September 2002 Archives

It's been a busy several days. I spent last week focusing on job hunt related matters. This past weekend was my girlfriend's recital for her master of music degree in cello performance and pedagogy, so there was plenty to do surrounding that, especially since our parents were in town.

So, that's why I've been quiet here.

The job hunt continues.

What Jeff Cooper wrote in this entry is a good expression of how I've been feeling and what I've been thinking about the way the U.S. government has been handling its policy about Iraq lately.

"Ernie the Attorney" posted this quote and asked for comments. Here are my rough attempts at comments.

The quoted sentences are the work of Grant Gilmore, though I can't tell you where he said it, and I have to confess it took a bit of research on my part to track down who wrote it. From what I can tell, Prof. Gilmore was perhaps best known for his work on the Uniform Commercial Code. (A permutation of the syllables of his name yields the name "Gil Grantmore," a nom de plume for usually lighthearted writing by a small cadre of legal academics among whom I count a few friends.) Since I don't have access to more of the source material, I'm going to work on Gilmore's quote as Ernest quoted it, without any additional context.

I don't think that Gilmore's comments are very helpful from a jurisprudential standpoint. Perhaps his statments serve as a lament that people are not very adept at coordinating their social interactions without socially enforceable (and enforced) rules. Perhaps it's a complaint that there are lots of people who are (a) nasty, (b) stupid, and/or (c) careless, and that having these people in society means we need lots of laws. Perhaps it also laments that laws have collateral social costs. I'm not sure that it does much more, though, and I think it is so simplistic as to be misleading.

I find it hard to pigeonhole myself, but I guess one might say that I am generally a philosophical pragmatist; I believe that the good of any jurisprudential analysis lies in its ability coherently to explain what this "law" thing is that we work and live with and to advise us how we might best think about it, live with it, and work with it. I tend toward positivist modes of analysis, but I am not so naive as to think that the realists and crits don't have some good points to make. I think that any explanation of law must be rooted in carefully contemplated observations about the realities of human experience.

Gilmore appears to be saying at least two things at once. Part of the quote has to do with the values of a society being reflected in its laws. "The values of a reasonably just society will reflect themsleves in a reasonably just law. . . . The values of an unjust society will reflect themselves in an unjust law." These statements go to the quality of a society's laws, and are unremarkable. I'll just say that these statements are probably more likely to be true if a society is democratically organized than if it is not. They also fail to account for the rules that themselves establish law and organization. (Consider in this regard H.L.A. Hart, The Concept of Law.)

Gilmore also says, "The better the society, the less law there will be. . . . The worse the society, the more law there will be." These statements directly relate the quantity of law that a society has to the good nature of the society. This is a much more complex question.

Has the good society no use for governance? True, much law exists to counteract things that we affirmatively believe to be evil. If those evils could be removed by the inculcation of social values, or at least by social pressure based on those values rather than on the threat of punishment, then we would have no need for those laws. (One could still make a positivist argument that in that scenario, a different kind of rule of law has been imposed.)

However, even in that scenario we would still have a need for social coordination. One good example of this is the very sort of commercial law in which Gilmore himself specialized. Would we have no use for the UCC in a better society? Yes, a lot of what's in the UCC is there to deal with cheats and scoundrels; but a lot of it also serves to provide formal legal tools for people to transfer property and responsbility and to allocate risk of loss.

In imagining a hypothetical "good" (or at least "better") society, we can imagine away some of the evils; but we cannot imagine away mistakes and accidents. We cannot imagine that all costs are internalized. To hypothesize away all social costs and all risks perhaps does imagine away all need for law. However, that is not an imagined "good" human society, for it has been deprived of all of its humanity.

Gilmore's statements lose sight of the fact that a large amount of law exists to deal with social and technological complexity. I can only imagine that his vision of a good society would be a much simpler one than the one we live in. Or are we to imagine away all economic externalities, all transaction costs, and all failures of judgment? To what end?

Gilmore's comments are tinged with normative content in addition to [attempts at] descriptive content. Without context, I can't read more into the last sentence by Gilmore that Ernest quoted. Perhaps Gilmore is telling us that acts of governing and of enforcing laws themselves impose social costs and are often destructive. Laws restrict freedom of human action. Having to know all the complex laws that apply to a given situation is hard for a lawyer and even harder for the layperson -- at best this results in people anxious about whether they will overstep the bounds of law. A judicial system is expensive to run. "Correctional" systems spew social costs, not least upon their inhabitants. I can't tell if this is what Gilmore means.

If only I had the time, I'd love to take this further and to try to use Gilmore's statements as stepping-stones to describe the sorts of conceptual tools that I think are more useful in jurisprudential thought. For now, though, I have to stop, and I can only say I do not think that the quoted statements by Gilmore are especially helpful contributions to jurisprudence. They don't pay any attention to the wide variety of kinds of rules that we have, nor do they distinguish among the reasons that we have those kinds of rules.

In our world, people misjudge, people make erroneous assumptions, people have widely varying aptitudes, people hurt themselves, and people hurt each other -- intentionally, negligently, and accidentally. All transactions and activities have costs. Often, some of those costs get imposed on people other than the ones directly participating. We can try to imagine societies where this might not be so, but we wouldn't be imagining societies of people, and we wouldn't be making any progress towards addressing the problems that people face.

I refer you to this (free registration required) and then to this.

It probably goes without saying that I agree with Mr. Miller.

From the dawn of "what you see is what you get" (WYSIWYG) personal computer word processing -- which happened when I was about eight -- I've had a bit of a fascination with typefaces and printing. For example, my idea of a "useful and fun" publishing program is Adobe Pagemaker, which I discovered in college. Unfortunately, I can't buy it for myself, since good old Adobe offers it for $500, which might best be described as "stratospheric" pricing compared to what I can afford to pay for, well, anything at the moment.

For nearly as long as I've been producing printed documents myself, which began rather more recently than the WYSIWYG revolution (remember when that was a revolution?), I have disliked the default fonts so often provided on computers. Now, I'm not a user of "fancy fonts." I'm just picky about fonts and layout, and I've never been able to explain just why or how that is. All of my work in college was in Palatino, or occasionally in the Computer Roman default output by the LaTeX typesetting package on UNIX (which, incidentally, is not at all WYSIWYG).

When I got to law school and stepped into what seemed like a land of conformity, I began using what everyone else seemed to expect-- Times New Roman. Well, almost everyone. Some people who miss the old days of documents typed with mechanical typewriters used variations on the Courier font. Slow and deep within me brewed a discontent with Times New Roman that only my loathing for Courier surpassed.

Now comes to the rescue the United States Court of Appeals for the Seventh Circuit. Yes, really. By way of Howard Bashman's "A Concise Guide to Writing Better Appellate Briefs" I discovered Part XXII of the Seventh's Circuit's "Practitioner's Handbook for Appeals," titled "XXII. Requirements and Suggestions for Typography in Briefs and Other Papers." (The latter link is to a PDF, printed separately.) In these six pages lie several useful gems, including my favorite-- admonitions to abandon the use of Times New Roman for legal documents:

The court goes on to describe some good fonts and what to look for in fonts. Like many Seventh Circuit opinions, this six-page document explains the technical details of its topic in an accessible manner. The guide points out how little choices that seemed automatic to the writer of a brief or other document affect the reader. Someone spent some time talking to the court's printer, and it was time well spent. Check it out.

This prompts the question, "where can I find these fonts they're talking about?" Once again I find myself without enough money to indulge. Adobe will happily sell you its rendition of all four forms of New Century Schoolbook for $95.99 US. AGFA Monotype will sell you its version for $79.20. Bitstream offers its variation for $99.00.

Ouch! What's someone like me to do? In my case, I've got a CD-ROM of Corel Office 9 that I bought a few years back that I seem to recall has variants on some of these fonts (by Bitstream, I think) on it. I'm going to see what I can find on there.

I wonder what the Tenth Circuit has to say about this.

The Financial Times is running a short commentary by Harvard economist Jeffrey Frankel on the seeming lack of success that Republican administrations have had in prodding the economy. Frankel suggests that Republican presidents have too easily given in to disparate business interest groups. These interest groups desire economic policies that favor their businesses but disfavor economic growth on the whole -- for example, tariffs in favor of domestic manufacturing sectors and lax enforcement of antitrust competition laws.

Brad DeLong has added his own remarks and quoted the article.

If you're not familiar with this sort of argument, think of it this way. We can raise tariffs on steel. The steel industry in the eastern United States may see somewhat higher revenues. The reason that sector will have higher revenues is that they can raise prices; domestic steel refiners can put higher prices on their goods, pricing up to the after-tariff price of competing imported steel. They might even be able to pull off underpricing the after-tariff price of the competing steel. Still, the market price of steel for purchasers within the United States rises. Therefore, the costs increase for any new construction, heavy machinery, and other domestic manufacturing that require steel. (Meanwhile, costs for comparable manufacturing overseas do not increase.) Also, in certain economic conditions, less steel will be produced, and we end up paying more for less. In any event, the only winners are the domestic steel manufacturers.

Tariffs are wealth transfers to the protected domestic industry. The wealth is transferred both from the targeted foreign industry, who cannot sell as much here, and from the domestic purchasers of the goods, who forego otherwise efficient construction or manufacturing that they might have undertaken, or who undertake it at greater cost.

I'm pretty sure I learned that in introductory microeconomics. I feel like my econ classes were a long time ago, so someone more skilled can tell me if I'm off base here.

I was at a free concert given at the Boulder Public Library tonight. One thing I like about this area is that you can go to something like that and find very skilled professional classical music performers.

There were also readings. The Mayor of Boulder read an email forward that had been attributed to George Carlin. Now anyone who's heard or seen Carlin or a recording of him even once would have known that this was not George Carlin. The Mayor did not know. But he would have known, if he had checked. At least one telltale was that there wasn't a single swear word in it. (Link is to a PDF of F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978).)

Email forwards are still more often false or misattributed than they are correct.

There was something else I was going to write about, something that I think even deserved to be written about, but I forgot about it during the concert.

Okay, so I haven't kept the TV entirely off. Not today. I watched parts of each of the three memorials this morning.

LawMeme reported that The National Journal has an article on the history of the battle -- dare I say war? -- between the technology and media industries on copyright.

The article is pretty well put together, and you can find it here.

Le Monde is currently reporting an article by Mathieu Guével titled "Buffy, Vampires, and War." The article describes a report by the Washington-based Center for Strategic and International Studies that compares the problems challenging strategic decisionmaking in a world of diverse potential threats to the challenges that face Buffy the Vampire Slayer in the soon-to-be-seven-year television series of that name.

The basic idea is that one central characteristic of Buffy is that the enemy emerges with unpredictable forms, characteristics, tactics, motives, strengths, and weaknesses, just as happens with terrorist groups in real life. The protagonists of the show often find that research and past experience only get them part of the way in understanding what they're up against, and sometimes it doesn't get them anywhere.

Okay, I can see the comparison. I'm still amused that the author worked it into a thinktank report.

(Side comment: The PDF of the CSIS report disappointed me. It did not appear to have been carefully proofread at all. I should note that I only read part of it.)

I actually enjoyed reading about "the Topic That Drove Away [AKMA's and David Weinberger's] Readers," referred to here and found in part here. I found it intellectually refreshing. I'm not surprised that they didn't resolve the issue on their visit this past weekend, though!

The big event this week is that it's the week of the anniversary of September 11, 2001. Notice that I said "the week of the anniversary." All the media have already begun their "coverage" of the anniversary, which seems to me to be more of a media event than a moment for us to think of what happened last year, who we are now, and where we're going. My theory is that the networks are hoping people will stay glued to their televisions because they want to recoup the advertising income that they lost last year.

Now, some people have done some very good writing and photographic work about the events of the past year, but for my part, I don't want more than a taste of it. If there's something that is a new way of looking at what has happened and where we are going now, that would be worthwhile. I am skeptical -- from what I have seen so far -- that we can hope for much of that, and I don't want to subject myself to the general coverage in hope of finding something unique and insightful. I don't need help remembering last September. I could recount the moments from when I woke up on September 11th jolted awake by what struck me as a bizarre news report on NPR through the events of the next several days. I do want to pause for a moment or two to think about those who died. I do not want to pause for a week to have the same few moments played over again. Marvin Kitman's Newsday column on the media coverage fit pretty well with what I've been thinking.

I am not criticizing those who want to spend time with what the media have prepared, who find that that is a fitting way to deal with their memories and thoughts about the last year. I am saying only that that way does not fit me.

Okay, here goes.

I've tumbled into the blogosphere recently, as so many people do. I decided I'd write a bit of my own, even if no one else reads it. I'm using Movable Type, for a few reasons:

1. I wanted to have all of the software within my control -- on my computer or on the server within my home directory structure. As far as I could tell without testing it, that ruled out Blogger.
2. I'm unemployed, so I don't have $40 to drop on software. That rules out Radio.
3. I like Perl, though I'm not very adept with it. With MT I don't really have to be. I will go nowhere near ASP.
4. I like to think I know what I'm doing with web design even though in reality I don't. Maybe I'll learn something along the way.

I mused about titles for a while. There are a lot of clever titles out there among "blawgs," and blogs in general, but most phrases that came into my head that I thought fit with my personality were taken. I thought about taking some ideas from my study of philosophy, but I thought that might come off as too high-brow.

The title I've tentatively chosen is from something that the professor who taught my Constitutional Law and Regulated Industries courses said. There's a saying in law school that a lot of us went to law school because we couldn't hack the math and scientific study that it would take to become a medical doctor. (I think that's off the mark, but that's not the point -- the point is that it's a saying that goes around.) My professor jokingly described law school as "math class for poets." Because I heard the quote second-hand, I'm not sure of the context, but I'm pretty sure that he was putting those words in someone else's mouth.

I actually like the phrase because the law requires rigorous reasoned thinking, but it also requires that we struggle with the question of what we intend laws to accomplish. To the extent that we wrestle with this question, we are mucking about in the "poetic" side of law, the real-life impact of the rules we make and apply.

I'll stop now lest I ramble on forever. I'll write more about this theme and more as time goes on.