Forty four years ago C.P. Snow published a book describing a great divide between the sciences and the humanities. See C.P. Snow, The Two Cultures(Cambridge University Press, 1959; reissued, paper, 1993). See also C.P. Snow, The Two Cultures: A Second Look (1963). I wonder if a strong version of this division is now found in the U.S. law school world. Specifically, I wonder: Despite the enormous popularity of "intellectual property" law in the law school world, do computers, computer technology, computer science, and software tools remain, on the whole, an alien beast in the law school world? (Bernard Hibbitts likes to say that law schools are enamored of the law of technology, but not of the technology of law.) Dear Reader, I welcome your thoughts. I particularly welcome the thoughts of those Gentle Readers in Cyberspace who have more than a nodding acquaintance with law schools in these United States.
Sunday, September 28, 2003
John Burns, "There Is Corruption in Our Business," Editor and Publisher (September 15, 2003):
Terror, totalitarian states, and their ways are nothing new to me, but I felt from the start that this was in a category by itself, with the possible exception in the present world of North Korea. I felt that that was the central truth that has to be told about this place. It was also the essential truth that was untold by the vast majority of correspondents here. ......
Now left with the residue of all of this, I would say there are serious lessons to be learned. Editors of great newspapers, and small newspapers, and editors of great television networks should exact from their correspondents the obligation of telling the truth about these places. ...
We now know that this place was a lot more terrible than even people like me had thought. There is such a thing as absolute evil. I think people just simply didn't recognize it. They rationalized it away. I cannot tell you with what fury I listened to people tell me throughout the autumn that I must be on a kamikaze mission. They said it with a great deal of glee, over the years, that this was not a place like the others.
I did a piece on Uday Hussein and his use of the National Olympic Committee headquarters as a torture site. It's not just journalists who turned a blind eye. Juan Antonio Samaranch of the International Olympic Committee could not have been unaware that Western human rights reports for years had been reporting the National Olympic Committee building had been used as a torture center. I went through its file cabinets and got letter after letter from Juan Antonio Samaranch to Uday Saddam Hussein: "The universal spirit of sport," "My esteemed colleague." The world chose in the main to ignore this.
Friday, September 26, 2003
Ashen Justice: Charges Dismissed, Arrest Him!
What's going on here? Kafka? Der Prozess? Ja?
I admit it: I am a johnny-come-lately. But this (see below) is really too much.
Flash!: NYTimes, p. 1 September 26, 2003 (as paraphrased & disbelievingly interpreted by Prof. P. Tillers) :
In the unlikely event that the U.S. Court of Appeals for the Fourth Circuit upholds the federal trial court's apparent ruling that the U.S. government's refusal to allow Moussaoui to interview prosecution witnesses violates M's constitutional rights and that this constitutional violation requires dismissal of the criminal charges against him, my government(!) intends to "move[] Moussaoui to a military tribunal."
Can this be? [Hmm... The newspaper in my hands certainly looks like the New York Times ....]
If the story is true -- and I have my doubts that it is: the story is intrinsically implausible --, but if this unlikely story is true, the only principle I can extract from it is the following: You -- i.e., Mr M and other denizens of this great and grand country, -- y'all have constitutional rights, BUT if we [my government] think it's important enough, we'll imprison you anyway, without regard to any such rights. But we have overstated the point here. (We are a bit excited.) Yes, Mr M, you can have your constitutional rights -- at least in a U.S. District Court, perhaps ["perhaps," we say!] -- BUT, in any event, you can't have those rights in our military tribunals, b'gosh!
By what right does anyone call such a military agency or entity a "tribunal"?
You see, Mr M (my government seems to be saying), we won't be denying you any rights if we send you there, to Guantanamo -- because there, you see, you don't have any rights. [Of course, by the grace of the Supreme Commander, we have chosen to confer certain procedural privileges on unlawful combatants, but only those privileges, of course, that suit Our Glorious Supreme Commander, and only as long it suits us to let them have those freely revocable privileges. {You will recall that the operative language is somewhat like the following, which, as you will see, we have borrowed from health club contracts: "Grantor retains unbridled and absolute discretion to revoke, at any time and without notice and without cause, any of the privileges enumerated herein and nothing said anywhere shall be construed to the contrary."}])
Ach, weh! (Forgive me: I occasionally lapse into New Yorkese.) One of my worst fears has come true. A year or so ago I thought I was being a bit paranoid, a bit overwrought, a bit of a Chicken Little. But no, hindsight suggests that's not the case: I wasn't overly anxious 'tall. For my government really, truly, and actually wants to deny criminal defendants (not to speak of "unlawful combatants" waiting in their legal black holes for "trials" -- "hearings"? "events"? -- in military "tribunals") --, my government wants to deny such targets of its prosecutorial activity the right to prepare their cases and defenses prior to trial.
Need I say this?: A right to a trial without a right to pretrial preparation and meaningful pretrial investigation is a paper right, and such a paper right is not worth whatever paper it's written on. Every trial lawyer who knows anything knows this. (Perhaps the Supreme Court does too. We shall see. But some people will probably spend years in prison -- indeed, they already have -- before the Supreme Court deigns to speak to this issue. [But perhaps I'm being unfair: Surely the Supreme Court will act just as decisively and as quickly as it did during the Vietnam War crisis. So I take it back! Really!])
BTW: The government thought that the normal criminal process was good enough for it and for Mr M -- until, of course, the government found that it couldn't have its way with Mr M.
It is a scandal; it is an outrage.
Immanuel Kant once said that it is better for the world to perish than for one innocent person to suffer unjust punishment. Mr. John Ashcroft has his own moral principle: he apparently believes that it is better for most of the U.S. to suffer great pain than for one guilty terrorist to escape punishment.
What price security? And whose security is being purchased? Apparently Mr. Ashcroft's. Perhaps Pres. Bush's. Anyone else's?
Who but Mr. Ashcroft really believes that pretrial interviews of imprisoned terrorists by counsel for Mr M will severely imperil national security? Well, o.k., o.k., I will grant you that in this grand country of ours -- perhaps particularly in Missouri? -- we can always find some people who will believe any crackpot thesis that you care to name. Furthermore, it is possible that the imprisoned terrorists ["alleged" terrorists?] that Mr M wants to interview --, it is possible that those guys have telepathic powers or electronic transmitters implanted in their shin bones. Or perhaps Mr M, by interviewing them through his craven surrogates, his untrustworthy counsel, -- perhaps Mr M, acting through such devious agents, can manage to supply those imprisoned unlawful combatants with the guts that they need to fend off our government's determined efforts to win their hearts and unlock their mouths: perhaps Mr M, clever fellow that he is, has the magic potion. Who knows? Anything is possible, you know. And we CAN'T TAKE ANY RISKS.)
It's an outrage, I say.
I have an announcement to make: I have made up my mind. Yes, I have. This is my decision: I will not -- I cannot --, I WILL NOT vote for a Presidential candidate who will grant us four more years of Attorney Ashcroft.
Are you listening, President Bush? My message: Because of Mr. Ashcroft, I will vote for ANYONE other than you, Mr. President Bush -- and I will do so despite my intense distaste for some of the Democrats who want to take your place. (It's a shame! [Well, o.k., it's not a great shame: because I admit I would like this country to have a decent health care system. But, still, it's a bit of a shame that Pres. Bush has no chance to capture my vote because he wants to have Attorney Ashcroft be the Guardian of this country's security and liberty. {I think Mr A forgot the 2d part -- the "liberty & rights" stuff.}])Mr A's title, BTW, is not "general" -- as in "General Ashcroft." Mr A -- I am informed -- is an attorney, an attorney general. But he is not a "general." See William Safire, NYTimes, Section 6; p. 20; col. 1 (Late edition, July 20, 2003) (Citing & quoting my Cardozo colleague & office neighbor Prof. Michael Herz). BTW: Did Mr Ashcroft disabuse the interrogators from the media? Did he tell them, "You know, I'm not really a general. I wouldn't want to put on airs or pretend to be what I'm not"? To balance things out, I will not use the word "general" when referring to Mr Ashcroft here. I think "Mister Ashcroft" is sufficiently dignified. [If this displeases him, he is free to call me "mister" rather than "professor."]) As I recall, Mr. Ashcroft's immediate predecessor also seemed to enjoy the title "general." Vanity has no party affiliation.
Tuesday, September 23, 2003
Yesterday, courtesy of MSNBC, I watched oral arguments before the 9th Circuit's en banc panel about the postponement or non-postponement of the California recall vote. I am only a lowly Evidence teacher, but, with the greatest humility and the utmost diffidence, I would like to make a suggestion to the high-minded counsel -- scholastic counsel, practically -- who do reform litigation about matters such as chads, punch card voting machines, and similar matters. I would like to suggest that sometimes you pay a bit more attention to evidence. Now I realize that mundane matters such as evidence are beneath you; I do appreciate that you feel you should be talking about high constitutional principle, and not about uninteresting stuff such as evidence and facts. But, you see -- if I may be so bold -- even in the noblest crusades constitutional crusaders sometimes just have to muss their hands with earthy [i.e., evidentiary] matter. For example, in the proceedings regarding the California recall, you might just want to make sure that the record amply supports -- that the evidentiary record amply supports the reasonable-sounding but potentially a priori proposition that punch card voting machines are more prone to error than are alternative voting systems, such as the electronic ones that are apparently in use in some other parts of California. (I keep thinking of my Mother, who gets flustered by a TV set, not to speak of an electronic voting machine.) I offer my advice with humility and charity. "Charity?," you might say. I would reply: Yes, well, you see, the sentiment of charity arises in my breast because it was extraordinarily painful to watch you struggle to find some way to assert that punch card machines are less accurate than alternative electronic voting methods without, apparently, actually having any good evidence that what you claimed to be true about punch card voting machines (in comparison to alternative voting systems) is actually true. Your strong aversion to evidence is what apparently accounts for your stratagem of emphasizing that some California official or other had concluded that punch card machines are less accurate than available alternatives. Your difficulty -- the source of which you may not yet realize, which is why I go to the trouble of offering my humble opinion here -- the source of your difficulty in the California oral argument before the 9th Circuit panel was reminiscent of the agonies and embarrassment that your fellow crusaders experienced in Florida, in Bush v. Gore, when, in that lowly Florida trial court, it was finally time for the pro-Gore lawyers to put up or shut up -- i.e., to show, with evidence, that some of the things they had been saying about punch card voting and similar matters were actually true -- and what we got instead, after all of the millions of dollars that had been expended on the pro-Gore legal campaign, were [a mere] four or so pro-Gore witnesses, including one expert on statistical aspects of voting systems who was so badly prepared by the pro-Gore lawyers that today he might well wish that he had never met a lawyer. The point I wish to make, my dear legal brothers and sisters, is that even when it comes to high constitutional principle, evidence and facts do matter. You really must learn this lesson. Otherwise I expect to see further legal shipwrecks -- such as the one I witnessed yesterday.
The following snippet of oral argument was reported in Sacher v. United States, 343 U.S. 1 (1950):
Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.
In Sher v. Stoughton, 666 F.2d 791 (2d Cir., 1981), the U.S. Court of Appeals referred to the following statement made in a New York State murder trial:
Defense counsel then moved for the withdrawal of a juror and for a mistrial ....
In United States v. Russel Means, 513 F.2d 1329 (8th Cir., 1975), the court stated (footnote omitted):
In 1815 Justice Story, sitting as a Circuit Justice, in United States v. Coolidge, 25 F. Cas. 622 (No. 14,858) (C.C.D. Mass. 1815), approved the withdrawal of a juror, creating a technical mistrial in a situation where the jury could not agree on a verdict.
From Wood v. Allstate Ins. Co., 1997 U.S. Dist. LEXIS 14663 (E.D. Pa. 1997):
In response, the [federal trial] Court gave Defendant the option of moving for a recess in the trial so that Defendant could depose Mr. Ashby or moving for the withdrawal of a juror, which would result in a mistrial.
Summers v. State, 2003 Md. App. LEXIS 114 (2003):
Not every trivial act on the part of a juror during the course of the trial amounts to such misconduct as requires the withdrawal of a juror and the continuance of the case. A contrary holding would result in a multiplication of mistrials ....
Monday, September 22, 2003
Sam Spade: "Johnny, you can go home once you tell us the truth."
Johnny: "But I've told you the truth. I really have!"Sam Spade: "Now Johnny, we can sit here as long as you like -- we can sit here until hades freezes over. We'll sit here as long as it takes -- we'll just sit here until we get to the bottom of this."
...[long pause]..
Johnny: "O.k. I'll tell you what you want."Sam Spade: "Now, Johnny, that's not the way this game is played. We just want the truth, you know. That's all we're after. Do you understand?"
...[long pause] ...
Johnny: "O.k., o.k. I vote guilty. He's guilty. Now can I go home?"
Jury forewoman: "Good work, Sam. Call the bailiff. Tell him the jury has agreed on its verdict. We can all go home now."
Do you suppose the Alameda County jurors (see first post for 9/21/2003) -- ah yes, I see: there are 12 of them --, do you suppose those jurors have an action for false imprisonment? For intentional infliction of emotional distress? Could they bring a habeas corpus action? In an appropriate case, an action to recover damages for loss of employment? An action for the alienation of the affections of their spouses (if any), children (if any), and friends (if any)? Would they have a good defense -- necessity, for example -- if they simply failed to appear for their next tour of duty? Would a joint juror decision not to appear for further jury duty -- the word "duty" takes on new meaning here -- amount to a conspiracy to obstruct justice?
The situation is rife with possibilities (and immunities and privileges, I suppose)!
New York Times, Week in Review p. 2 (September 21, 2003):
"There's a Reason It's Called Hard Science
"Apparently the life of the typical scientist isn't filled with 'Eureka' moments ... 'There are aspects of science ... that sound at best distateful and at worst unbearable,' William Speed writes [in Popular Science].
"High on the list of most-unpalatable professions ... [is] 'dysentery stool-sample analyzer' .... Most of the other jobs are too disgusting to print here."
Sunday, September 21, 2003
California Will Go to Any Length for (In)Justice
CNN.com/Law Center (September 19, 2003)
Saturday, September 13, 2003
Living on Earth, the public radio program on which announcers discuss, in sonorous voices, matters such as the problem of the overabundance of non-native starlings in the Northwest and the earth-conscious preparations of bee populations for the coming of winter. All is well but all is not well. ("If only we could get those darned starlings to go back home, somewhere in Europe, where they belong! Sigh.... Well, at least the peregrine falcons will prosper. ... [pause] ... Next week, our program on a special kind of vegetarianism: one farmer who decided that he and his family don't need meat or leather.")
Friday, September 12, 2003
Background evidence ...
Consider
... "social background .....
.... evidence."
P.S. The pedant in me thought you might want to know.
P.P.S. Isn't the title of Jayaraman's article delicious?
Monday, September 08, 2003
I am watching a program on the building of the World Trade Center. I look forward to September 11 with dread. (The weather is almost as beautiful now as it was on the original September 11.) I hope that the building of the replacement for the Twin Towers begins next summer. That will be a glorious sight.
Friday, August 29, 2003
Many years ago Holland experienced the famous or infamous Tulip Bubble: tulips suddenly became popular and individual tulips commanded the equivalent of thousands of dollars. So the story goes.
More recently -- in the 1990s -- the stock of dot coms whose only apparent assets were their internet addresses achieved market valuations of billions of dollars.
Now it is the legal world's turn. Not too long ago federal judges, law school administrators, and some other people decided that both students and judges were spending too much of their time each year either applying for or evaluating applications for judicial clerkships. So it was agreed that at certain times of the year there should be a moratorium: applications for clerkships with judges should not be sent, received, or considered at certain times of the year.
A moratorium of this sort is about to run out shortly; a present moratorium expires on September 2.
Guess what. The line is forming. Thousands of applicants and law school placement offices are waiting to mail their applications on September 2.
Not by using the U.S. Postal Service, mind you. No: nothing less than Federal Express will do. And same day delivery.
Some applicants and placement offices are not content with even that. Some applicants, it is said, are planning (with the encouragement of law school placement offices) to hand deliver their applications bright and early on the morning of Tuesday, September 2, 2003.
It doesn't stop there: applicants are also being urged, it is said (by the most reputable {if not sensible} sources) to try to arrange for personal interviews on September 2; viz., to be interviewed by the judges of their choice on September 2.
This just goes to prove that if almost everyone wants something, that something must be worth something? Else why would almost everyone want it?
Question: What is a judicial clerkship worth?
Would you sell your soul for one?
The frenzy is enough to drive me back into the arms of a medieval just price theory: some things, just intrinsically, are not worth a damned lot. (How would you like to spend two years in the law library of some "prestigious" appellate court -- after spending three or so years in the library of some "prestigious" law school? Exciting, eh?)
Well, there's some profit in all of this, yes there is: whether we like it or not, we will all learn something again about the emerging science of ...? Chaos theory? Complexity? But fractal theory? No, that doesn't sound right. It's ... oh, you know ... maybe it's that froth theory stuff, bubbles (literally) and all that. Or? ... Wait a minute, I have to do some internet research.
Pause. ... Time passes .... Diddle, diddle. ...
Hi. I'm back. Here it is (the explanation, the model):
irrational exuberance!
At more length:
Economic reality is rife with nonlinearity, discontinuity, and a variety of phenomena that are not so easily predicted or understood. At the same time the broad coherence of economic systems is more impressive than ever in the face of such phenomena. The order of the economy appears to emerge from the complex interactions that constitute the evolutionary process of the economy.These phenomena have come to be labeled as complexity in economics. Even what seems simple in economics generally arises from behavior not reflecting rational expectations; we live in a world that reflects the enormous variety and diversity of humanity in their knowledge, attitudes, and behaviors, interacting with each other in an enormous range of institutional frameworks. What emerges in the aggregate may have little to do with what happens at the individual level. But this aggregate cannot be simply described by some set of aggregate equations. It emerges out of the soup of the individual and particular with all its multiform interactions and peculiarities.
J. Barkley Rosser, Jr. & Edward Elgar, eds., "Introduction: The Emergence of Complexity in Economics," Complexity in Economics, (2003), Complexity in Economics.
Or perhaps direct analogies to stock market crashes will help explain the judicial clerkship madness? See, e.g., Didier Sornette, Why Stock Markets Crash: Critical Events in Complex Financial Systems (January, 2003).
Coming soon?: "Hey! Clerkships for sale!"
Good Lord.
Monday, August 18, 2003
Dear Gentle Reader,
There are now some lecture notes awaiting your perusal. They are notes, and not a paper. And the notes are disheveled: they sprawl. But there may be tidbits there that interest you. More important, you may be able and willing to give me some advice. In any event, please see Konstanz 2003 International Summer School Lecture Notes (Peter Tillers) on Probability and Uncertainty in Law.
Thursday, August 14, 2003
"'I regret nothing,' [Diana Mosley] told the daily Le Figaro in a 2002 interview, when questioned about her life." Gulf Daily News (14 Aug. 2003).
"[Diana Mosley's] son, Alexander Mosley, said: 'She had many friends and a very active life, especially considering she was 93 when she died.'" The Scotsman (14 Aug. 2003).
"In 1998, with her health failing she moved to Paris, close to her son Alexander and his wife." Mirror.co.uk (14 Aug. 2003).
The New York Sun today reports the death of Diana Mosley, the wife of Sir Oswald Mosley, the hated British fascist. (The Sun reports that Diana Mosley never abjured her admiration of Hitler.)
In 1969 or 1970 I accompanied a person, a newspaper reporter, who interviewed Jessica Mitford in northern California. Jessica Mitford was one of Diana's sisters.
In the summer of 1961, in Columbus, Ohio, I met a tall British youth who called himself Alex Mosley and who claimed he was the son of Oswald Mosley. If the story was true, he was also the son of Diana Mosley. See British Boyhood: Alexander Mosley
It seems that in 1980 there was a publishing company in France called "Alexander Mosley Publications." My cursory internet research suggests the possibility that this publishing company published Diana Oswald's memoirs.
This is all very improbable.
Was the fellow in Columbus an impostor? But why would he have wanted to pretend to have such despicable parents? (The person who called himself "Alex" said that he had to leave Britain because he, "Alex," faced too many difficulties in Britain because his father was a notorious British fascist.)
I learned much from my colleagues at the Konstanz 2003 International Summer School. As I had expected, a law teacher must approach scientists, mathematicians, biologists etc. with humility and respect -- with awe, really -- since scholars in such fields employ a degree of rigor -- I speak here not merely of "formal rigor" --, scholars in the sciences employ a degree of rigor that is rare in the world that law professors inhabit. (This is not to say that law teachers have no interesting tidbits or problems to offer mathematicians, physicists etc.; certain types of problems that routinely arise in legal proceedings only rarely surface in many fields such as physics, biology etc.)
I have much news to report -- but too much to report just here and now. Stay tuned!
I am back from my trip to Germany and Turkey.
America's reputation abroad seems to be at an all time low. But I grow defensive: many Europeans and Turks seem to place an extraordinary low value on human rights.
Reasonable people can differ on whether war against Iraq was justified. But reasonable people cannot differ on mass torture and extermination. I saw little concern in the European media about the widespread use of torture by Saddam Hussein and the estimated extermination of some 200,000 people. (I am not even counting the fatalities in Saddam's various wars; I am speaking only of "jailhouse executions," death by firing squad or worse.)
Perhaps it really is true that "old Europe" is too sophisticated -- too cynical and indifferent -- for its own good a/k/a for the good of humanity?
