires that the government make an attempt to justify its measures. So the balance isn't between no surveillance versus surveillance -- it is more accurately stated as measuring the extent to which certain forms of judicial oversight and other procedural requirements reduce the effectiveness of the surveillance. The reduction in effectiveness is what should be weighed against civil liberties, not the full value of the surveillance.

At other points in the book, Posner begs the hard questions. He notes that government agencies frequently overclassify information, creating "a culture of secrecy that inhibits the production and flow of information to which the public should be entitled." (p. 107). He argues that abuses from data mining can be curtailed because of "the growth of a culture of leaking and whistleblowing" which "make American government a fishbowl." (p. 98). But then he argues that we must have stronger laws against leakers and that "government must be able to punish the media when they knowingly publish [classified information]." (p. 106). Posner gives us no idea how all this fits together.

In short, I found the book to be quite frustrating at times. Posner writes clearly and well as always, and he certainly knows how to be engaging and interesting. That's a lot, but it is far from enough.

NOTE: This isn't the first time I've critiqued Posner on these issues. For those interested in reading more of my critiques of Posner, I take on Posner's views on security and legal pragmatism here, his views on Melville's Billy Budd and security here, his views on judicial restraint here, and his call for extensive surveillance here.

Posted by Daniel Solove at 03:22 PM | Comments (8) | TrackBack

A Lateral Hiring Information Market

Eric Muller, at Is That Legal, notes that there are now discussion boards dedicated to (non-law) faculty hiring rumors. This is one example and here is another. Eric suggests that this might be a new niche for blawgers. I'm not sure I'd like this job, but perhaps others feel differently. But why make this part of blogging? Lots of us have spent hours at the AALS conference gabbing about rumored moves. It's time for our home institutions to recognize gossip as part of our "scholarship." One obvious way to spin this straw into gold would be to create, and write about, an information market in law faculty moves. It'll be fun, what with everyone contributing, and some of us earning nice profits. For some industrious academic entrepreneur - no doubt a junior prof stuck at Alaska State or the like - there may be tenure at the end of this rainbow. And better than even odds, a lateral move as well.

Posted by Dan_Filler at 02:42 PM | Comments (1) | TrackBack

Who Cares if John Yoo is a Hypocrite?

Opinio Juris has been discussing whether John Yoo is a hypocrite, based on his criticism of the Clinton administration for violating the rule of law. (Heller: John Yoo's Hypocrisy; Ku: Fair and Unfair Criticisms of John Yoo; Heller: John Yoo's Defense of the NSA Program Part I & Part II). For what it is worth, I think that Heller has the better of the exchange on the merits. But his use of hypocrite as the ultimate pejorative label, as opposed to ideologue, or partisan, or bad lawyer, brought to mind a great exchange from The Diamond Age by Neal Stephenson:

"Mr. Hackworth," Finkle-McGraw said after the pleasantries had petered out, speaking in a new tone of voice, a the-meeting-will- come-to-order sort of voice, "please favour me with your opinion of hypocrisy.

"Excuse me. Hypocrisy, Your Grace?"

"Yes. You know."

"It's a vice, I suppose."

"A little one or a big one? Think carefully-much hinges upon the answer."

"I suppose that depends upon the particular circumstances."

"That will never fail to be a safe answer, Mr. Hackworth," the Equity Lord said reproachfully. Major Napier laughed, somewhat artificially, not knowing what to make of this line of inquiry.

"Recent events in my life have renewed my appreciation for the virtues of doing things safely," Hackworth said. Both of the others chuckled knowingly.

"You know, when I was a young man, hypocrisy was deemed the worst of vices," Finkle-McGraw said. "It was all because of moral relativism. You see, in that sort of a climate, you are not allowed to criticise others-after all, if there is no absolute right and wrong, then what grounds is there for criticism?"

Finkle-McGraw paused, knowing that he had the full attention of his audience, and began to withdraw a calabash pipe and various related supplies and implements from his pockets. As he continued, he charged the calabash with a blend of leather-brown tobacco so redolent that it made Hackworth's mouth water. He was tempted to spoon some of it into his mouth.

"Now, this led to a good deal of general frustration, for people are naturally censorious and love nothing better than to criticise others' shortcomings. And so it was that they seized on hypocrisy and elevated it from a ubiquitous peccadillo into the monarch of all vices. For, you see, even if there is no right and wrong, you can find grounds to criticise another person by contrasting what he has espoused with what he has actually done. In this case, you are not making any judgment whatsoever as to the correctness of his views or the morality of his behaviour-you are merely pointing out that he has said one thing and done another. Virtually all political discourse in the days of my youth was devoted to the ferreting out of hypocrisy.

"You wouldn't believe the things they said about the original Victorians. Calling someone a Victorian in those days was almost like calling them a fascist or a Nazi."

Both Hackworth and Major Napier were dumbfounded. "Your Grace!" Napier exdaimed. "I was naturally aware that their moral stance was radically different from ours- but I am astonished to be informed that they actually condemned the first Victorians."

"Of course they did," Finkle-McGraw said.

"Because the first Victorians were hypocrites," Hackworth said, getting it.

Finkle-McGraw beamed upon Hackworth like a master upon his favored pupil. "As you can see, Major Napier, my estimate of Mr. Hackworth's mental acuity was not ill-founded."

"While I would never have supposed otherwise, Your Grace," Major Napier said, "it is nonetheless gratifying to have seen a demonstration." Napier raised his glass in Hackworth's direction.

"Because they were hypocrites," Finkle-McGraw said, after igniting his calabash and shooting a few tremendous fountains of smoke into the air, "the Victorians were despised in the late twentieth century. Many of the persons who held such opinions were, of course, guilty of the most nefandous conduct themselves, and yet saw no paradox in holding such views because they were not hypocrites themselves-they took no moral stances and lived by none."

"So they were morally superior to the Victorians-" Major Napier said, still a bit snowed under.

"-even though-in fact, because-they had no morals at all." There was a moment of silent, bewildered head-shaking around the copper table.

"We take a somewhat different view of hypocrisy," Finkle-McGraw continued. "In the late-twentieth-century Weltanschauung, a hypocrite was someone who espoused high moral views as part of a planned campaign of deception-he never held these beliefs sincerely and routinely violated them in privacy. Of course, most hypocrites are not like that. Most of the time it's a spirit-is-willing, flesh-is-weak sort of thing."

"That we occasionally violate our own stated moral code," Major Napier said, working it through, "does not imply that we are insincere in espousing that code."

"Of course not," Finkle-McGraw said. "It's perfectly obvious, really. No one ever said that it was easy to hew to a strict code of conduct. Really, the difficulties involved-the missteps we make along the way-are what make it interesting. The internal, and eternal , struggle, between our base impulses and the rigorous demands of our own moral system is quintessentially human. It is how we conduct ourselves in that struggle that determines how we may in time be judged by a higher power." All three men were quiet for a few moments, chewing mouthfuls of beer or smoke, pondering the matter.

"I cannot help but infer," Hackworth finally said, "that the present lesson in comparative ethics-which I thought was nicely articulated and for which I am grateful-must be thought to pertain, in some way, to my situation."

Is this tripe, or worth further discussion?

Posted by hoffman at 12:41 PM | Comments (6) | TrackBack

The Degeneration of Mankind

Today's Washington Post has a collumn in which Robert Samuelson wags his finger at the mass of exhibitionism on the Internet. He writes:

Call it the ExhibitioNet. It turns out that the Internet has unleashed the greatest outburst of mass exhibitionism in human history. Everyone may not be entitled, as Andy Warhol once suggested, to 15 minutes of fame. But everyone is entitled to strive for 15 minutes -- or 30, 90 or much more. We have blogs, "social networking" sites (MySpace.com, Facebook), YouTube and all their rivals. Everything about these sites is a scream for attention. Look at me. Listen to me. Laugh with me -- or at me.

This is no longer fringe behavior.

Indeed! In the past screaming for attention and the insistent "Look at me! Listen to me!" was confined only to the sordid fringes of society. You know, people like Washington Post collumnists and television pundits. People like Mr. Samuelson...

Posted by oman at 10:06 AM | Comments (1) | TrackBack

Praising Allah In The Military

Congress is considering legislation that would allow military chaplains to use sectarian prayers at nondenominational events. Supporters argue that Chaplains should be free to pray as their faith demands. Opponents worry that such prayers (lets be more precise: prayers that invoke the name of Jesus) will have the effect of excluding some in attendance and erode cohesion within the unit. (The Pentagon, which opposes the bill, actually frames it less in terms of marginalized troops, and more in terms of marginalized chaplains, saying “This provision could marginalize chaplains who, in exercising their conscience, generate discomfort at mandatory formations.”)

This proposal is really a one-way ratchet which is likely to create discomfort for various non-Christian soldiers, but which will rarely marginalize Christian soldiers. For example, few Christian soldiers will be troubled by Jewish prayers since they always reference a single God, referred to typically in English as "God." They are sort of like "lesser included" versions of Christian prayers. (It is possible that a rabbi might use a Hebrew term, and this would potentially be alienating...though in my experience, many might simply find it "curious.") Christian prayers which invoke Jesus exclude all Jews and Muslims (and people of many other faiths, not to mention agnostics and atheists) because they involve praying to a person who, in other religions, is explicitly not God. Sooner or later, at a non-denominational event, a Muslim chaplain will praise Allah, an Arabic term for God (and indeed essentially the same singular God as one would find in Christianity and Judaism). But though Allah may reference the same God, the term now carries loads of cultural baggage, such that many may hear that invocation as an explictly anti-American or anti-Christian statement.

If I truly believed that the Representatives supporting this legislation were ready - even eager - to hear chaplains praise Allah at non-religious events, I'd be more sympathetic to their cause. Call me a cynic, but I suspect that they're simply trying to promote Christianity in circumstances where they see little downside. Twenty years from now, if Islam has grown in importance within the military, I suspect that these folks would be the first to argue for non-sectarian prayer. "It's just not fair to our Christian troops", they'd argue.

Posted by Dan_Filler at 11:16 AM | Comments (2) | TrackBack