Seeing how it is

Watching animals, or spending time with small children are two good ways to practice seeing life as it truly is. We tend to overlay the world with our values or hopes, and animals or small children really strip those things right away, if we give them the chance. You can't spend time with either group and stay really sentimental about them, in the goofy card sort of way.

For instance, if you watch swans for a while, the first thing you see is the beautiful, elegant bird smoothly sailing effortlessly across the surface. If you watch long enough, you will not only get the sense of those legs paddling like heck underneath, you will have the unequalled treat of seeing that great bird tipping up to dabble like a duck.

A swan's long neck is not there to be elegant, which is our impression, it's there to reach farther underwater to take advantage of food sources that ducks and geese can't reach. So, we amateur swan watchers are stunned to see the undignified posture as the swan goes bottoms up to dabble, paddling hard to stay tipped up. We are also amazed to find that they are very agressive birds that can easily break a man's arm if they are defending their nest! Or, we are amused to find that the pair called Romeo and Juliet on the Boston Public Gardens ponds turn out to be two females. The wildlife specialists actually knew this for a while, but thought it impolitic to publicize it (it would have been!). But the media got hold of the rumor just in time to publish it around the time of the Goodridge case -- very neat.

So, I try to learn from these events. See the world how it really is.

Happy New Year!

Wow! I only just see how to get back in here to post. My usual blog this method was re-engineered and does not work now. I've been so frustrated for several days. Sorry about the lull. So, Happy New Year! I certainly hope 2006 is a better year for all of us that 2005. What a lousy year in most ways you could count it. Sweetness, light, joy, friendship, learning and growth, prosperity and peace to us all.

Grieving a New Epidemic

Holocaust of a Savage God
Betsy McKenzie Dec. 31, 2005

All those long-lost boys
Who wore their pain
Like trailing clouds
Tinged with blood.
They wandered off
And winked out
Like so many candles
In the first holocaust
Wave; sad little
Obituaries saying only
Closed casket.

Now the remnant
Feel safe, secure.
They have cocktails
to hold off the virus.
Now comes Tina:
Seductive high priestess
of the savage god.
He takes his next
Harvest
When they feel most
Safe.

Insidious, addictive,
Tina takes your
Mind, your money
Your teeth, your house
Your friends, your
Reputation, your job.
And finally, serves you up
To the savage god.

Cry for the waste of it.
We made the god.
We fashioned it from
hate and fear and beatings and law.
It would have no power without us.

Hawk Meditation

Hawk in the bushes

On a cold day recently, I was waiting for the Mattapan Trolley to take me to work. I was just sitting at the stop when I noticed a lot of flutteration in bushes across the tracks. A house across the street always has a bunch of sparrows roosting in the bushes in front. And those bushes now were swaying and flinging back and forth. Something large was in the bushes! And the sparrows were jumping and popping in and out, fussing and cussing whatever it was!

I thought it must be a cat. Then, I saw wings, and thought an ill-advised crow must be crowding in around there. But as I watched, the uproar moved across the front of the house, and finally emerged at the edge of the porch, as a very angry hawk! I have never seen such frustration and injured pride. It must have been a very young hawk to have decided it could climb into those bushes and catch a fat sparrow. Of course, there was no room for it to maneuver, and the sparrows easily evaded the hawk. The hawk sat for a good ten minutes on the porch rail settling its feathers and its pride before it took off to sit in a tree and watch for squirrels.

We all make the mistake of thinking we can get by with short cuts from time to time. It usually ends as it did with that hawk, with frustration and injured pride. It’s a hard lesson to learn, but most of us humans don’t run the risk of starving when we learn it.

Integrating Legal Research Into Legal Life

A fair number of years ago, I attended a terrific program at an AALS (American Association of Law Schools) meeting, with Jill Ramsfield. She was actually speaking on her use of Rhetoric in teaching Legal Writing courses. But her points were so interesting to me, as a teacher of Legal Research! She was putting her course into the context of all of the Humanities, and all of the sweep of cultural history! Wow! Talk about a thought-provoking talk!

I went back after that January meeting and contemplated for a while. My course has been evolving ever since. The first thing that happened was that I changed the very first class. It had been pretty boring, and not very successful. To tell the truth, I had never found that the upper level students I taught had read that first assignment. So changing that first class seemed like a really good idea, anyway.

My class lasts 2 class sessions long. I spend a bit of time at the start going over house-keeping things, going over the syllabus and warning students how much time the class takes. But then, we change the pace and the rest of the first class is given over to role-playing. I get to play the client, and the students, as a class, have to interview me to get the facts for the first assignment. The energy level in the room really rises. I am always amazed at the excellent advice and good comments people pop up with, too. It’s a great way to start off the semester! I have explored getting visitors in to be my client, but it has not worked out yet.

The assignment then, is for the students to come back and fill out a worksheet with brief answers giving citations to the statutes and telling how they found them. I used to ask them to write a letter or memorandum, but the students freaked out over that, so I just cut it way back to filling out a kind of form. I talk with them in the second class after we go over what they found and how they found it. We discuss what they might do with the client and how they might package and deliver the messages. We talk some about marketing themselves to the client. I tell them the ABA Journal and a number of the books we buy, with alumni in mind, suggest how to deal with clients to keep them happy, even how to bill them so that they feel better about paying bills. This is early in the class, and we really don’t revisit it, but I do want them to be aware.

I say in the first and second classes that they are on the way to being lawyers, and they need to start thinking of themselves that way. They need to work on their writing, their speaking and their research skills, with their new profession in mind. They have obligations to their clients in the future, and their new profession, as well. I will do my best for them, and expect them to do their best for me. Mostly, I see them giving their best, bless their hearts! The ones who don’t leave after I give my “lot of work” talk that first class, are there for a reason. I am so lucky!

Short staffing for a while

I'm going to be out of town for the next nine days--at a silent Buddhist retreat, and therefore incommunicado--so I won't be blogging here until I get back. See you soon.

Librarian Mystique, Seriously

Actually, all joking aside, I do believe in a librarian mystique. It is compounded of a subtle mix of dust and powdered paper, ages of scholarship piled on shelves carefully tended and ordered. The earliest librarians were the first among scholars, the ones who knew all the books because they had read all the best editions and set them in order. That was when you could number the books in the world on the fingers of your hand, of course, and scholarship mainly consisted of recognizing the mistakes in hand copying.

Librarianship has changed over the millennia, and faster now than ever. A great deal of the conversation between Jim Milles and me on this blog comes down to a rather stylized and extreme debate over the completeness and speed of the current change. Law and librarianship is at a crossroads. It really has been there my entire career, so it's not really happening at lightning speed, in spite of how desperate I feel, sometimes.

I do feel most strongly that librarians would be doing lawyers and the world a grave disservice to jump into the digital world entirely. Not only for all the practical reasons I give at various points in my blogging, but also because of what libraries and librarians stand for in our shared cultural mindset. More than ever, we need that civilizing, history-keeping, scholar-tending sort of librarian.

Rex Libris, indeed!

The Librarian Mystique

Wow! Let's go for it. I think there is a real librarian mystique, although not everybody gets it. Do you remember that terrific thriller/mystery, The Name of the Rose by Umberto Eco? The librarian, of course, did it! [ooops! forget I said that if you were just gettting ready to read that book -- what are you doing so far behind in your reading, anyway?!] I just loved the librarian's secret potion. I have actually fantasized about creating something like it that would break open from pages as they were torn in books! Would that be great? Poison their little wicked fingers as they tore out the page in the book! OOOH, what a wicked bad librarian I am!

There is a wonderful history of libraries that I recommend. If you will be VERY careful with it and get it back ON TIME [and you better not tear any pages -- remember my secret potion!], I might lend it on ILL! Library, An Unquiet History, by Matthew Battles (Norton, 2003). It is a small, charming book, with illustrations, and wears its erudition gently.

When I was finishing library school, I was inducted into the Library Science honorary society. As a law librarian, I was disappointed that it had a boring Greek letter title. I wished it were more like the Order of the Coif. I wanted to start the Order of the Bun! Yay!

Happy Hanukkah!

This year, Hanukkah lines up so closely with Christmas! Happy Hanukkah for all you friends out there, lighting the mennorah. This very nice drawing of a dreidel, the top with Hebrew letters on it for the children's game played on Hanukkah is courtesy of a very informative website: http://www.rigal.freeserve.co.uk/jewish/chanukah/chanukah.htm which has lots more stuff about many aspects of the celebration. It is a festival of light, which makes sense at this dark time of year. Happy Hanukkah! Be light.

UMass Dartmouth ILL Hoax

Fortunately or unfortunately, The UMass Dartmouth ILL story has definitively turned out to be a hoax: see Daily Kos.

I have to agree with Kos: "The people who I blame for this are the two professors. They should have never gone to the media about this without more thorough questioning of him about the story." This is just the sort of thing that can be used to discredit and dismiss concerns about civil liberties violations. No matter what else has been proven and admitted, the defenders of the war on civil liberties can always point to this one example of overreaction by the Bush Administration's critics.

Merry What?!

I am a Christian, raised in a protestant church, and converted as an adult to Roman Catholicism. As mad as I get at my current church home, I care a great deal about my faith. I am absolutely torn about the celebration of Christmas, and all the stupid culture and political struggle going on over the so-called “war on Christmas.”

On the one hand, I am, and have long been, appalled at how commercial Christmas has become. Yes, I understand that for many merchants, this orgy of sales is their boost out of bankruptcy each year. But, consider how awful to have taken a sacred celebration in any other religious tradition and pasted such an orgy of consumerism onto it! Even the ridiculous, over-the-top decoration of houses kind of gets me. [Note to self – take that anti-depressant pill NOW!]

On the other hand, I really hate the political hay being made out of this “happy holiday” war on Christmas crap. I’m sorry, we live in a multi-cultural society. I do like to wish my Christian friends Merry Christmas, and am delighted when Jewish or Muslim or Buddhist friends wish me a happy Christmas. But if they are uncomfortable, I can certainly see that – geez, our society gets saturated with Christmas stuff this time of year! I think they ought to be allowed to opt out. As I said before, Christianity is not a minority faith in this society. It is more under attack from being exploited for commercialism and power-seeking pastors than from political correctness, in my humble opinion.

So, a mere day early, here comes Santa – you better watch out!
You better not pout!
You better not cry,
I’m telling you why –
Cause this Santa’s riding a big Harley Hog and he’s not takin’ crap offa nobody!
Watch out all you Holy Rollers and Christian Soldiers!
Santa’s not takin’ any prisoners.
He knows who’s been naughty and nice, so watch your backs, dudes.

This Santa was drawn by me, Betsy McKenzie and scanned and fixed up in GIMP (a freeware competitor to Adobe Photoshop) by my wizard son, Joe. Copyright 2005.

No Relief

More gloom and doom from Obsidian Wings:

I have written previously about the case of Abu Bakker Qassim and A'del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that -- oops! -- they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

"The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful."

The second is that there is nothing he can do about it:

"In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer."

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I'll stop for a moment to let that sink in.

Read the whole posting here.

Why people don't like Wikipedia (and blogs)

I almost think I understand this (from Marginal Revolution):

Q: Why are people so uncomfortable with Wikipedia? And Google? And, well, that whole blog thing?

A: Because these systems operate on the alien logic of probabilistic statistics, which sacrifices perfection at the microscale for optimization at the macroscale.

Q: Huh?

A: Exactly. Our brains aren't wired to think in terms of statistics and probability. We want to know whether an encyclopedia entry is right or wrong. We want to know that there's a wise hand (ideally human) guiding Google's results. We want to trust what we read.

When professionals--editors, academics, journalists--are running the show, we at least know that it's someone's job to look out for such things as accuracy. But now we're depending more and more on systems where nobody's in charge; the intelligence is simply emergent. These probabilistic systems aren't perfect, but they are statistically optimized to excel over time and large numbers. They're designed to
scale, and to improve with size. And a little slop at the microscale is the price of such efficiency at the macroscale.

Here is the link, thanks to http://kottke.org.

Friday Cat Blogging

Christopher, Trjegul, and Bygul

Chill Pill

Whoo-ee! I cannot take too much of that Obsidian Wings stuff! I get too upset. I do what I can, but then I have to take a chill pill. Here is Doctor McKenzie's prescription du jour: Visit Wikipedia, (www.wikipedia.org) and search for Patent Nonsense. Scroll down to look under Bad Jokes and Other Deleted Nonsense. This is material that is not real information, but was found humorous and was banished to this wonderful corner of Wikipedia to be kept for that reason. Love it, love it, love it.

Let me recommend to bird lovers the Birdidae guide to that family, full of fake latin names. Or there is information on cow tipping, so full of puns that you just have to laugh. Enjoy! Thank you wikipedians!

The FISA Court Is Upset

From Obsidian Wings:

If any of the judges are talking about disbanding the FISA court in protest, they must be seriously annoyed.

As it happens, though, the article contains an explanation of the government's reasons for bypassing the FISA court (out of order; the following quote appears between the second and third excerpts above):

"One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up.""

Gosh: they needed to have an actual reason to place citizens under surveillance? Talk about onerous requirements! This might be an even more pitiful explanation for not using FISA's emergency provisions than the one offered on Monday by General Michael Hayden, the Principal Deputy Director for National Intelligence:

"GENERAL HAYDEN: FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it."

FISA involves not just actual paperwork but marshaling arguments! What a concept! Still, I suppose I should cut them some slack: after all, it has been obvious for some time that marshaling arguments is something this administration finds difficult. At least now they're admitting it.

New from SSRN

Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law

RICHARD K. SHERWIN
New York Law School - General
NEAL FEIGENSON
Quinnipiac University - Law School
CHRISTINA O. SPIESEL
Yale University - Law School August 30, 2005

NYLS Legal Studies Research Paper No. 05/06-6

Abstract:
Law today has entered the digital age. The way law is practiced - how truth and justice are represented and assessed - is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up.

This article is the first systematic effort to theorize law's transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice in the new environment. The article explores the consequences for legal theory and practice of the shift from an objectivist to a constructivist approach to human knowledge, using an expanded, multidisciplinary understanding of rhetoric to analyze the elusiveness of evidentiary truth and the nature and ethics of persuasion in the digital era.


Keywords: legal studies, public law legal theory, law and technology, legal theory

Working Paper Series

Suggested Citation

Sherwin, Richard K., Feigenson, Neal and Spiesel, Christina O., "Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law" (August 30, 2005). NYLS Legal Studies Research Paper No. 05/06-6 http://ssrn.com/abstract=804424



Social Software, Groups, and Law

MICHAEL J. MADISON
University of Pittsburgh School of Law August 16, 2005

Abstract:
Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, things, and stories.

Keywords: Groups, computer software, salience, innovation, governance, narrative, place, artifacts, STS, cognitive science

Working Paper Series

Suggested Citation

Madison, Michael J., "Social Software, Groups, and Law" (August 16, 2005). http://ssrn.com/abstract=786404

S.O.S.

Of the many blog commentaries I've been reading for the last few days, this one states the situation perhaps most straightforwardly:

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it's limited by the country's laws, but they've got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen--no need for a charge, no need for a trial, no need for access to a lawyer. What if they're found not to be an enemy combatant? We can keep them in prison anyway, and we don't have to tell their families they're alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don't need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes--if the President decides that we need to torture a prisoner for the war effort, it's unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was "unnecessary" but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That's the power they claim. At what point are we going to take that claim seriously?

...

This post is not a prophecy of doom. it is an urgent call for backup. Please. Please. Please. Read about those cases. Then go back and read about the President's claims of unlimited power. Ask yourself if you want to trust that he will only use these extraordinary powers against foreign terrorists, and never against innocents or U.S. citizens. Ask yourself if this sounds like the country where you thought you were born, or the country where you want your children to be born. And most importantly--ask yourself what you are going to do about it.

As far as I'm concerned, writing some overheated blog comments about how the administration are fascists and this is the end of American democracy does NOT cut it. As far as I'm concerned that's actively counterproductive. If you can't think of anything else you could start with writing your Congressman. You could also donate to Human Rights Watch, Amnesty or the ACLU. More than any of those things, though, I would say: start with learning as much as you can about this stuff, and telling other people what's going on. It sounds pathetic, in the face of all this. But speaking from experience, you'd be surprised how far it can take you.

Merry Solstice!

This is the Winter Solstice, the shortest day of the year. A very important time through most of human history, and marked in all kinds of religions. See a fascinating website about solstice at http://www.candlegrove.com/solstice.html .

When we lived in St. Louis, one of the most interesting places we explored was Cahokia Mounds, across the river in southern Illinois. This is one of the few remaining Indian mound sites in the region. The St. Louis area was so full of these mounds at one time that it was nick-named Mound City. But they have been bull-dozed or otherwise leveled and you would never know they had been there. But Cahokia is amazing.

Cahokia seems to have been the center of a mound-building culture that traded as far south as to reach the Aztec culture in what is new Mexico, and so far west as to reach the Pacific coast. The culture died out way before Europeans made it to the continent, and we don't know why that happened. They must have been a very wealthy and powerful people. Nobody knows for certain what the mounds were for. There are, however, remains of a wooden structure that seems to have been like a Woodhenge, marking the movements of the sun at solstice time.

I am pretty sure that there must have been folks out at Cahokia this chilly morning to welcome the sun at what had been Woodhenge or on the top of Monk's Mound, the tallest of the mounds. The image at the top is Monk's Mound, courtesy of http://www.state.il.us/hpa/Mounds.htm, which has a very nice, informative website about Cahokia. It's a great place if you are near enough, I recommend a visit. The interpretive center is very impressive, and the archeological work they have done and are still doing is great. They have wonderful brass doors on the center with bas relief ravens done by an artist, flying above the mounds. They are meaningful birds in the current Native American lore, according to what I was told. I like crows and ravens myself.

The Vegan Threat

More from billmon:

One F.B.I. document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals.

New York Times
F.B.I. Watched Activist Groups, New Files Show
December 20, 2005

They hate us because of our freedom -- our meat-eating, fur-wearing freedom.

"The Access Principle"

Inside Higher Ed has an insightful article today on Open Access, entitled 'The Access Principle.' The article reviews the new book The Access Principle: The Case for Open Access to Research and Scholarship, written by Professor John Willinsky. According to the article, the "book reviews the various models to bring the dissemination of knowledge online and to make it free, and along the way, the book criticizes plenty of publishing practices, copyright interpretations and scholarly traditions." I thought Willinsky's comments about open-access publishing ventures and the tenure system were interesting; how do our schools treat online publications at tenure time? If an article's impact is enhanced by online availability, and most studies indicate that it is, then certainly that will become the medium of choice for scholars.

Democrats say they never approved NSA domestic spying program

Paper Chase reports:

Top Senate Democrats have said that they never approved or were fully briefed on the National Security Agency's post-September 11th domestic surveillance program [JURIST report]. President Bush has vigorously defended the program, which monitors international communications of people in the US with known links to al Qaeda or other terrorist organizations, and in a press conference [transcript] Monday, Bush said that "Leaders in the United States Congress have been briefed more than a dozen times on this program." In a handwritten letter [PDF text] to Vice President Cheney following a Senate Intelligence Committee [official website] briefing in July 2003, vice chairman Jay Rockefeller (D-WV) wrote that he felt "unable to fully evaluate, much less endorse, these activities." Rockefeller wrote that the briefing "exacerbat[ed] my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance." Former Sen. Bob Graham (D-FL), who also sat on the Intelligence Committee, has said he didn't recall briefings on program spying on US residents. Both former Senate Democratic leader Tom Daschle and his successor, Sen. Harry Reid (D-NV), have both said they had been briefed on the NSA program, but that key details about the program's scope were not shared.

I'm just a lowly law librarian, but this doesn't sound right to me. If, as has been alleged, the President broke the law by authorizing wiretaps of US persons without following FISA procedures, would the alleged fact that some members of the Democratic leadership were "briefed" make it legal? Don't they have to, like, pass a law or something?

Federales

From billmon:

The Federales

Q: If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Attorney General Alberto Gonzales
December 19, 2005

GOLD HAT: We are Federales . . . You know, the mounted police.

DOBBS: If you're the police, where are your badges?

GOLD HAT: [puzzled pause] "Badges? We ain't got no badges. We don't need no badges! [angry] I don't have to show you any stinking badges!

Treasure of the Sierra Madre
1948

Envisioning Lawyers

When I was a law student, lo many years ago, I looked for role models. I wanted to see from my professors, what I would looke like as a lawyer. I was totally shocked and taken aback when I, at a more traditional school, discovered that not one of my professors had ever practiced in a real sense, as a lawyer!

I think our students are still hungry for this. They want to know what it is like to be lawyers. They look for role models. If you are at a school, like Suffolk, that hires former practicing lawyers as full time faculty, your students are ahead of the game in this one way. If your school has practitioners as adjunct faculty, you may notice students clustering around those folks like bees around honey. They are so hungry for some image to help them shape themselves into lawyers. Unless they come from a family of lawyers, they NEED role models like these, as much as they need those first year courses.

Law schools have ill served the legal community and our students by clinging to this specious division of the theoretical and the practical. I have been stunned, watching otherwise wonderful and rational law professors, of whom I am very fond, become absolutely defensive over the concept of teaching skills in law school. They are, I suppose, concerned that law schools might devolve into mere technical schools without high theory.

BULLSHIT, if you will excuse my outspokenness. You are protecting your pride of position, but you are not fooling anybody, friends. The rest of the university faculty know that our publications are edited by our own students, not peer-reviewed, no matter how many footnotes we shove in!

Please, stop while there is time. The MacCrate Report long since begged law schools to address the needs of the practitioners. Law students have for years been begging for a taste of reality in their schools. Now, law schools are under threat by online law schools and for-profit law schools. If the ABA ever authorizes an on-line, for-profit law school, which will cherry-pick the favorite lecturers from all law schools nationwide, we will all be left as teaching assistants in bar prep courses. Please, please, move your heads around and move into the 21st century. Let's start talking about what our students need to learn!

Theory vs. Reality of Law

I must admit that Jim set me back when he pointed out that Shape of the Law was treading into Big Idea areas, including theories about What is Law. I practiced for a short while, a long time ago. But I came away with some very strong and visceral impressions about what law was good for and what law was not good for. I also have to admit that I have not read a lot of jurisprudential theory, and have the merest grasp of it. What I can say, doggone it, is that reality on the ground, is what the theorists need to go out and study. I am excited at the rising interest in this type of research in law.

The traditional, two-party winner-take all court case does not serve anybody well in family transactions. I think the legal community has come to that conclusion generally, and is moving to adjust things. Now, there are guardians ad litem for children, doing more or less to safeguard the interests of children when their interests are not truly protected by parents. There are more often ADR options now.

There are other situations where ADR is a better option as well, but over and over, I saw the family law cases as real paradigms where ADR would be a better option. I was practicing just at the beginning of ADR's spread in the middle parts of the country. I am glad to see it thriving. But there are lots more things to think about in terms of how and why law works or does not work in a country or society. Sitting in a courthouse and watching people, talking to court clerks, especially in small towns, is a very good way to find out whether the law seems to people to be working fairly and in line with people's values. This seems to me to be a really good test, and one empiricists might want to think about. If you spend motion day in a small town courthouse and listen to the county clerk, you find out an awful lot.

There is a real gap between theory and law on the ground. Law on the ground is what the average person really experiences, and what shapes their opinion of the justice system. Except for unusual events like the OJ Simpson trial, most people experience the justice system through TV shows, or through their own or relative's or friends' brushes with the legal system. Very few people really read newspapers and think about the legal system as protrayed there. Nowadays few even watch TV news and get a message that way, I suppose. We need to get in touch with Steven Bochco!

Hanging Yuletide Mondegreens

It's time for a change of pace, as Jim says. We're close to the holidays, so I'll contribute a piece about a favorite of mine:


Mondegreens

A Mondegreen is a mis-heard word, usually from a song lyric or a prayer. The name comes from a Scottish folk song, The Bonny Earl of Murray:

Ye Highlands and ye Lawlands,
Oh! Where ha'e ye been:
They ha'e slain the Earl of Murray,
And they laid him on the Green.

The author Sylvia Wright misheard the song as:

Ye Highlands and ye Lawlands,
Oh! Where ha'e ye been:
They ha'e slain the Earl of Murray,
And Lady Mondegreen.

She thought this was a tragic double murder. When she understood her mistake, she named the mistake after the poor Lady. This lovely image of the apocryphal Lady Mondegreen is courtesy of http://www.livejournal.com/userpic/1147592/326021. Little children are a rich source of mondegreens. My daughter always wondered where her God bless shoes were. But anybody can make this kind of mistake, mis-hearing an unfamiliar word in a song or prayer as something more common. Here are some entertaining links for mondegreens:

Christmas carol mondegreens:
http://www.snopes.com/holidays/christmas/humor/mondegreens.asp


Terrific columns on mondegreens from San Francisco columnist Jon Carroll (part of a bigger website with more, too):
http://www.sfgate.com/columnists/carroll/mondegreens.shtml

The Green Knight: And Another Thing...

From the always-brilliant The Green Knight:

And Another Thing...

Pursuant to the post below, in which the American right goes bananas over Canada (again):

A few years ago, if you'd heard somebody say, 'And they're going to cancel Christmas!' you'd know they were making a joke. The canceling Christmas gag was just a silly way of calling somebody a sourpuss. The whole idea is so self-evidently ridiculous that everybody knew it was just hyperbole.

Similarly, the whole idea that Canada could be an enemy to America, let alone a threat, was so obviously ridiculous that Michael Moore made a (rather mediocre) satirical movie about it, Canadian Bacon. It was obviously the sort of scenario that simply could not ever happen, and was therefore a useful gag to illustrate a different point.

The American right these days, though, is asserting that these scenarios -- canceling Christmas, and Canada as enemy -- are true. And apparently some people are buying it. Why? And what for?

I'd guess that there is one basic reason: the right just wants people to be afraid. If you can convince them that all of these self-evidently impossible scenarios are actually true, then you are giving them a portrait of a world that no longer makes any sense. Everything is turned upside-down; everything's out of control. Nothing is more terrifying than that.

Furthermore, in order to really make them afraid, you have to take away their ability to laugh. A sense of humor is a sense of perspective, after all; so if you can take away the sense of humor, then you can take away people's ability to comfort themselves by realizing the difference between what can happen and what cannot. So, you've got to destroy the jokes, replacing them with the sort of dank, bitter fury that alleged 'humorists' on the right peddle.

The right's purchase on the American psyche will wither as people learn to laugh again. And here's my final thought on the matter: a sense of humor is not only a sense of perspective, but an affirmation of life and hope. The morbid love of despair sold by the American right is as far from a real "culture of life" as you can get.

Constitutional evolutionism?

PZ Myers is one of the most outspoken defenders of the science of evolution in the face of the attacks from the intelligent design folks. Now, apparently, ID is being promoted as essential to the the US Constitution. Here is his take:

I'm familiar with the creationist's "argument from personal distaste"—they don't like evolution because it implies that Jesus was half chimpanzee—but here's a new variant. Jason Rosenhouse finds some Schlaflyites who seem to deify the founding fathers:

Evolutionists claim that their battle against creation-science is primarily a “scientific” issue, not a constitutional question. But our treasured U. S. Constitution is written by persons and for persons. If man is an animal, the Constitution was written by animals and for animals. This preposterous conclusion destroys the Constitution. The Aguillard Humanists leave us with no Constitution and no constitutional rights of any kind if they allow us to teach only that man is an animal.

Strange…I think the Constitution is a pretty good document, and it would be a good document if it had been written by a wombat or a rutabaga. It's authority should derive from its propositions and arguments, not from some invisible, unconfirmable, and entirely imaginary property of its authors.

I note that the Constitution also fails to say anything one way or the other about evolution. It's also deficient with regard to basic principles of chemistry and physics.

UPDATE: In a related posting, are pandas the Paris Hiltons of the animal kingdom?

Occupant: 1600 Pennsylvania Ave NW, Washington DC

From The Galloping Beaver:

"Dear Elected One, (Assuming that is how you achieved office)

As I am not a citizen of your country, but an all-the-while interested observer of US politics, I felt it my responsibility to offer some guidance as to your duties and responsibilities. (You seem to be confused). I will attempt to refrain from making subjective observations and instead, try to restrict my guidance to those documents, letters patent, terms of reference and any pertinent paper napkin musings which may clarify your expected performance for the remainder of your appointment.

I know I speak a different dialect of English than you. Please excuse the difference in our education. I tend to place the letter "U" where you think it unnecessary. Ignore it; it is of no particular importance. Likewise, I do understand your use of "y'all" when addressing someone and "all y'all" when addressing a group. But I digress."

Read the whole posting here.

Hey, This Is Better than LibQual!

Imagine if we could use emotion recognition software to test library user satisfaction! Enigma of Mona Lisa Smile Cracked - Computing -: "According to findings published in the New Scientist, a British journal, the exact breakdown of Mona Lisa's emotions, as captured by Leonardo da Vinci, were 83 percent happy, 9 percent disgusted, 6 percent fearful, and 2 percent angry. "

A Patron’s Perspective On Library 2.0 « MaisonBisson.com

From MaisonBisson.com: "A Patron’s Perspective On Library 2.0"

My friend Joe Monninger is perhaps a library’s favorite patron. He’s an avid reader who depends on his public library for books and audiobooks and DVDs, and as a writer and professor he depends on the services of the university library. But he doesn’t work in libraries, and though he listens patiently to my work stories, he doesn’t really care about the politics or internal struggles we face.

That said, I’m reprinting here the full text of his recent column for the Valley News, a paper serving Hanover New Hampshire and other upper Connecticut River valley communities. He’s discussing the challenge we face from the perspective of an interested customer.

Here it is:

Estrella: New Open Standards-based Administrative Law System

From excited utterances:

Recognizing citizens' (including "corporate" citizens) need to know and understand the law, the Leibniz Center for Law will coordinate a new European project, Estrella (European project for Standardized Transparant Representations in order to Extend Legal Accessibility).

The aim of the Estrella project is to develop and validate an open standards-based platform allowing European Commission public administrations to develop and deploy comprehensive legal knowledge management solutions, without becoming dependent on proprietary products of particular vendors.

Under the leadership of Leibniz' computer science and law professor, Radboud G.F. Winkels, Estrella will bring together vendors, academics, consultants and legislators to develop standards and run pilot projects to test them out.

I Think I'm Going to Shut My Piehole for A While

I've been enjoying our ongoing discussion on OOTJ; I hope you have too. But looking back over some of my comments and postings, I feel they may have been overly terse and brusque, so I hope nothing I've written has caused offense.

I've been thinking about your latest posting, and how to respond, or even if I should. The problem with a debate like this is that it can lead both parties to take more extreme positions than they normally would. I'm certainly feeling that tendency in myself. Maybe I should just refrain from responding for the weekend.

It is also striking me that Suffolk and UB are very different schools--well, UB is different, anyway. In the last few weeks we've been bringing in a series of faculty candidates, most of whom are immersed in various kinds of interdisciplinary scholarship, and I've been participating in all of the interviews and job talks. In that context, the traditional, doctrinal view of law expressed in the article you quoted seems really remote from what we're doing here, and from the sort of research and teaching we support.

Take a look at the Call for Participation for the 2006 Law and Society Association conference (a lot of our faculty are very active in LSA, and several have been president of the association):

In the spirit of the Law and Society Association’s long tradition of research into unsettled and unsettling issues, the 2006 meeting’s theme poses many profound questions regarding challenges facing the rule of law early in the twenty-first century. We highlight in particular the following observations and puzzles.

First, as social life around the globe becomes ever more complex, multi-layered, and subject to multiple sources of authoritative ordering, the boundaries among and between different legal or extra-legal forms of governance have become more contested, volatile, and fragile. How are different forms of legal authority established, enforced, contested, and renegotiated? Where does the authority of one legal system or form of governance end and another prevail? Do inherited conceptions of “legal pluralism” suffice to make sense of the negotiated boundaries among legal orders?

Second, the global spread of Western legal norms, and especially those associated with the United States, seems to highlight law’s growing significance in contemporary life at the same time that the proliferation of profoundly different legal orders undermines any common view about the core elements of law itself. Have we come to the end of any coherent singular understanding about what the “rule of law” requires? Do new forms of capitalism, governance, etc. demand new models of law that we do not yet imagine?

Third, in many societies we witness political backlashes and retrenchment against the constraints of law’s rule. Overt attacks on courts, lawyers, legal processes, rights, and rules as well as more subtle departures from principles of law are evident around the world. At the same time, other elements or domains of law – especially the punitive and market-based terms of law – have been advanced with new vigor. How can we make sense of the simultaneous undermining of some forms or aspects of law and the strengthening of others? What is the role of neo-liberalism or resurgent authoritarianism in these processes? How do these changes reflect and express unequal power relations?

Fourth, the preceding questions about the conceptual and political constraints of law suggest yet other more general puzzles about the limitations or endpoints of law’s instrumental capacity to govern. What do legal forms, processes, and practices do well, and what to they accomplish poorly or less well than other forms of governance? What types of control or coordination are most and least effectively advanced through law?

Finally, these previous questions suggest yet another line of inquiry about laws end(s): What are law’s purposes? What normative ends does it serve? Whose ends? To what extent is law merely a means, a set of techniques that serve ends rather than define ends? How are commitments to (or against) law related to organizing logics of capitalism, democracy, authoritarianism, religion, or various versions of justice? By what standards should we assess the workings and impacts of law? Where do or should we stand in scrutinizing how, and for whom, law does or does not matter?

I think the debate you and I are having is about more than how to do or teach legal research: it's about the role of legal education and the nature and function of law--does law even have a "shape"? These are all questions that I think are interesting and important, but I don't feel qualified to debate them as deeply as they deserve. Not at 10:00pm, anyway.

Goodnight for now.

The Shape of the Law

Many long-time practitioners talk about understanding "the shape of the law." See, for example, The Corruption of Legal Research, by Scott P. Stolley in For The Defense, April, 2004, pp. 39 - 51. Stolley is a partner in the Dallas office of Thompson & Knight, LLP, and is writing about young associates who cannot locate cases that he knows are there:

My computer-dependent associate reported that she could not find a case. It seemed obvious to me that some case would support my argument that the plaintiff's lawyer could not succeed with his tactic. So I went to the books, and found a suitable case in about 30 minutes. .... When I showed the case to my associate, she expressed shock: "How did you find that? That's crazy -- to find that one sentence in the sea of cases." You would have thought that I was a sorcerer." (Stolley at p. 40)

Stolley is speaking about two things here. He is complaining that the young associates do not know how to do book research, and depend entirely on computerized research. The other thing he complains of is that because of this, they do not understand that the law has a shape. They lack, in his view, and mine, a sense that the law is a living body formed over generations of give and take. Stolley puts it this way:

They also don't experience the lively banter of lawyers who are hunkered down in the library, quizzing each other as they tease the law out of the books. Perhaps worst of all, they miss the musty smell of history wafting from a 100-year-old West Reporter. Staring at a sterile computer screen, they don 't get a sense of the law's development -- the sense that the law "stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left." Learned Hand quoted [sic] in Frost-Knappman & Shrager, The Quotable Lawyer, at 55 (ref.ed.1998). (Stolley at p. 41)

Anthropologists seem to have no problem thinking about tools shaping the human mind. Why do we in the field of law and librarianship seem so unwilling to think that our tool, the computer might be shaping our minds? And of course, our minds shape the law!

Holiday Gifting Ideas

On a somewhat lighter, holiday-related note: Dave Bertuca and Fred Stoss at the University at Buffalo Libraries have assembled a wonderful list of unique Holiday Gifting Ideas. Surely somebody in your family would love a Headmaster's cape?