January 2007 Archives

Seldom do envelopes marked "Important" actually contain something important. Even less so when they're marked with flashy colors. Even less than that when they sport return addresses in Wilmington, Delaware or Sioux Falls, South Dakota.

You can now also find me occasionally posting at First Movers, one of the weblogs of the Jurisdynamics Network. Thanks to Jim Chen for inviting me to participate.

Here's an interesting idea — a keyboard without letters printed on the keys. The idea is to force the user to look away from the keys and thus memorize their positions, making it possible to type faster.

Well, that's what they say the idea is, but I'd guess that most of the purchasers will be computer users who would take especial pride in the ability to type using a letterless keyboard.

Randall Stross had an article yesterday in the New York Times about the way Apple's digital rights management ("DRM") system locks users in to Apple's products. (Via Slashdot.) In fact, he reports, Apple applies DRM to iTunes files even when the music publishers don't require it to, and some publishers are considering releasing music themselves, without DRM, just to break Apple's position as the middleman and more easily get songs onto iPods. The article also describes how digital rights management systems have evaporated in South Korea.

Meanwhile, David Isenberg and Tom Evslin have criticized Apple's exclusive arrangement with Cingular for the marketing of the iPhone, while Daniel Eran of RoughlyDrafted has tried to explain some of the features of the device that have been targets for criticism or skepticism.

The New York Post reports that according to NALP, 37 percent of associates leave large firms within the first three years and 77 percent leave within the first five years. It's not clear from the article whether those are New York or national figures.

Okay, so it's not a news flash. In fact, it utterly lacks shock value.

According to the article, the reason for this attrition is that associates find they don't like drinking from fire hoses. I find that entirely credible, though it's not the only reason people leave — one of the associates interviewed for the article was leaving his firm to take a position with an investment bank, hardly a line of work known for excellent 'work-life balance.'

Basic economic principles hold that everyone has a point at which he or she will trade off income for the opportunity to do things other than the activity that generates that income. On the margin, the value of the extra money to that person is less than the value of the extra time. Since I don't work at a big NYC firm, I've got no direct personal insight into the associate life there, but based on some accounts I've heard I have a vision of that life that makes choosing another path look very sensible indeed.

The odometer in my 2000 Honda Civic hit 77777 during my trip home today. Unfortunately, money did not come pouring out of the glove box.

Nico Jacobellis (that's a pseudonym, in case you didn't know — so far as I know, the author has never operated a theater) has a post at First Movers titled " Why Legislatures May Fail to Provide for the Rule of Law: A Response to Tamanaha." That post was written partly in response to a blog post by Brian Tamanaha titled "Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)." Nico describes a way of viewing the development of the common law as a "spontaneous order," a "product of human action but not of human design." I haven't yet read the Hayek or Leoni works on which, according to Nico, that view is based. But I was initially taken aback by these statements in Nico's closing paragraph:

Courts can apply law made by the legislature just as they can apply law made as a spontaneous order, but when the law is changed by decree and not through a spontaneous diffuse process we are left with "law" that is not consistent with the Rule of Law. This is because the Rule of Law means law based on settled expectations, not law based on what a majority can shove through the legislature. In this way, Tamanaha's goal of tying modern liberalism (which, of course, requires legislative action) to the Rule of Law fails.

My initial reaction was that reducing the concept of "Rule of Law" to law based on settled expectations was too narrow a treatment of that concept. I still think that may be the case, but before getting to that point it seems worth asking what is meant by the phrase "rule of law."

Why fret over the concept of the "rule of law?" The proponents of concepts of the rule of law have used those concepts, among other purposes, as tests of the legitimacy or binding value of laws or legal systems, and it intertwines with notions and problems of bindingness that occupied the attention of theorists in the 20th Century (and still). So saying that some kind of law or legal process is inconsistent with the rule of law could be a harsh criticism of the kind of law or process in question.

The articulations of the concept of "rule of law" that I'm most familiar with are those reflected in this introductory post on the topic by Larry Solum, particularly that of John Rawls. Those sorts of understandings of the rule of law would appear to assign as much legal value to legislation as to law derived from custom, so long as the legislation is enacted and enforced in certain ways. Nico Jacobellis's description seems to rule that view out and to assert that legislation has, in some meaningful way, less value than law derived from custom and (accurately, one hopes) articulated by judges.

Brian Tamanaha, in his working paper "How an Instrumental View of Law Corrodes the Rule of Law" (SSRN), refers to Rawls's concept of the rule of law as a "formal" understanding of the concept "because it focuses only on the formal characteristics of law rather than on its content" (p. 23). Tamanaha reports that in the past, the view that the common law had more legal value, legitimacy or bindingness than statutes was a lot more common than it is today (pp. 9-12). Tamanaha's paper has a number of interesting things to say about changes in the notion of "rule of law" over time. I haven't finished reading his paper yet (let alone his book on the same topic), so I must defer for a while further discussion of what "rule of law" means to Tamanaha.

More to follow. But first, a question: Could we live in a complex and rapidly changing world while relying entirely on long-standing customs for our laws? As you might have guessed, my hunch is that the answer is "no," in which case, we must consider other criteria of legitimacy and bindingness, dispose of the notion that "the rule of law" encompasses or comprises part of those criteria, or reject entirely that there are such criteria.

I'm not very fond of New Year's resolutions. On one hand, I don't see a reason to wait until the new year to adopt a goal. On the other, I find that when I try to come up with resolutions, I tend to pick things that I'm unlikely actually to accomplish. (I suppose that says something about my goal selection technique.)

But 2006 was a fairly difficult year for me, so it seems worthwhile to spend a bit of time looking back while also looking forward. 2006 showed me some of the limits on the amount of work I can do and the amount of stress I can handle before health problems start to show up. I tried to burn myself out in the spring and summer and am still feeling some effects. I also discovered that some of that stress is internally generated, so I'm trying to train myself out of some of the habits of mind that create that stress or amplify what stress is already there.

So what's in store for 2007? Hard to say. But here are some— well, I like to think of these as guidelines. They're too open-ended to be resolutions.

1. Try less hard. What's that? You read correctly. No, I'm not talking about doing less; I just plan to spend less energy thinking about trying hard at something and focusing more on doing whatever it is that I'm doing at the moment. This means avoiding those habits of mind that seem like they would help one get things done but turn out to be sinkholes for energy. Better to put that energy into the activity at hand instead.

2. Maintain variety. I know people who draw almost all the fulfillment they need from legal work and don't need a lot of other activities (or rest) to sustain them because the activities involved in their work provide adequate sustenance. They can go from phone calls to meetings to research to drafting to a lunch conference to more phone calls to more drafting and still have energy at 8 p.m. I respect those people, but I'm not one of them, which is why you'll never find me practicing law with one of the national über-firms. I admit it. It takes more than the daily activities of law practice to keep me going.

3. Be healthy. I already eat a pretty healthy diet, but I need to get more exercise and rest.

4. Read and write more. This is entailed by item 2. It's been months since I read a novel — longer since I read one I hadn't read before — and there are several non-fiction books that have caught my attention as people posted year-end lists of book recommendations over the last few days. Add to that my recent rediscovery of SSRN, which in the last few years seems to have received lots of work from articulate people with interesting things to say about law. I've now got a healthy stack of printed material to read, even more in the form of PDFs, and soon even more in shipment. I'm trying to make sure that I include some fiction book purchases to keep a balanced diet.

4(a). Start blogging again. Done.

4(a)(1). And keep it up. This seems, from past experience, to be the challenging part. I haven't selected a particular theme and don't plan to, but I have decided that I'm usually not going to write about real estate or what it's like to be a real estate practitioner in a Denver firm. That's partly because that would cut a bit close to writing about my job (a big no-no for an employee in most fields) and partly because I spend enough time thinking about real estate already. (See item 2.) I may write about law practice in general from time to time, but I will avoid writing about my own practice. I hope that instead the blog will become an outlet for some of my other interests and thoughts within and apart from law.