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March 31, 2004

Jedediah Purdy goes to Duke

Love him or hate him, Jedediah Purdy is definitely an interesting guy. And now it seems he's going to be teaching at Duke Law School.

I've read Purdy's For Common Things and Being America, both of which were good solid books. But the thing about Jedediah Purdy that gets me is his resume. Not because it's good--there are a lot of people with good-looking resumes. No, the thing about Purdy's resume is that I would love to do what he's done!! It sounds so interesting.

[NOTE: Several friends of mine think that Purdy is excessively pompous. They are probably right. But then, some friends of mine think I'm excessively pompous as well. The next step: get that fellowship at the New America Foundation and the clerkship with the Second Circuit. . .]

March 30, 2004

Paternalism in medicine

Trent McBride, over at The Proximal Tubule, has started an interesting discussion among medical bloggers about medical paternalism. DB's Medical Rants has a good response, and so does Educated Guesswork.

Since issues of regulation, public safety, and profit take center stage here, this one might be interesting for the law bloggers to follow as well.

As a self-styled libertarian, McBride is understandably opposed to what he considers the paternalism of prescription-only restrictions on access to pharmaceuticals:

In no area is this more apparent than in the prescription-only status of most medicines. It always amazes me that this fact is never called into question, especially among my medical school colleagues. There is no shortage of debate in and about medicine on just about any other topic, but we accept this culture of the gatekeeper almost without question. You would think just once you would here somebody say, "Doesn't anybody find it odd that it is illegal for this patient to buy this drug unless I write it down on a little piece of paper and then sign it." Maybe I lack imagination, but I can't think of another aspect of the human experience where one set of people, not members of the government, wield that amount of power over others.

McBride provides an interesting history of the (surprisingly recent) legislative movement towards prescription-only drugs. He then offers up some solid critiques of this legal regime, citing to studies showing that regulation hasn't made us any safer. He concludes that, except in the case of antibiotics, the requirement for a physician's prescription should be scrapped.

As is often the case when things taken for granted are squarely confronted, the case for prescription-only drugs does look weaker after reading McBride's critique. I'm not so sure I disagree with him. Some thoughts come to mind, however:

1) The practical consequences of removing the physician as gatekeeper to medications might be, in the short term, disastrous. The reason is that the current regulatory regime has induced a widespread belief among the public that OTC medications are, by and large, safe. Libertarians might not like this, but it's a fact, and a fact that extends to virtually the entire consumer market. Caveat emptor died two or three generations ago. Any changes in the law ought to be (as usual) done with a lot of forewarning.

2) Let's not play fast and loose with the word "paternalism." It muddies the discussion if we don't restrict it to a precise and limited meaning. I would suggest that we use "paternalism" to refer to cases in which one person's judgment is arbitrarily or unjustifiably substituted for another's. This would mean that when a patient, upon rational and deliberate reflection, decides to defer to a doctor's expertise, the doctor is not being paternalistic when he makes the decision. Restricting the use of "paternalism" would enable defenders of a physician's judgment to make a stronger argument than "I support paternalism sometimes." Paternalism is a pejorative term. McBride, as a libertarian, might have good reason for using it to describe virtually all physician decisions. But those who disagree with McBride are not obliged to use terms in the way that McBride does.

3) I'm extremely sceptical of McBride's assertion that the price of Claritin and Prilosec dropped because of the move to OTC status, and not because they went off-patent. I'd like to see more evidence for this, so I'll keep an open mind. Also, a question: aren't the OTC dosages much less than prescription-strength? If so, this is another possible reason for the price-per-pill drop. Let's make sure we're comparing equivalent dosages.

That's enough griping, though. I love Trent's post. Especially this:

My purpose in writing this is to get health care personnel, especially medical students, to think about it. It is not something that is ever discussed, but it no doubt should be. We must come to terms that this is a violation of liberty, and then ask ourselves two questions. Is this violation justified? And can we look ourselves in the mirror if it is not?

Anyone who can get medical students to question the status-quo deserves a big 'ol Texas-size thumbs-up!

March 29, 2004

The vitally important words of George W. Bush

There may be plenty of reasons to vote for George W. Bush in November, but his commitment to fighting AIDS in Africa (2003 State of the Union speech) and his desire to put a human being on Mars (2004 State of the Union speech) aren't among them. Rather, it is his ability to brazenly pretend to do these things that makes Bush an effective leader in these troubled times.

An article in the New York Times today suggests that the Bush Administration is, predictably, not following up on its pledge to spend $15 billion to fight AIDS in Africa:

While Mr. Bush promised in his 2003 State of the Union address to spend $15 billion over five years on AIDS in Africa and the Caribbean, his budget requests have fallen far short of that goal. For the most recent donation to the Global Fund, he requested only $200 million, although Congress authorized $550 million.

The President's future budget requests are unlikely to do anything but shrink, given the continuing need to clean up after our invasions of Iraq and Afghanistan, the need to solve Medicare's fiscal crises, and so on. There doesn't seem to be any room for funding a manned mission to Mars anytime soon.

But this news isn't new. It's not surprising, and it isn't even particularly troubling. Anyone with any rudimentary understanding of how our elected leaders speak recognizes that Bush's last two State of the Union pledges weren't descriptions of substantive policy. They were, instead, rhetorical nods to our vital need for make-believe.

We need to believe that our nation's abilities have no limits. We need to pretend that the United States can maintain and strengthen its position as the pre-eminent global military power, capable of acting unilaterally across the globe to reshape societies, nations, and cultures to our liking. We also need to pretend that our pursuit of these ends don't constrain our ability to eliminate AIDS in Africa, or to advance the frontiers of human space exploration. After all, if we abandoned either one of these fantasies, we might actually have to admit to ourselves that our pursuit of one goal limits our pursuit of the others. We would have to acknowledge the costs of our desires, and we would have to choose from among them.

Of course, we must actually choose some goals over others. But we'd rather not face that fact, since it would make us uncomfortable. Since the goal of global military hegemony is the goal we will actually pursue, it's important to pretend that America is also committed to fighting AIDS in Africa, and to putting a human on Mars. Hence, the words of George W. Bush in his last two State of the Union speeches aren't "empty and meaningless," as some on the Left believe. Rather, they are vitally important national fantasy stories, which allow us to send our military forces into conflict across the globe without feeling bad about it.

If we decide to throw George W. Bush out of office, we might run the risk of disrupting our carefully-constructed imaginary image of America as a nation without limits. We might have to engage in an unpleasant discussion about real policy and its consequences--and this would probably make us uncomfortable.

So, for the sake of the willful blindness and self-deception so crucial to America's pursuit of global hegemony, let's re-elect a master of make-believe, George W. Bush.

As a second choice, please vote for write-in candidates David Blaine or David Copperfield.

March 27, 2004

Blog repair saga continues

UPDATE: the comments and trackbacks aren't fixed yet; the blog remains crippled.

However, progress has been made. Depending on how things go, the blog might be returned to full working condition before the weekend is out. But the future is cloudy, the prognosis tentative. So don't, um, get your hopes up too high yet.

(I'm starting to feel like George R. R. Martin. For reasons every fan of his will know...)

March 26, 2004

I lied

Will work on blog tomorrow.

Fixing the blog; fixing the Avs

Thanks to everyone who has contributed their know-how to helping me repair my blog, including Heidi Bond and Anthony Rickey.

No, it's not fixed yet, but I'm going to be working on it tonight.

(Hockey Interruptus: What is wrong with the Avs? They'd better wake up soon, or it'll be another first-round exit this year. Fortunately we have another game with Detroit tomorrow. The Red Wings are always good medicine. Especially road games with the Red Wings.)

Tomorrow morning there's a race in the Arb. I haven't decided whether to enter or not. Of course, everyone who knows anything about me knows I wouldn't pass up a chance to go trail running. But one of the greatest reasons to run the trails, for me, is the chance to get away by myself for a while. Running a race seems to defeat that purpose, unless I'm in good enough shape to be out in front the whole time.

Anyway, off to eat and perchance to fix my blog...

P.S.: Ming, I hope you're not too disappointed. Either by my failure to own an Avs jersey, or by the Avs' failure to beat the Red Wings at home, again, yesterday.

March 24, 2004

The Blog is Back

Thanks go out to Heidi for her help in restoring this blog. Her assistance turned what would have been a multi-day job into a few minutes of work.

So what happened? I don't know. One minute, the blog is working. The next, it's using too much CPU power and overloading everything in sight. Why? Who knows.

If there's one thing I have virtually no patience for, it's a tool that doesn't work. That's why I'll never, ever, ever be a "computer geek." When I think of all the things I could be doing with my time, finding and fixing obscure computer problems ranks pretty close to dead last on the list. It's like sorting through haystacks looking for pins. Some people have told me that they get frustrated with this too, but that they are so elated when they've finally "solved the problem" that it makes all their previous wasted efforts worthwhile. That's why it's so great that people have diverse interests. For every person like me, there's someone who enjoys solving computer problems, so eventually if you cooperate, things run smoothly.

[This, of course, is not meant to imply that Heidi actually enjoyed helping me today. I suspect it was just as much a pain in the ass for her as it was for me. Which is why I'm sincerely grateful for her help. And why I'm explicitly not referring to her when I talk, in general, about people who like to solve computer problems.]

Anyway, until further notice, the comments and trackback functions are disabled.

March 23, 2004

Lying in politics

Why does it matter that George W. Bush lied? Lied about Iraq's "imminent threat"? Lied about the costs of his medicare reform?

Does it somehow matter more that George W. Bush lied than it matters that Clinton lied about "not having sexual relations with that woman, Monica Lewinsky"?

(You might think that neither of these lies matter. We'll get to that in a moment. What you can't say with a straight face is that Clinton's lies matter more than George W. Bush's. If they did, don't you wonder why all the self-righteous moralists (think Bob Barr and Henry Hyde) who seemed to believe in the absolute value of "honesty" in a President, haven't been clamoring for time on FOXNews to excoriate George W. Bush?)

When lying in politics seems so ubiquitous and routine, it's a fair question whether any of it actually matters. Clinton is let off the hook for lying to a grand jury. Bush gets a pass because Saddam was a "bad man." Why not just drop this exaggerated outrage about Presidential lies entirely? The outrage is getting tiresome, and the lies aren't stopping.

Those of us who think that all this lying ought to matter can make several arguments. One is the "down this road lies totalitarianism" argument. Under Josef Stalin, the Soviet government lied so thoroughly and completely that it seemed to forget what the truth really was. These lies had to be accepted by the citizens for their own safety, and so the people sometimes lost sight of the truth, too. Soviet society became absurd, comic, and tragic because it was built with fictions upon fictions. Our own society, the argument goes, isn't immune from this fate, and drifts ever closer to doom whenever a President's lies are trivialized (or, as with Bush's lies and even worse, are accepted).

Another argument is that democracy can't survive in an environment where the government is allowed to lie with abandon about the big issues, like war (or entitlement programs for the elderly). The reason is that citizens are deprived of their ability to judge, weigh, and consider the consequences of this or that policy. Of course, some people will criticize this version of democracy, arguing that citizens do not and should not judge, weigh, and consider public policies. Instead, they should merely choose between competing politicians on a regular basis, similar to the way in which a homeowner must choose between the Cuisinart and the Kitchen-Aid when the time comes to buy a food processor. (Yes, I'm thinking here of Judge Posner.) But even on this description of "democracy," it's impossible for the citizens to make a decent decision between politician Tweedle-Dum and politician Tweedle-Dee without a warranty that the advertisements don't misrepresent the essential features of the product. We don't lightly tolerate bald lies in ads for housewares; why should we tolerate bald lies from our Presidents?

Perhaps the weakest argument (or the strongest) is that these lies are insulting. The only thing worse than the insulting belief of these politicians that they can lie to us and get away with it, is the humiliating fact that we are, in fact, letting them get away with it.

For me, it all started with Ronald Reagan and Iran-Contra. Now that Oliver North, so central a figure in the history of the Reagan Administration's insulting lies, is pulling an occasional gig as a (fair and balanced) talking head for FOXNews, it shouldn't be surprising that the administration of George W. Bush is following in the fine tradition of Ronald Reagan: lying to the American citizen to dupe him into buying whatever they're selling. Before we fault them for this, we should ask, why shouldn't they lie? We, as citizens, don't seem to mind all that much. "Just give me a remote control, a bag of Cheetos, a beer, and all the televised college basketball that I can handle, and I'll let the President say whatever he wants."

"Just don't send me to Iraq. And don't bother me with the costs of medicine until I'm an old geezer."

March 21, 2004

Medical law for the summer

My big preoccupation these days is with finding a job for the summer. This, of course, is true because it was not my preoccupation back in January or February. Since it is, inevitably, something that every 1L must be preoccupied with at some point, I've decided not to put off being preoccupied any longer.

I'm looking into several options, including government work and work with hospitals. Although I'm sure it's true that the 1L summer job doesn't have to be related to my career interests, I think I'll have a lot more fun if it is. I'd love to work with the in-house legal counsel for a hospital, since so much of what interests me about medical law is handled by hospitals. Malpractice defense, contracting, regulatory compliance, reduction of medical error... the list goes on.

I'd also enjoy working with a government agency, especially a state government agency. The great advantage of state governments is that they're all over the country. Not that I don't like D.C., it's just that I don't think I can afford to live there this summer...

March 19, 2004

Bush must go

Via Adam Wolfson, this gem.

Folks, it's not just about Saddam Hussein, or WMDs.

It's about George W. Bush's disregard for democracy and disrespect of the American people. He may have had a case for going into Iraq. But he didn't trust that the strength of his own case would convince the nation. Instead, he chose to lie to us. Either he believed we were all somehow un-american, and wouldn't recognize danger if it hit us in the face, or else he thought that his inability to justify his invasion was no reason not to satisfy his desires, and send American troops to their deaths in the process.

Bush must not be rewarded with a second term.

Pile on the bandwagon

Some bandwagons demand to be jumped on.

Just about everyone knows by now about the new group blog de novo; I'm just as excited about it as everyone else. To prove it, I'll link to Dahlia Lithwick's piece, and highlight what she says about happiness:

The huge irony is that if I had known back in law school how happy I would be 8 years later, I'd have had the time of my life! I would have loved my classes, taken more interesting ones, never gone to an event I hated, done even more clinical work, learned to salsa dance, and made better friends. It would have been like undergrad, but in better shoes. The reason I got stuck was because I let myself feel stuck, thinking that unless I treated law school the way everyone else treated it -- as a dark tunnel to the world of corporate law -- I was doomed.

Beautifully said. So much of our enjoyment of the present is tied to our thoughts about the future. A pessimistic view of the future makes it easier to be morose now; an optimistic view makes it easier to be carefree and happy.

An analogy that works for me is mountain biking on rough trails. If you stare at the scary and dangerous roots, holes, rocks, and dropoffs ahead of you (pessimism), you're more likely to crash. If you focus only on the smooth line you could conceivably take through the obstacles (optimism), you're more likely to make it through alive. Or at least, free of lacerations and without forest bark ground into your face.

March 17, 2004

Match Day

March 18, 2004 is a seriously huge day for almost all 4th-year medical students. It's Match Day.

At 1:00 pm (1300 hours) Eastern Standard time, most every senior medical student in the country will open an envelope, and in that envelope will be the name of a residency program. The students opening these envelopes won't know until then which program they've been matched with. A program on the East Coast? West Coast? Unknown.* The only thing the students do know is that they've already committed themselves, contractually, to whichever program in in their envelopes. When the students sent in their rank order lists, they agreed to begin their residencies at whichever program they were matched with.

No wonder most of them are nervous, anxious, and excited.

No wonder that this system is the target of a lawsuit.

The suit alleges that the Match process is an illegal anticompetitive scheme that allows hospitals to keep wages for resident physicians well below market rates. Supporters of the Match claim that it benefits both hospitals and medical students by eliminating the chaos that occurred before the adoption of the Match.

My opinion? It's probably both.

Wages for residents across the country are essentially uniform across geographic regions and specialties. And they are much, much lower than the wages a resident can command while "moonlighting," or performing work outside of the residency. When you figure in the hours residents work, their wages can sometimes be as low as $10 an hour, making them the cheapest source of medical labor in the entire hospital.

There are generally more residency positions than there are medical school graduates to fill them. If the hospitals weren't conspiring to keep wages low, this undersupply of graduates of American medical schools would cause hospitals to bid up wages and sweeten their working conditions to attract scarce applicants. But wages aren't in danger of going up anytime soon. Working conditions may or may not have improved with the passage of new work-hour restrictions, but the plain fact is that hospitals are not competing for residents on the basis of wages.

On the other hand, there are undoubtedly some benefits which residents receive under the Match. Exploding offers? Nonexistent. Third-years inking employment contracts with the choice residencies? Doesn't happen. People familiar with the market for judicial clerks, which until recently was chaotic in just these kinds of ways, will certainly appreciate the benefits of the Match system.

Like AMSA, I haven't taken a position on the lawsuit yet. I'm sympathetic to the argument that resident wages are too low, and I don't buy the hospitals' line that residencies are "training" and not employment (they are both training and employment, much like the early years at a big firm for a law school graduate). But I also remember how few of my classmates in medical school really resented the Match process, and how smooth and trouble-free that process seemed to be.

So at this point, I'll just wish everyone a HAPPY MATCH DAY!!!

(More from blogborygmi and A Chance to Cut.)

* Not completely unknown. If you didn't put a program on your rank order list, it won't be in your envelope on Match Day.

March 16, 2004

The real powers of student government

The difference between running for office in law school and med school seems to be that in law school, there are a lot of candidates who are willing to give longish, prepared speeches about why their ideas are innovative, how they're responsive to student interests, and how they won't bog the Student Senate down with so much policy that there isn't room left for planning parties.

In med school, there were a few committed candidates for elected office, but many of them wouldn't admit to wanting to give a speech, even assuming that any of their classmates were willing to listen to one. Which they weren't. The students knew the candidates already, or believed that they did, and didn't want to spend too much time on an election. Unsurprising, I guess, when you consider that they chose to go medical school. If they were interested in campaigning, they'd have gone to law school instead.

Nevertheless, I suspect that law school and medical school student governments are very similar kinds of beasts.

No, I'm not running for office. In med school I was drawn into student government by my dissatisfaction with certain policies of the Administration; in law school I've been fairly satisfied with things. At least, I have been so far.

One thing that serving in med school student government showed me is that while students don't have much statutory power, they have a lot of persuasive power. Our student government was deeply involved in issues of curricular reform, a subject over which we had zero authority. Nevertheless, we had a great deal of persuasive ability. Our real handicap was a short institutional memory; students were limited to a maximum of four years of participation, and newcomers often weren't informed about what issues had preceeded them. As a result, the students were constantly re-inventing the wheel, while certain of the Deans could play the same tired old hand over and over again.

Which is why I was troubled today, listening to candidate speeches, whenever anyone claimed that they "knew" where the dividing line was between what students could do, and what they couldn't. Any candidate who seemed to assume that some topics were simply not a matter for the student senate to address was crossed off my list.

I want to vote for someone who recognizes the persuasive power that a student government can wield. I won't vote for a mere functionary, or for a brownnosing flunkie of the Administration. Even at the level of student government, there is a need for (and room for) real leaders.

March 15, 2004

Disengagement and Judge Posner

This essay is a hopeless mess, but since it brought to mind Judge Richard Posner, I thought I'd say a few things about it.

A fan of sci-fi and fantasy, this author nevertheless claims (mistakenly in my opinion) that fans of sci-fi and fantasy are somehow disengaged:

But the criticism of science fiction and fantasy fans - that we are infantile and escapist people, and socially inept to boot - sadly has a little more truth to it. Of course, there are many pastimes that people pursue obsessively, and it may seem a little unfair to stick the boot into sci-fi geeks rather than car fanatics, opera buffs or stamp collectors. But of all the hobbies and interests out there, being preoccupied with the details of otherworldly settings and characters, at the expense of being engaged with the world you actually inhabit, does bespeak a certain retreat from society into the safety of one's imagination.

Why must an enthusiasm for fantasy and sci-fi be 'at the expense of' an engagement with the actual world? Answer: they're not mutually exclusive, and the author is mistaken. But Starr isn't primarily interested in a criticism of imaginative stories or of their fans; he wants to use this common misunderstanding as a springboard to a discussion of his main concern--a general waning of concern for this world:

No, the broader reason why mainstream society has become more disposed to immerse itself in fantasy is because of a general cultural stagnation that exists today. At a time when we feel less certain of our ability to impact on the world around us, we tend to retreat into fantasy worlds instead. One consequence of this is that we are increasingly more comfortable contemplating the ins and outs of life in Tolkien's Middle-Earth, than we are confronting the ins and outs of life on Earth proper. As Hollywood serves up ever more lavish fantasy spectacles for us to marvel at, the society that lies outside of the cinema and the comic shop stagnates.

I won't attempt to rescue this essay. But I do think the author's observations are fairly accurate. More and more, people are feeling impotent, and believe that they cannot have any meaningful impact on the world around them. Since I don't believe that this is due in any way to fantasy novels or to the internet, I'm left wondering what it is due to.

Which brings me to Richard Posner. The first thing I did today was settle in to my usual spot in the coffee shop and read more of Posner's Law, Pragmatism, and Democracy (see link at right). Posner believes that the great mass of the people don't give a rat's whisker about politics. Instead, he claims, they care passionately about what he calls "private interests," by which he means interests that are the subject of markets. According to Posner, most people would be happiest if the whole of their public lives were spent in the market, and if the realm of politics disappeared entirely, good riddance! (Assuming of course that this disappearance wouldn't have bad consequences for the market itself.)

This is exactly the opposite of what Hannah Arendt believed. She thought that people were most fully actuated and fulfilled when they left the marketplace and moved into the agora, where buying and selling were left behind to make room for politics. The lot of a Greek slave was miserable in part because the slave, although occasionally allowed to buy and sell, could never be a political actor.

It seems to me that some judicious mix of the two activities will actually prove to be the elixir of happiness for most people. But although I will readily admit that Posner's position is probably at least as (partially) correct as Arendt's, I've always been much more attracted to Arendt's position than to Posner's. The market has never seemed to me like the nirvana that Posner describes. If it was, for the majority of people, I would not expect to see an increasing disengagement from the world in an age where the values and practices of the market are swallowing every bit of public life, including the realm of government and politics. People should be happier than ever, and yet many seem plagued with feelings of impotence and irrelevance.

Perhaps my observations are simply wrong. Perhaps people today are so happy and wealthy that the only chance they have to indulge in the pleasure of whining is to complain that they feel irrelevant and impotent. Perhaps. Unlike the author of the article I've quoted, I won't use the box-office receipts for The Return of the King to try to make my point.

I may be wrong, but I don't think so. I think Posner is wrong. He's mostly right, but he's wrong in just the right places.

March 14, 2004

Sitting in Starbucks

This morning, sitting in the Starbucks at State and Liberty, two (2) things occurred to me.

First, the difference between the way the employees at a busy Starbucks approach their interaction with a customer, and the way the customer approaches their interaction with the employee, is usually very great indeed. The employee is sharp and focused; their goal is to complete the transaction with maximum efficiency and then to move on to the next customer, especially if there's a long line of customers waiting for skinny lattes and other foo-foo drinks. The customer oftentimes is listless, unfocused, and perfectly content to meander through the transaction. After all, they've come to Starbucks to relax. Take a load off. Take leave of their bodies and minds. Drift off into never-never land and play with the little green sprites... Ahem; well. Anyway, it often seems like that's what they're doing.

I worked in a coffee bar (not a Starbucks) before, and this difference of approach was often an undetected source of irritation for me. Why didn't the customers just focus? Hello? Are we all sniffing paint here, or what?

Clearly, I was not cut out for a career as a barista.

As for the other thing: I think the key to getting people to do horrible things is to give them just the tiniest of rationalizations. Hooks that they can hang their consciences on, so to speak. For example, in Babylon 5, Garibaldi-- uh, wait; I shouldn't tell you if you haven't yet seen Babylon 5 for yourself. That would be cruel. Anyway, it isn't even relevant because after Garibaldi was captured he was-- um, better not spoil that one, either.

Here's another example. Pro-bono work at a Biglaw firm. The tit-for-tat goes like this: you sign up for Biglaw, which you may find isn't your most ethically satisfying kind of work, but you'll do it because they give you a convenient rationalization: you can do pro-bono work in your "free time." Even though you know the net effect of this arrangement is still that the vast majority of your work is ethically unsatisfying, you'll swallow it because you've got a rationalization. Reason is trumped by the rationalization, you might say.

Now, this is just an example. Clearly not everyone finds Biglaw work ethically unsatisfying. But my original Babylon 5 example didn't exactly work like I thought it would, so cut me some slack. Imagine for yourself some kind of ethically dubious activity, and ask yourself why you think people choose to do it. I'll bet that you'll be able to identify a few little rationalizations in there somewhere.

Ahh, Starbucks.

March 09, 2004

Hockey Rules

The Colorado Avalanche buried the Vancouver Canucks yesterday in a veritable cascade of delightful goal scoring that even the Computer Guy loved.

But in the third period, Todd Bertuzzi of the Canucks sucker-punched Steve Moore of the Avalanche from behind and drove him to the ice. Moore lay unconscious in a pool of blood for several minutes. The NHL suspended Bertuzzi pending a Wednesday-morning hearing; Bertuzzi's violence obviously went beyond even the forgiving rules of hockey. Or did it?

There are hockey rules, and then there are hockey rules. The former are written down somewhere in a little book that the officials memorize and (I'm assuming) swear a solemn oath to uphold when they don the officials' jersey. The latter are never cited chapter and verse, but every hockey player knows what they are. Todd Bertuzzi violated the former as a consequence of upholding the latter. And every hockey fan could see it coming.

On February 19, the Avs and Canucks played a game in which Steve Moore hit Canucks superstar and Sweden's second-best hockey player Markus Naslund hard enough to put him out of the lineup for three games with a concussion. Markus Naslund! According to the informal rules of hockey, you don't just go around giving guys like Markus Naslund concussions. That's almost as bad as if someone were to give Avalanche captain and all-around good guy Joe Sakic a concussion. Can you imagine it? The Avs would be out for blood. As were the Canucks on Monday.

This is one of the unwritten rules of hockey. You can fight, and you can injure people, but you can't do it like that. It's like pornography--you can't define it, but you know it when you see it. And that's why it's not written down. You just have to know hockey.

As the Avs and Canucks demonstrate, there are rules, and then there are rules. Not to mention all those customs, habits, routines, guidelines, laws, norms, standards, morals, and commandments that burden us all.

EDIT: It's now reported that Moore sustained a neck fracture. He's out for the rest of the season, and we don't know yet what the sequelae of his injury are.

March 07, 2004


I have finally figured out what the legal profession lacks. Abbreviations (abb's). Law doesn't have enough abb's, and the ones they have are often, well, just lame. As far as abb's go, law could learn a lot from medicine.

There simply aren't enough legal abbreviations, either to mystify the lay public or to simplify the process of legal writing. Sure, there are some common legal abbreviations out there. Citation forms are a reliable source: F. Supp. 2d; S. Ct.; U.S.C.A.; for example. But there don't seem to be any standard abbreviations for routine note-taking. Some people still use 'π' for 'plaintiff' and 'D' for 'defendant,' but this practice seems far from standard. And what about other words and phrases which beg for abbreviations, like 'holding' or 'issue' or 'overturned' or 'fee tail male subject to divesting executory interest'? It takes me five minutes to write all that stuff out.

Some of you will stop me here and say, "but, the Bluebook has many abbreviations." Don't tell me about the Bluebook. The abbreviations in there are just not cool. They're a pain in the ass. To see why, all you need to do is look at Table T.8 which purports to give "suggested abbreviations for citations of court documents and legal memoranda..." These abbreviations are lame. Counterclaim is abbreviated 'Countercl.' Deny is abbreviated 'Den.' And, here's some helpful ones: 'Answer' abbreviates 'Answer', Quash is abbreviated 'Quash'.*

To see why the law seems so bereft of abbreviations, all we need is to turn to the field of medicine, and compare:

"42 y.o. ♀ c/o RUQ abd. pain x 2 days. Hx of poorly-treated NIDDM, COPD, GERD. s/p MI one year ago, appy in childhood. Ob hx: G2P2. PE: wdwn ♀, NAD, AAOx3. PERRLA, no JVD. Abd: RUQ is TTP, no rebound. +BS . . ."

Although they'd protest the thoroughness and organization of this note, most any medical professional would understand what was said here, without reaching for anything resembling the Bluebook.

The great benefit of these abbreviations is that they speed up note writing AND mystify the lay public. The abbreviations in the Bluebook almost never do the former, and only occasionally do the latter.

Can the law do better? I think it can. We could someday, if we choose, write:

P, James Smith, AFSJ in fav. D re: SH under Title VII, 42 U.S.C. 2000e-2(a)(1), all. LC err R: I1-Standing. I2: excl. ev.
I1: St.: Y
I2: LC excl. ev.: O

"Plaintiff, James Smith, appeals from grant of summary judgment in favor of defendant in sexual harassment suit brought under Title VII, 42 U.S.C. 2000e-2(a)(1). Smith alleges that the trial court erred in its ruling that he had no standing to sue, and on its ruling excluding certain evidence. We find that Smith did have standing, and overrule the trial court's exclusion of the evidence. We reverse and remand for further proceedings consistent with this opinion."

(Gee, the legal writing here is almost as bad as the medical writing...)

But the point, I think, is made nonetheless. Any lawyers in favor of more abb's??

* I don't mind 'quash' so much, because 'quash' is too cool a word to abbreviate.

March 06, 2004

Extortion, or abuse of power?

Anyone thinking of making a gift to the cops might want to think twice. Via The Proximal Tubule, this intriguing case of a website operator arrested for extortion when he told the Macomb County Sheriff's Department that he would shut down the website he maintained for the sheriff unless he was paid $300,000:

"This is a case of someone trying to get rich quick," said Eric Kaiser, chief trial attorney for the Macomb County Prosecutor's Office. "He was given the privilege of carrying the banner of the Macomb County Sheriff's department and he tried to take advantage of it."

"He built up the site so that we would rely on it so much and would pay him," Hackel said. "(But) that content belongs to all of us."

The problem is that it looks more like a gratuitous benefit that's being withdrawn:

Richard, a former reserve deputy in the sheriff's marine division, more than three years ago offered to provide the Web site at no cost to the county as an in-kind contribution. [Sheriff Mark] Hackel, who enthusiastically supported it, said Richard agreed to operate it in exchange for publicity for his company.

Or, as reported here:

Both sides agreed on a few points: that Richard started running the site for free a few years ago; that his site became so popular, the Sheriff's Department -- and the public -- came to rely on it. And that Richard decided the site was too costly to run for free any longer.

I don't know the details of the extortion law that he's being charged under, but it seems at least that Richard hasn't been a naughty boy under contract law. There was no consideration for Richard's maintaining the site. Richard says the website was run for the sheriff in exchange for publicity for Richard's company. The publicity apparently was provided on the website itself, and (arguably) by printing the URL on the sides of patrol cars and on official letterhead. The sheriff seems to have been looking for a way to get a website on the cheap: "Hackel said he didn't want the county to run his department's site to ensure it wouldn't cost taxpayers any money."

If there were no other terms, it seems likely that Richard could shut the site down if economic conditions changed and the site was losing money. In fact, it seems that Richard could shut the site down for no reason at all.

But I'd like to know if there were other terms or promises. Did Richard ever promise to keep the site open for a given length of time, such that the sheriff's department justifiably relied on the promise (a la R2K 90)?

I hope that more facts about this case become available. Otherwise, it just looks like a simple abuse of power by the Sheriff.

Thanks everyone

Thanks to everyone who's wished me a happy birthday! I'm having a great day, and I hope your birthdays are just as great, whenever they may be...

Now if only the Avs would snap out of their slump!

March 05, 2004


When I was in medical school, it seemed that the big choices students had to make were rarely made on the basis of money. More than that, it seemed as though money wasn't a front-and-center issue. The big decisions about which specialty to go into depended upon time commitment and upon enthusiasm for the job.

In law school, things sometimes seem different. Decisions that students make about where to work seem quite frequently to be made on the basis of money. Sure, the other considerations of quality-of-life and enthusiasm for the work are also huge, but compared with the decision-making in medical school, money seems to be a bigger factor.

Perhaps one reason is the dramatic discrepancies in pay between entry-level legal jobs. Take summer jobs, for example. The difference between "volunteer" positions (which often equate to 'pay-to-play' positions because the student is not even compensated for room and board) and paid jobs at law firms is HUGE. You can make $1700 every week as a 1L at a firm. Or, you can pay for an apartment somewhere and work for free. The work you do as a 1L summer will probably not be that different in terms of its nature or of its quantity.

What follows? I'm sure something does, but I've got to run along to class now. Maybe more will follow...

March 04, 2004

The efficiency game

Have you ever wondered how you could maximize your personal efficiency? The consequences of success are so huge that making even small improvements could make a huge practical difference over time. Plus, it's sometimes just a fun thing to think about. What would you do if your goal was to maximize your productive output for each unit of work input?

I can immediately think of two things: get enough sleep, and get enough exercise. An hour of sleep-deprived work isn't as efficient as an hour of well-rested work. Exercise, also, tends to sharpen you up.

Some other things which come to mind include:

  • Reduce distractions. This might include everything from getting rid of that damned cell phone to trying to "live in the present" and not worrying about the past or the future.
  • Adapt your work schedule to your daily energy levels. For example, I usually do my best thinking first thing in the morning, and after 8 pm. At 3 in the afternoon, I'm usually a person-shaped vegetable, mentally speaking. So, if I work out or do chores around three, and spend the morning and evening reading and writing, I'm more effective than if I foolishly try to work out first thing in the morning.
  • Avoid boredom. For me, this means not doing the same thing for too many hours in a row. Given six hours, I'd rather not read contracts for three hours straight and Property for the next three hours. I'd rather read Contracts for 1 hour, Property for 1 hour, Contracts for one hour, etc. This is one of the reasons I prefer emergency medicine to surgery (many straight hours in the OR) or to internal medicine (many straight hours on seemingly endless rounding)... ahem. Internists, you knew that was coming...
  • Choose what you spend your time on carefully. Given three options of what to do next, do the thing that's most important, not necessarily what's most urgent. Of course, it's easy to say this, but harder to actually rank things in order of importance.

    These are just a few ideas. I suppose I could have spent the last ten minutes reading for my classes tomorrow, but blogging is just so important...

  • March 02, 2004

    The price of mobility?

    Everyone is so eager to assert that feudalism would be inferior because it would limit social mobility.

    Even if this were true (which I'm not convinced it is), let's not forget the price we pay for this mobility: at-will employment.

    See, e.g., Donahue v. Federal Express Corp., 753 A.2d 238 (Pennsylvania 2000).

    Donahue, the poor bastard, was fired because Fed Ex didn't need him anymore. His various and sundry pleas for legal redress fell on deaf ears. Pathetic, really. Workers in our modern system can't look beyond the next paycheck; no one owes them anything.

    Under a well-ordered feudal system, your allegience to a lord would be balanced by the lord's obligations to protect you. That's more than Fed Ex is obliged to do. . .

    March 01, 2004

    Feudalism: why not?

    In Property we've been meticulously covering the rich variety of estates that originated in English feudal land law. Every law student has to do it sooner or later.

    But I like it. I don't like memorizing the differences between contingent and vested remainders, heavens no, but I like delving into the feudal past and tracing its influence to modern times. I like words like "feoffment" and "disseisin."

    I know. Geek.

    Anyway, I asked my colleagues at dinner a few weeks ago whether they'd like to return to a feudal society. Straightforward question, that. But judging from the uncomprehending stares and expressions of shock, not too many law students have given the question of re-establishing feudalism any serious thought.

    Why not? Haven't they ever read a George R. R. Martin novel?

    Seriously; we're indoctrinated from birth in the belief that the way things are now are the best they've ever been. I don't believe it. I think some things were much better under feudalism. Such as:

    1. Absence of the pernicious belief that all land (not to mention everything else as well) is fungible.
    2. Absence of the belief that it's all alienable, too.
    3. More heraldry, and tapestries. Nowadays, even at the wonderfully Gothic campus here at Michigan, we call our student sections by such rich and sonorous titles as 'EFGH' and 'IJKL,' and we don't even get to wear robes with our section's crest on them, like the Hufflepuffs and Ravenclaws at Hogwarts.
    4. The conviction that who you were mattered, not what you had. I know; this is often cited in terms of the greater social mobility of modern life, and the semi-permanent caste system under feudalism. But I think this story is overly biased. Social mobility today is more mythical than we like to admit. And no society has ever completely rejected the idea of meritocracy. The paths to the top under feudalism are unfamiliar to us, but they existed, and they were traveled upon. And for those not on their way to the 'top,' at least they had a place for themselves, however modest, under feudalism. These same people in modern times are often completely and utterly dispensible.
    5. Less 'freedom' under feudalism. What? Less freedom is good? Uh, yes. Hell yes, in fact. Freedom is a lot like money. When it's pursued as an end in itself, it turns out to be empty and unsatisfying. Modern libertarians, unable to identify anything that freedom is good for, out of fear of infringing someone's freedom, resort to the claim that freedom is good in itself. But it isn't. The problem with modern life is not that we aren't blessed with freedom, but that we're blessed with freedom in a world where every choice, every lifestyle, is just as good as every other. The only argument for any choice is always just that it 'feels better for me.' Which is fine, as far as it goes. But when the biggest choices in life have to be defended on the same grounds that we defend our choice of toothpaste flavors, we've got a problem.
    6. Castles.

    Some things have gotten worse since the feudal era, as you can see, but obviously not everything has. We have made some progress:

    1. Antibiotics.
    2. Broadband internet.
    3. The idea of the intrinsic dignity of the person (however much this idea has been subverted by the coincident beliefs in infinite alienability).
    4. The move away from an excessive reliance on 'faith' (however much this has been replaced by our idolatrous worship of the idea of unlimited economic growth and the myth of progress).
    5. The video game DOOM (circa 1996).

    Return of the King settles in

    I remember the day when my friend Nick first told me that "they" were making a movie out of the Lord of the Rings. We were hiking in Chatauqua Park above Boulder, Colorado, and I remember being excited, but also worried that the movie might suck.

    There would be a lot of people who hadn't read Tolkien's book who would form their opinion of Tolkien based on the movie. If the film sucked, this would simply be another excuse to dismiss the story as "just" fantasy, a kid's book, something that didn't deserve much respect. For some reason, I thought it was important that this didn't happen. I'm thrilled when I meet people who know who Aragorn is, or who can tell me how they imagine the battle on Weathertop, or that they like (or hate) Denethor. I suppose for many people, the satisfaction I find in sharing the Lord of the Rings is found by sharing family stories, or Bible stories, or other such things. Your sense of belonging to the culture around you is stronger if you can share common stories, and if this movie was good, maybe a whole lot of people would see it, and maybe some of them would read the books. Maybe Rivendell would settle a little more firmly into the foundation of the culture around me. That was my hope. My fear was that a bad movie would scare people away, and Tolkien would involuntarily become a more private passion.

    And then the first film came out, and it was great. It wasn't perfect, but it obviously took Tolkien's story seriously, and that was what was most important. The public seemed to like it, based on how much money it made. It was even nominated for Best Picture. And so was the second one. But they didn't win. By now my hopes were higher; I wanted a real triumph.

    Tonight, The Return of the KIng won Best Picture, Peter Jackson won Best Director, and the concluding episode of Tolkien's story is tied for most Oscar wins in one year with Titanic and Ben Hur--eleven. I'm feeling, for some reason, personally triumphant. Because this is something I've wanted for a while.

    I can make a reference now to Aragorn or to Gollum in casual conversation, and there's a good chance everyone will know who I'm talking about. When people mention elves, they're sometimes not thinking of the Keebler kind. This is how stories sink in, over time. And I'd like to think Tolkien's story is settling in more or less permanently into our cultural background, helped along by these movies that Peter Jackson made.