Unused and Probably Unusable

Judge Walton allowed 12 law prawfs to submit a brief. Routine, even in a high-profile case like the one against convicted felon Scooter Libby? (His conviction isn't final yet, and the question of bail remains unresolved, despite the sentence of 30 months; also, there's this appeal, apparently involving the jurisdiction of the prosecutors.)

But, in the one-page order, available online thanks to Howard Bashman, also see the post at White Collar Crime Prof Blog, "Did the Prosecutor Have Jurisdiction in the Libby Case," there's a fascinating paragraph-long footnote.

In the course of allowing briefing on the issue of jurisdiction, U.S. District Judge Reggie B. Walton drops this startling (to me) statement:

1 It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Order available here.

What a neat, neat thing to do. Well played, Your Honor. Well played.

I didn't want to go down this road. Like most folks interested in language and linguistics, I read Language Log, and like most folks aware of internet memes, I'd visited I Can Has Cheezburger, which was first discussed on LL in a post titled Kitty Pidgin and Asymmetrical Tail-wags. As discussed, LOLcats involve image macros, i.e. pictures of [cats] with text that fits a meme or macro overlaid. Text of the form "I can has X?" or "I'm in your X, Ying your Z" or whatever. Only spelled worse, and with bad grammar. Intentional misspellings and bad syntax, that is. Engrish and worse. See the useful wikipedia page on Lolcats for more information.

Anyway... it didn't stop at cats. As Mark Liberman of LL recently pointed out, there are PhiLOLsophers. There's pictures out there of any given cute or uncute thing, with images of the same sort overlaid.

And... I had to jump in.

Here follow my contributions. Is it LOLlaw? LOLlawyers? Or can someone come up with something better?

The best three first, and then one that didn't come out as well. Click for larger versions. No rights reserved. Please credit Unused & Probably Unusable.

A local Philly piece of history:


From Hamdan v. Rumsfeld:


Thurgood Marshall on the steps:


And the first version of the above, with a different caption:


All images made with ROFLbot, http://wigflip.com/roflbot/.

HB of How Appealing posts the following:

"The American Liberal Liberties Union: The ACLU is becoming very selective about what it considers 'free' speech." Today in The Wall Street Journal, Wendy Kaminer has an op-ed (free access) in which she writes, "One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU's virtual silence in Harper v. Poway, an important federal case involving a high-school student's right to wear a T-shirt condemning homosexuality."
Posted at 08:47 AM by Howard Bashman

Well, I don't know Wendy Kaminer. I do know the WSJ, and its famous hostility (at least on the Editorial and Op-Ed pages) towards liberties of any sort other than economic or pro-conservative.

Wendy may be right. The ACLU's failure to act in this case may mean... something.

I'm just going to stop thinking there. I am going to bet otherwise.

People... in general... who comment on the ACLU's beliefs, tendencies, trends, or nature because of their SILENCE and INACTIVITY in a given situation are usually blowing smoke.

The ACLU is not a government. The ACLU is not a nanny. The ACLU does not owe you anything, and if you don't support it, then much like a job or a relationship, it will go away.

The ACLU takes on cases - not all cases - in which important considerations of constitutional liberties are at stake, and the case is either winnable, or should be hard fought.

If the ACLU thinks that a case is being adequately managed, it will generally not waste its (finite) resources. If the ACLU for whatever reason thinks a case should not be won, then it will do the same. If the ACLU is just too busy to work on a case, even an important case, because there are more important cases, the same.

If the ACLU fails to act... that says precisely nothing about anything other than the very fact.

In contrast, when the ACLU does act, speak, participate, or litigate, you can draw your own reasonable conclusions from their affirmative behavior.

Failure to get involved in a case pitting important 1st Amendment considerations against the rights of schools? I mean, they've done that case. Their position is known. Other people can argue that case. Would an amicus from the ACLU clarify something that wasn't known before? Should they be telling people that this involves free speech?

People who criticize the ACLU often have valid reasons. I always wonder, though, when the reasons they state, are not valid ones. What is it about liberty, free speech, or constitutional protections that these critics hate? Or is it just that they aren't paying attention, or being disingenuous, trying to win political points despite knowing better?

This is another way of asking, "Fool or knave?" Again, this isn't about Ms. Kaminer. For all I know, she's put her finger right on the big problem with the ACLU, and I'm not going to waste my own time reading anything in a WSJ op-ed criticizing the ACLU. Wake me up when it's a story in a reputable source ("having some integrity") about the same thing.

And with that, I'm done wasting my time about that post on HA, period.

I was bothered by this quote in a LA Times story:

Lawyers for IBM told the court that the case "presents no important questions of federal law" and should be rejected. (Justices Weigh Limits on Racial Slurs in the Workplace, David Savage, 14 April 2007.)

"Jordan could not have reasonably believed that the isolated co-worker's statement, not directed to [him], and not related to the workplace, created an unlawful hostile work environment," they wrote.

"Could not have reasonably believed." Now, what the argument should have said was, "We think it's unreasonable if he did believe," because it sounds less insulting that way. They mean that no matter what his actual belief (threatened or not, offended or not, whatever) it wasn't the sort of situation where a reasonable person (hypothetical) in his shoes would have believed X, where X is the necessary condition for the lawsuit.

In other words, Jordan allegedly heard a white co-worker say, in front of him, that people who look like Jordan, but are not Jordan, should be imprisoned and caged, not like animals, but along with animals in order that they would be sexually brutalized by them. But it would have been unreasonable if he had taken it personally.

Now, that kind of clever lawyering makes me want to have an impolite response. Something like, "People who look like those lawyers, but are not actually those lawyers, and are guilty of offending my sensibilities, ought to be imprisoned in a jail along with murderers and sex offenders who would treat them roughly."

I know they're just making a legal argument. But I'm offended by the law of the case. Here's hoping the Supreme Court takes it... and decides not to side with the panel or en banc majority.

That's two separate topics. Semicolons separate two things which can stand on their own. Colons, in my limited experience, are for when the thing following the colon is an exemplification or similar for what goes before (Wikipedia says "proves, clarifies, explains or simply enumerates elements of."

First, flogging The Green Bag (an entertaining journal of law). No, really, that's the subtitle on the masthead.

I highly recommend an article in the current issue to hit mailboxes, the Second Series * Winter 2007 ish that just came out, Volume 10 Number 2. By one William A. Birdthistle, it's titled "Football Most Foul," and is a rousing read for them what likes their legal studies leavened by a bit of athletic competition, or prefer to read about their football (read: soccer) with a heavy dose of footnotes, references to the text of the law (or in this case, the Laws of the Game), comments about the present state of refereeing and suggestions for altering said arbitrage to improve perceived problems, and similar sexy topics.

I was a soccer referee in a past phase of my life, so there was some personal interest there, but the article is clear and interesting in any case.

For those who don't have any inclination to go subscribe to the Bag outright, I can only recommend what appears on the page facing the back inside cover: "When you need back volumes & issues, Turn to Hein! ...Complete sets to date... [and] we can also furnish single volumes and issues." Try www.wshein.com or mail at that domain name to inquire.

(There's also a really good bit about former Associate Justice Benjamin Curtis, who wrote the best dissenting [and therefore best] opinion in Dred Scott v. Sandford, as well as writing a pamphlet explaining that two of Lincoln's actions had exceeded his authority and thus been unconstitutional [suspending habeas and issuing the Emancipation Proclamation], as well as defending President Andrew Johnson at his impeachment trial. A noteworthy career, that one.)

Secondly, jurisdiction.

In Aaron Streett's latest serial issue of the (just-mentioned) ever-growing, best-selling "SCt Today" e-mail bomb, he brings us up to date on the two new issued decisions, one of which, Rockwell v. United States is the focus of my attention. The other issuance involves Guamanian debt, a topic close to many of our hearts. There are also two grants, one of which involves both potentially salacious material and free speech on the internet, in the form of the 11th Circuit Court of Appeal's ruling that the Protect Act was unconstitutionally vague and overbroad, potentially criminalizing a hypothetical email from a grandfather, innocently (and accurately) titled "Good pic of kids in bed".

Anyway: jurisdiction! (see, colon.)

The bite in Rockwell wasn't that the company hadn't in fact left itself potentially open to 26 counts under the false claims act; the U.S. Government in fact had reason to complain of environmental frauds. There is a procedural twist: the case was brought not by the U.S., but by a fired former employee in a qui tam action. These actions are beyond the scope of this post...(see Wikipedia on Qui Tam for a brief explanation).

In any case, the fired Mr. Jones had a reason to believe that the "pondcrete" made by mixing toxic runoff from the nuclear weapons plant with concrete would in fact disintegrate, causing dangerous contamination. He later amended his complaint to reflect information that became publicly available, including 25 different counts. But he had the actual reason for the pondcrete problem wrong, and he had not in fact had information at the time he left that there was a present problem. He had made a prediction, nothing more. Disintegration began after he was fired, and for a reason he had not predicted.

So, what about his claim? Was he the kind of qui tammer the False Claims Act was intended to benefit? Or was he just a weird kind of lucky? The majority, in an opinion written by Scalia but nevertheless defensible, is that there is no logical connection between his original claim, which he had information to support, and the amended complaint based on public information. This is crucial, because there's only the payoff for original sources of information. You can't win a payday by reading the newspaper and then filing suit with no facts unknown to the public.

The relevant "allegations," then, are those of the most recent version of the amended complaint.

The dissent, per Justice Stevens, would have come out the other way, because allegations most naturally in his view means those in the original complaint (which Stone certainly had direct knowledge of) and Stevens felt that FCA jurisdiction should be based on the original complaint, and then, follow this, then the bit in Aaron's e-mail which bit me:

citing the general rule that jurisdiction is ordinarily determined then, and chastising the majority for forcing courts to reassess their jurisdiction with every amended complaint.

See what happened there?

Plaintiffs often want jurisdictional rules to come out their way. (It's only possible to stay in court, which is often-if-not-always what a plaintiff wants, if the court has jurisdiction to hear the case.) Unlike defendants, I presume. Anyway, a defendant might reasonably argue that amending the complaint until it no longer contains any counts providing the necessary kind of allegations required in the False Claims Act means the plaintiff has lost their jurisdictional "hook," and now should be tossed out of court. It's a logical argument.

A plaintiff might reasonably argue that if a claim has jurisdiction to be heard at the time it is filed, and that changing information requires amendment, then so long as the subject matter of the complaint is congruent, and the parties are the-same-or-similar, or whatever other degree of closeness one might want, then so long as the case isn't brought in bad faith or something there's no reason the court can't proceed to the merits.

Now, Stevens cited a "general rule." And in fact, many cases are decided where jurisdiction absolutely existed at the time suit was commenced, and probably didn't by the end, but the court decides the case to get it over with, presumably because we're talking not ability-to-hear-and-decide-the-case jurisdiction (subject-matter jurisdiction) but prudent jurisdiction, where the court can exercise its judgment about whether or not the case should be heard at all. The first cannot be avoided, the second can. Different rules for the constitutionally required (Article III) kind of jurisdiction, than for the kind created by the court - meaning the Court.

I guess this one comes down to the picture you choose. Was Jones' good-intentioned attempt to blow the whistle and report a false claim close enough, or was he just barking at the right tree without having any reason to know there was in fact a false claim up there? One side seems to be concerned that people who try to report false claims won't be rewarded if the complaint is amended too much; the other side seems to be worried lest the rule become a windfall to "whistle-blowers" who lack actual information, sort of on the theory that if a thousand dogs start hollering under a thousand trees, one of them will wind up under the right tree even if his nose doesn't work worth a damn.

And that's my take on today's baseball.

As always, I am indebted to Aaron for speedily summarizing, snarking, and sending his invaluable Report on the goings-on at 1 First Street.

To quote another legal epistolary writer (Aaron Streett; the extra T at the end is probably for Terrific), "Greetings, sportsfans!" See here, for the first March issue of his periodic chatty Supreme Court opinion, order and grant roundup. I highly recommend it to all SCOTUS groupies. Prawfsblawg reprints them, but you can get them delivered straight to your inbox by mailing him at the link at the end of that post. Streett, an associate in Baker Botts' Houston office, provides all the inside baseball commentary one could want, in a breezy and entertaining tone. Oh look, there's links to all of them at Baker Botts.

Anyway. Hello to those who enjoy watching athletic events. How's your NCAA tournament treating you? Thought so.

I had an intention to write about Gender and Change in Heinlein's writing. So that'll be my next topic, because I think it's got more juice for me right now than the grim-seeming discussion of war crimes that I had planned. I'd planned to unroll that one in mid-August 2006, and then the topic so disheartened me that I went and did things I felt like doing more instead.

So: forthcoming, a discussion of gender-bending, gender roles, stereotypes, cross-dressing, a bit about sexuality (although that's not the focus), and gender as a mutable characteristic in the works of R. A. Heinlein. Because after all, if I can't write what I feel like, what am I doing out here in the blawgoverse, anyway?

Other posts I'm brewing up: a quick perusal of the controversial No Child Left Behind act, which has been heavily criticized as elevating testing, and particularly apparent improvement in testing, over real education, as well as skewing priorities in educating students - like, how much to test-prep vs. other skills, how much to the bottom quintile vs. the next vs. the next. My favorite example of unhappiness was the NY Times article about an excellent school that had been deemed a failure under NCLB. I might do a more searching review of what's being said about it. Wikipedia now notes in the No Child Left Behind Act article that "a new Congress has already started considering major revisions, as one group of 50 Republican senators and representatives introduced legislation in March 2007 that would provide states much greater freedom from NCLB's controls and punishments." - but as always, trust Wikipedia only so far. How do we KNOW that they introduced such proposed legislation unless we go looking through THOMAS ourselves?

Also, a possible HF post on addiction, and another on wealth and power.

Until next time, that's today's unused & unusable inside baseball! (Again, a tip of the imaginary hat to this guy.)

... and convicts when the case made by the prosecution is "overwhelming" despite having personal sympathy for the defendant. See NYT, March 7, 2007, "Libby Guilty of Lying in C.I.A. Leak Case," Neil Lewis.

One of the 11 jurors who spoke publicly after the verdict said that there was great sympathy for Mr. Libby in the jury room, but that the case presented by the prosecution was overwhelming.

Of course, the line "The verdict meant the end of a nearly four-year investigation into the leak of the identity of the Central Intelligence Agency officer" was quite incorrect. The case isn't even over. The jury's duty has been completed, but as the article makes clear, the action continues.

Counsel for the defendant will file post-trial motions to grant a new trial, and will seek appellate relief when that fails (as is likely). Before that, the sentence needs to be handed down, on June 5. The article quotes uninvolved experts as estimating a Guidelines sentence of 20-27 months, but of course in the brave new post-Booker world, the Federal Sentencing Guidelines are advisory, not mandatory. A departure (upwards or downwards) does not have to be justified by extraordinary circumstances. However, most Circuit Courts of Appeal have been far more willing to approve upward departures than downward departures, looking at the latter with great skepticism and reversing such sentences, stating that the sentencing judges did not give adequate reasons for the departure. Upward departures, meanwhile, are routinely approved as being reasonable. Doug Berman of Sentencing Law Prof has done so much good work on the issue that it's unnecessary to marshal up the evidence on one's own. See, for example, this post, in which he notes the Fourt Circuit's reversal of an upward departure:

"This is a noteworthy event in part because it is a rare event," Berman posts.

And for his useful collection of links of interest on those who wish to handicap the Libby sentencing, see here, with "On to Sentencing, Scooter!".

I'm not interested in gloating over Libby's downfall, but I do feel some satisfaction that a felony conviction came out of this investigation into one of the more public and shameful examples of treasonous politics ("So Novak's Talking: Thoughts on the Plame Mess" posted here on 8/1/05) in recent history.

Popping my head up. Several thoughts.

Happy New Year to those who celebrate starting tonight.

The new Heinlein/Spider Robinson collaboration is great. I'll have a review up shortly.

Heinlein Friday was driving me to distraction. For my own good, I'm suspending the practice, and substituting it with a new programme, tentatively entitled, "Post when you have something to say."

Linkage continues apace at my beloved Del.Icio.Us page, findable by typing http and then :// and then del.icio.us and then /eh_nonymous and then hitting enter, or touching return. Please do check it out - new (and old) links, webpages, and blogs appear there all the time.

Posner's a sneaky, sneaky debater. Check out this paragraph:

Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration. Maybe David Hume went too far (though I don’t think so) when he said that “The safety of the people is the supreme law. All other particular laws are subordinate to it, and dependent on it.” But I am not prepared to die at the hands of terrorists in order to defend the Miranda rule, or Brady, or Burton, or Mapp, or Doyle, or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

What's wrong with Posner's screed? Well, he's telling Geoff Stone (in a debate about "Not a Suicide Pact," his new book) that we mustn't be so fuzzy and abstract, putting a thumb on the scales of decision, and preferring civil liberties over other values.

In other words, you can't assume that privacy or individual rights or civil rights are of more value than something else, until you compare them.

Then Posner spins, spins, spins. He writes that he would rather be searched at random without a warrant than be killed by terrorists.

Well! Shut my mouth! Of course, I was thinking the exact opposite, that I'd prefer to die than have my liberties infringed!

Posner's disingenuous to write this sentence, because he's making a number of logical fallacies and he should by gum know it.

Appeal to emotion.
Red herring.
False choice.
Grave consequences unless you agree with him.

I know, I know, he keeps arguing, that's just the setup.

But he's still spinning, and increasingly wildly. Why not assume that violating my Miranda, Brady, Mapp, or other rights will *not necessarily* be more likely to preserve my life, unless there's some evidence for it? Instead, Posner assumes, as a default, that every limitation on freedom, liberty, and individual rights will result in greater safety. If safety is an overarching value, as he says, then the inquiry is over.

He is putting a rabbit in the hat. The rabbit is that safety always trumps. This is precisely the kind of failure to reason and pragmatically compare which he accuses Stone of. Consider Kip's vitriolic (and entirely deserved) scorn directed at subway searches in New York City, as presently laid out. We lose freedoms; we gain nothing. There is NO POSSIBILITY that those (ought to be unconstitutional) searches can deter, vex, or obstruct terrorists. There's no barrier. There's no benefit - and when there's no benefit, it's hard to do a CBA (cost-benefit analysis) that concludes anything other than the practice is a waste of time.

See Kip's posts here: Circuit Court upholds worthless subway searches and the linked posts at the bottom.

I'd have more scornful things to say about Posner, but others are doing a fine job. He's a shrieking hysteric, and it's disturbing that he's prejudging outrageous actions to be fine and dandy - as a legal and as a pragmatic matter - in the fight against terror.

Consider his hypothetical example of assigning an FBI agent to follow each and every Muslim, on foot. I wonder, though, why that would provide any benefit, as some terrorists are not Muslim. Better, perhaps, if he recommends a policeman stand behind each of us, with a loaded gun. That might achieve his desired goals better. But he is just mentioning it to show that it would be legally unproblematic.

Of course it might be, you ninny, if you formulate it wrong - care to ask a civil libertarian if it's unproblematic? The problem's not whether a particular right is violated, although that's there too, potentially. It's that it would be completely useless, and thus not even bear a rational relationship to the goal to be achieved, viz greater safety. Argh!

Blogging goes through periods of varying frequencies, as with most aspects of life.

Sometimes, I post with a frequency which indicates a vast surplus of available time, available mental energy, or both.

Occasionally, as this month, my own self-imposed goals (weekly postings on Friday, at a minimum) aren't met because other rhythms have disrupted the schedule.

My vacation from Heinlein Friday will continue for another week, but its long-term status as a permanent weekly commitment is in doubt. I have more to write, but the very decision to start so huge a project as the Law of War post, which produced dozens and dozens of paragraphs with inadequate planning on how to tame them, has placed an unfortunate obstacle in the path of continued easy posts.

I may want to withdraw it, and prepare a more modest HF post. It wouldn't be the first time I've done this: my last major blawgging project was to be a Scalia Mega-Post, in which I dealt with each and every things about Scalia's jurisprudence (and personal style, and irritating statements) which annoyed or frustrated or infuriated or troubled me. As it turns out, that kind of project involves more than just brainstorming, writing, and collecting links.

To take on a really massive writing project, there needs to be some thoughtful editing, at the planning stage. What gets in, and what is excluded? What's the right order? How does one section relate to another?

I've seldom constructed such open-ended writing projects, and when I have, failure to adequately edit my own structure has been at least as big a problem as inability to find words.

I'm also better at starting projects than finishing them, but of course it's easy to finish a task when you can see its goal clearly and therefore understand the nature of the work that will accomplish it.

Writing a brief is easy by comparison. It's got to have the requisite pieces, to comply with the Federal Rules or local practice or the judge's orders. There's only one way to organize it - the right way, with first things first, all the necessary prefatory and preparatory announcements (introduction, statement of jurisdiction, statutes involved, etc.). A motion for class certification has a form that's virtually pre-ordained, just because it has to comply with Rule 23, or its state law equivalent - see the discussion in this long-ago post. August 5, 2005? It's been a while.

===================

What else is on my mind?

I try not to journal too much, this being a Blawg and all, but it's so pleasant to write down observations and get them out of the mental buffer. Nobody has to spend time reading about what my cat did today (she's nonexistent, so pretty much the same things she does every day, or rather doesn't do, or perhaps even doesn't not do). But some observations are worthwhilier than others.

Philadelphia's weather has turned distinctly dismal. Temps in the 80s or above (with miserably high humidity) have been replaced by highs in the low 70s, with a distinct overcast. Summer's over. The season has changed, and we can look forward to months of complaining and wishing it was unpleasantly hot again.

Politics in Philly is about to get increasingly unavoidable. I haven't heard from the Lynn Swann candidacy lately, but I assume he's still running against incumbent Governor Ed Rendell (who is married to Third Circuit Judge Midge - er, Marjorie O. Rendell). I haven't seen any lying commercials from Santorum lately - although I hear there's an accurate one going around about how often his Democratic opponent, Bob Casey, Jr., has sought different offices. Well played, Santorum campaign. Keep trying to distract us from the issues of character, philosophy, politics, trust, and substantive issues.

Philly car share, I can now report, is a lovely thing. It may not be competitive with Zip Cars or the other nationwide car-sharing programs. PCS is a nonprofit which (presumably for good and valid and insurance-related reasons) can't let you take one of their cars into D.C. or New York or Baltimore or otherwise outside the Area. But, I think it does finally eliminate the need of many students, many professionals, and most city-dwellers to actually buy, own, maintain, gas, insure, and find permanent parking for their vehicles. Google them if you're in Philly and haven't already considered joining. Many have - and many have sold their cars and finally rid themselves of that albatross, car ownership.

That reminds me, I can buy a new transpass today - why not be able to ride any bus OR check out a car with an hour's notice? It's affordable, as owning and insuring a car in the city isn't.

Life beckons, much as it intruded last week. Off I go, to face another long, dreary, wearying Friday, followed immediately by a three day weekend and then a four day week. Wait, that's not too cumbersome after all.

Posting will resume on or after the weekend.

Blogging goes through periods of varying frequencies, as with most aspects of life.

Sometimes, I post with a frequency which indicates a vast surplus of available time, available mental energy, or both.

Occasionally, as this month, my own self-imposed goals (weekly postings on Friday, at a minimum) aren't met because other rhythms have disrupted the schedule.

My vacation from Heinlein Friday will continue for another week, but its long-term status as a permanent weekly commitment is in doubt. I have more to write, but the very decision to start so huge a project as the Law of War post, which produced dozens and dozens of paragraphs with inadequate planning on how to tame them, has placed an unfortunate obstacle in the path of continued easy posts.

I may want to withdraw it, and prepare a more modest HF post. It wouldn't be the first time I've done this: my last major blawgging project was to be a Scalia Mega-Post, in which I dealt with each and every things about Scalia's jurisprudence (and personal style, and irritating statements) which annoyed or frustrated or infuriated or troubled me. As it turns out, that kind of project involves more than just brainstorming, writing, and collecting links.

To take on a really massive writing project, there needs to be some thoughtful editing, at the planning stage. What gets in, and what is excluded? What's the right order? How does one section relate to another?

I've seldom constructed such open-ended writing projects, and when I have, failure to adequately edit my own structure has been at least as big a problem as inability to find words.

I'm also better at starting projects than finishing them, but of course it's easy to finish a task when you can see its goal clearly and therefore understand the nature of the work that will accomplish it.

Writing a brief is easy by comparison. It's got to have the requisite pieces, to comply with the Federal Rules or local practice or the judge's orders. There's only one way to organize it - the right way, with first things first, all the necessary prefatory and preparatory announcements (introduction, statement of jurisdiction, statutes involved, etc.). A motion for class certification has a form that's virtually pre-ordained, just because it has to comply with Rule 23, or its state law equivalent - see the discussion in this long-ago post. August 5, 2005? It's been a while.

===================

What else is on my mind?

I try not to journal too much, this being a Blawg and all, but it's so pleasant to write down observations and get them out of the mental buffer. Nobody has to spend time reading about what my cat did today (she's nonexistent, so pretty much the same things she does every day, or rather doesn't do, or perhaps even doesn't not do). But some observations are worthwhilier than others.

Philadelphia's weather has turned distinctly dismal. Temps in the 80s or above (with miserably high humidity) have been replaced by highs in the low 70s, with a distinct overcast. Summer's over. The season has changed, and we can look forward to months of complaining and wishing it was unpleasantly hot again.

Politics in Philly is about to get increasingly unavoidable. I haven't heard from the Lynn Swann candidacy lately, but I assume he's still running against incumbent Governor Ed Rendell (who is married to Third Circuit Judge Midge - er, Marjorie O. Rendell). I haven't seen any lying commercials from Santorum lately - although I hear there's an accurate one going around about how often his Democratic opponent, Bob Casey, Jr., has sought different offices. Well played, Santorum campaign. Keep trying to distract us from the issues of character, philosophy, politics, trust, and substantive issues.

Philly car share, I can now report, is a lovely thing. It may not be competitive with Zip Cars or the other nationwide car-sharing programs. PCS is a nonprofit which (presumably for good and valid and insurance-related reasons) can't let you take one of their cars into D.C. or New York or Baltimore or otherwise outside the Area. But, I think it does finally eliminate the need of many students, many professionals, and most city-dwellers to actually buy, own, maintain, gas, insure, and find permanent parking for their vehicles. Google them if you're in Philly and haven't already considered joining. Many have - and many have sold their cars and finally rid themselves of that albatross, car ownership.

That reminds me, I can buy a new transpass today - why not be able to ride any bus OR check out a car with an hour's notice? It's affordable, as owning and insuring a car in the city isn't.

Life beckons, much as it intruded last week. Off I go, to face another long, dreary, wearying Friday, followed immediately by a three day weekend and then a four day week. Wait, that's not too cumbersome after all.

Posting will resume on or after the weekend.

To my disappointment, the Heinlein Friday for this Friday wasn't done yet - not even half done yet, which would have let me post Part 1, to be followed next Friday by part 2.

So, mea culpa, and let me just leave a few good links here as a taste of what I'm going for. The real HF will be posted... but not before midnight. Maybe not even before next Wednesday. :)

• Wikipedia "Laws of War"


• Fred (Slacktivist) on "You're Not Allowed to Kill Civilians"
  
  
  
  • the Title post
  
  
  • YNATKC continued (for those who didn't get the message after part 1)
  
  
  • Nagasaki - for those still unclear on the concept
  
  
  • Perverse Arithmetic - for those who eagerly look for permission from the prohibition
  
  
  • Terrorists are Bad - for those eager to hide behind labels, particularly when they are unfamiliar with history, war, or both
  
  


• Some links at my del.icio.us page on the Global War on Terror, starting at p.2, which includes some goodies. Of note: Neat Katyal's plea to finally start where we should have, and try courts-martialing detainees; Fafblog's biting satirical comment on the coordinated suicide of three Guantanamo detainees "6/10 changed everything!"; a guest post at Concurring Opinions about how a law clerk grew up, got appointed to the Supreme Court, and turned his former judge's great dissent into the law of the land, eviscerating a terrible precedent, in "Who's the Greatest Law Clerk Ever?" (referring to the recent Hamdan decision).


• The first page of same, which includes the intriguing comment by Prof. Gerber at Intel Dump that perhaps not trying detainees at all would be the right way to go. Why go with kangaroo courts, when you can just decline to try (or punish) them at all? I need to review this, see what he's basing his argument on.

There's lots to say - including about ongoing events, including political ones such as the defeat in Connecticut of a certain formerly Democratic Senator by Democratic nominee Ned Lamont, a rich progressive liberal who won because the primary voters were sick and tired of the incumbent's refusal to vote or talk like a Democrat on a wide range of issues. The first and foremost being the need to show skepticism towards whether the Administration should be credited with competence and good will in the war in Iraq, neither of which it has actually demonstrated. And, of course, the War In Iraq (is it Civil yet? Is it Accomplished yet?) is not really a front in the GWOT - until our leaders turned it into one. "Come on," he taunted.

The Vice President talks as if Iraq were part of the War on Terror. The Senator (soon to be former Senator) talks as if "terrorists" (meaning guerilla warriors, or meaning terrorists? Does he even know?) will take heart if we stop fighting the wrong war and begin fighting the right ones. Both ignore the reality that Saddam was not behind 9/11. Saddam cheered when Americans bled, but that's not enough; many of our enemies did. Anarchist fanatical theocrats have remarkably little in common with westernized despotic secular tyrants. And just where did Saddam purchase that poison gas he used on the Kurds?

Much, much more when I get around to it.

Welcome to the 9th Heinlein Friday! Well, sort of. I posted the first HF-related post on May 26th, announcing a "new recurring feature" - how prescient of me. There have been 8 substantive posts since then, on topics I listed in my last post previewing this HF, but I omitted two: the Judge Jones speech report, and the Science in Superman post.

Those topics, in no particular order, were: Aliens; Justice; Courts and Judges; Lawyers ("...beyond stereotypes"); Crime; and a special post on Jerry Was A Man, a short story involving a chimpanzee who would be human - or at least a person.

This week, as I discussed in my preview post, I'll be discussing "patents, trade secrets, and invention in Heinlein's fiction."

Inventions

Why?

Why bother talking about the ray guns and rocket ships in the (sometimes awful, sometimes talky/ preachy, occasionally disturbingly dated) science fiction of a Dead White Male?

Good question, insultingly posed. Let's break it apart.

Heinlein didn't do much with Ray Guns - although he had some fantastic weapons - see the opening chapter of Starship Troopers, which would make a fantastic movie - if only they would film the book, instead of a horrible soft-porn version from which all of the best technology has been deliberately clipped ("too expensive to create!") from the film. To quote a noted philosopher, "Aaaargh!" The Suits, which operate something like muscular exoskeletons plus heads-up-display plus skydiving-slash-submersible-slash-spacesuit-slash-weapons platforms, are the coolest military tech there is - and at that, Heinlein doesn't spend long on them. The opening pages, and then a subsequent mention or two later in the book about maintenance and training, and that's all. They're assumed, once described.

Heinlein also seldom did rocket ship - he preferred ships that either floated or went, ZAP, and the whole mass-reaction flaming-rear of rockets, while having the benefit of being possible "now," were always slightly dissatisfactory to him. Although see Rocket Ship Galileo. But his best spaceships were interesting. Consider:

Rides in Heinlein

1. Gay Deceiver, a heavily (post-sale) modified "duo" ("built on a Ford shell") - a duo being a car that could fly! - with extensive, expensive upgrades by a military-trained suspicious and survival-minded computer and software geek (and then a physicist specializing in N-space, and then his daughter with REAL ability in mathematics... and then they took it to Oz, where things wake up...)



2. the colony ship in Methuselah's Children, which depends on an invention by "Slipstick" Libby Long to escape the solar system and reach stars in less than lifetimes



3. the "UFOs" in Have Spacesuit, Will Travel, in which Heinlein used some impressive popular mathematics (in the plot of the story!) to prove that nearby space travel is feasible in terms of length of time - and to suggest that post-Einsteinian physics would make nearby interstellar travel equally feasible. Although the Real travel in the book is done instantaneously, or even FTL, by going not through space but "past" it - in the inadequate descriptions of English, rather than math.

Enough with the Ships and Weapons. Heinlein did a great job with ideas, when necessary backing them up with concrete and practical science and engineering - but the real excuse is to talk law. So, let's talk about the interesting stuff: IP!

As I said last time, Intellectual Property (IP) is like this:

instead of "owning" a house or a shirt or a wallet or a pile of sprockets, you "own" rights in the plans of the house, or the shape of the shirt, or the design of the wallet, or the name of your sprocket business.

Heinlein's got IP in the books, a-plenty.

Blockbuster discovery: "Let There Be Light"

Two scientist-inventors in this provocative early short story have a dynamite secret - they can turn light into heat (vibrations) - or vice versa - with an enormous, nearly 100 %, efficiency. That is, there would no longer be any need to manufacture light bulbs. Or inefficient solar cells. Or transformers. Or gas tanks. Or oil wells. Or generators. Or oil furnaces. This is, to put it mildly, the biggest potential discovery since the printing press. In fact, it probably outstrips the wheel, the atomic bomb, and the transistor quite handily. Their discovery, Heinlein coyly says, involves the enzymes used by the common firefly or "lightning bug," luciferin and luciferase, which create intense, nearly monochromatic (looks greenish to me) with almost no heat. How does a measly bug do better than humans with neon lights and LEDs? Well, maybe it no longer outstrips us quite so much. Any bioengineers know the relevant facts?

What do they do? Well, they're in trouble. Moneyed interests have no particular desire to see the utter destruction of a host of industries. Free power, as Nicola Tesla once learned, is not in the interest of each everyone, just every anyone. This can apply more broadly to all advances or potential advances - someone's ox gets gored. For Fantasy fans, I'd highly recommend Lawrence Watt-Evans' best-seller "The Misenchanted Sword," in which Valder the Innkeeper tries to place a convenient ferry across a river near his Inn, and finds that a torch "accidentally" drops off the toll bridge nearby, destroying his effort. He learns his lesson; the next torch, he notes, could have landed on his inn, and could have hurt someone.

The scientists are not so cowed - but they can't fight the powers arrayed against them. So they use the weakness of the powerful against them: they (spoiler)

Other works show different approaches to IP - and different Science Fictional twists on same.

Time Travel and Invention: The Door Into Summer

I wish I had time to spend a few weeks on this book - there's just so much! The protagonist, Daniel Boone Davis - "Dan" - is tired of life. At least, he's tired of life in the 1970s, set in the future in this book, after The Big One - which was a nuclear One. Life goes on, but certain areas are uninhabited, and the capital is no longer in Washington, D.C.

Dan is an engineer, and in the futuristic 1970s, he has invented a robot - a household robot, which can help do away with some of the drudgery of modern life, particularly in areas like housecleaning - where most of the poorly compensated, utterly necessary work still takes place for most families. This is a highly typical view of robots and technology - but it's not too far wrong. Some of my favorite Toys, today, are labor-saving devices. That, or they help me do things I can't do without them, like walking down the street talking to a friend, or sending a picture I took on my cellphone.

Dan, as I said, is tired of There-Then. He wants to go to Tomorrow. He's signed up for Cold Sleep (SF fans should consult Orson Scott Card's series about Hot Sleep, the Worthing Saga), and will wake up in 30 years - with all the things that make him sad over and gone.

Dan, the inventor, doesn't go quite as intended. He doesn't walk that plank; he's pushed. Meanwhile, it appears, his inventions have been stolen, and patents issued in his name, which he does not own.

In the futuristic world of the 2000s, things have changed. Heinlein lists advances in clothing technology (and Don't! count those as minor; ask any military clothing historian about the difference between a zipper on a battlefield vs. "those damnable buttons!" when you're under fire or in heavy snow), advances in dentistry, in movie entertainment technology (if "talkies" replaces "movies" - at least in theory - when sound became available, then can you picture what watching a "grabbie" will be like? I don't want to - I get carsick even in Universal Studio's Back To the Future ride). And, of course, in robotics and miniaturization.

Then Dan (spoiler, not hidden) finds something out: he can go back and fix the problem. He has a chance to try unauthorized time travel, and like many a protagonist, he does it, instead of worrying about paradoxes and the end of the universe. Maybe he's right to do that; maybe if you can do it, there's nothing unnatural about doing it.

So Dan goes back in time, and invents the inventions that he had just seen a few weeks previously, in the future ("later in time"). Here's where my head hurts: where did his ideas come from?

Pre-1970: Dan has ideas, and builds robots.
1970: Dan goes to the future, and sees robots, including ones based on his own ideas.
The future: Dan travels to the past, intending to build those robots.
1970: Dan builds the robots using then-existing materials, and drafts claims and descriptions in order to patent them. Then Dan goes "Back to the future" via cold sleep, and wakes up with All's Well That Ends Well.

So the question is: are his patents valid or invalid? The ideas came from him, essentially. The USPTO has no interest in where ideas come from, unless it's one of

1. from someone else,


2. from abroad, or


3. from nature, with no addition by you.

So maybe it doesn't matter; there was no prior thinker who had the idea (earlier in Time): Dan is both first to invent and the originator of the idea.

Incidentally, there's also some discussion of trademarks, since Dan has very particular ideas on what the name of the company should be and what the logo should look like. He wants it to look like what it will look like - and what would have happened if he'd decided he didn't like a Genie or the name Aladdin, and gone with a swoosh and the name Enron? Well, he didn't, so maybe it doesn't matter.

Incidentally, time travel is full of fun thought experiments for the Law. Consider: Can you rob yourself? What if you refuse to consent? What about seduction, marriage under false pretenses, rape? Crimes of violence? Property crimes? Can you sue yourself? If so, should you win?

Back to IP!

Friday: Shipstones and the Decision Not to Patent

In Heinlein's masterpiece Friday (not that everyone can stand it, let alone love it as I do), there are Things called Shipstones. Although this sounds like the word is based on a Thing, it is based on an Inventor - Mr. Shipstone. This pioneering sort educated himself in mathematics and physics, and then (paraphrased quotation) went into his basement and spent long years discovery applied facts about the natural world, which allowed him to invent the Shipstone.

Shipstones are as revolutionary a New Thing as the folks in Let There Be Light, above, stumbled on. With a miniature shipstone in your cigarette lighter, you don't need fuel. With a big one, you don't need gas for your car. With a number of enormous ones, spaceships Go - although I think these are also/alternatively atomic, at least in part - and they travel at supralight speeds, which can't be explained purely in terms of atomic power.

There's some fascinating historiography, and indeed muckraking history, as Friday reads about the invention. The result, she learns, is that everything in the entire world is owned, in whole, in part, or even overlappingly, by different arms of the Shipstone companies. They own Coke. They own Mastercard. They own the power companies, they own the banks - and they own each other, in an interlocking and stupendously sinister way. Not because it's not predictable - a good product displaces bad, and generates power and influence and above all money - but because it's kept relatively quiet. The Nations are no longer powers; non-state entities, including multinational corporations, can decide that a country should come to heel, and hire its own army - or its own terrorists. If you think I'm drawing a parallel, stop it. "Black Friday," which involves sudden, violent change, is not like 9/11.

It's much, much worse than 9/11. See this boingboing post from September, 2001, which mysteriously misses many of the most frightening similarities. Cities are blotted out. Methods of travel are sabotaged. Assassinations, on a global and coordinated scale never seen in history, occur. I don't ever want to live through one of those.

In any case, Friday reads two competing histories of the Shipstone invention.

In one, the Inventor is selfless, noble, motivated only by the quest for knowledge.

In the other, his wife Muriel is scheming, sophisticated, and informs him that he shouldn't be a fool.

Whichever may be the "real" facts (if either), the result is the same. The Shipstones are not patented. Neither, however, are they disclosed. They are simply - sold. This is the Trade Secret method of protecting an invention.

It takes brains to make a Shipstone, and power. If you don't know what you are doing, you simply break it - or blow yourself up. It's almost self-protecting, and there's no need for the Shipstone Companies to disclose in order to get the competitive advantage of monopoly. They just sell, at their chosen price, and the world buys, and buys, and buys.

Such a "perfect" trade secret is unlikely in the real world; most things are either capable of being copied, or can be reverse-engineered, since the biggest obstacle is always knowing for sure that something can be done. See, for example, the atomic bomb, and then the hydrogen bomb. The lag between seeing one demonstrated, and having one of your own, was on the order a decade, and need not have been so slow.

In any case, they chose not to take advantage of the Deal we offer inventors: disclose, and you have exclusive control over your invention until the term expires. During that period, you can do nothing; you can go into business yourself; or you can license. The Shipstones did not need to make that choice.

Finally, there's a few miscellaneous inventions I'd like to discuss.

Misc. Inventions

Dr. Pinero, in Heinlein's first published story "Lifeline," invents a blockbuster. It's impossible, alas, but it's an absolutely fascinating idea. What if a scientist could measure how old you were? (So far, so not exciting. Where you going with this, Eh?) What if, moreover, the scientist could do this by "bouncing" "sonar-like" "waves" back along the time dimension, following the skin-colored four-dimensional "worm" (picture a circle moving through space: a tube. Now picture a human moving forward through time: a human-shaped worm) back to where it began, at its inception.

What if, now, Dr. Pinero had invented a way to tell not only your duration-to-date, but your time of death?

What if the worm is connected both ways, in a concrete and irreversible way?

What if you are destined to die at a particular instant, and someone could know, and could tell you, right now, for money?

Would you pay? Or would you pay to *not* be told?

Consider, just to start, the consequences explored in the story: suddenly, every life insurance company is on the losing side of a bad bet, against people who can determine with 100 % accuracy when they will die. The healthy will not pay premiums. The about-to-die certainly will.

In reality, the insurers would leap up on this technology, find a way to charge for it, and would stop having to rely on guesswork.

In the story, Pinero refuses to deal with the slavering mob, and calls them fools. A more Galileo-like character I think Heinlein never wrote. The result is nearly the same - but more like Socrates' end, now that I think of it.

Heinlein, besides all the concepts described above, invented or particularly described a number of inventions.

For example,

He described the waterbed in such precise detail that it became unpatentable. An entrepreneur tried. His patent was invalid, having been fully detailed in a published work, Heinlein's. A later entrepreneur, working without the benefit of a patent, sent a waterbed to Heinlein in recognition and gratitude.

Heinlein's descriptions of spacesuits were so good, that when it came time for NASA to build one, they went back and read the SF - carefully. Water bottle? Check. Radio? Check. Tools on the outside? Check. How do you view readouts, how do you breathe, eliminate heat and wastes, how do you move with pounds of pressure resisting any bending of your arms and legs?

Heinlein also "particularly described":

• how to do childbirth if you have a convenient gravity manipulator (Time Enough for Love, Ace 1988, pp.203-04)



• how to use the word "grok" (see Stranger in a Strange Land. There's no copyright or trademark protection, alas, and patenting a word is worse than useless, it's unpossible)



• the waldo, an item utterly necessary for modern surgery and nuclear engineering, used by his character Waldo in the story, well, "Waldo." Waldoes are used to manipulate something you can't touch (too small, too "hot," too large) - you put your hands in gloves, which provide feedback to a different set of gloves, which are small/large/powerful/delicate/hardened enough to do the job



• what TANSTAAFL means. See generally The Moon Is A Harsh Mistress, as well as his later work The Cat Who Walks Through Walls, which some think is a Late Stinker, but which I like. The phrase is also significant there, late in the book. By the way, don't accept the alternate spellings. It's "There Ain't No Such Thing As A Free Lunch." Anyone who uses an alternate formulation would probably also say, "in their own words"

About 87 years ago our ancestors created a new country,
founded on freedoms
and dedicated to the, y'know, idea that all persons are more or less equal, give or take, know what I'm sayin'?

(Original; Wikipedia. Also see the brilliant Powerpoint Presentation thereof, which is startlingly bad.)

There is no need to shoot such people. It is wasteful, and makes a startling noise. (/RAH) Although if they're being funny, again see the Powerpoint slides, then it's really quite funny.

And that's all I have for this week's Heinlein Friday!

As always, I welcome input, feedback, and requests for future topics or stories to cover.

As I've got my act (more) together this week than last week, when I needed to make the HF post mostly not about Heinlein, and come out on a not-Friday (HF: Judge Jones speech report) - does that make it a non-H non-F post? - let's kick things off with a Wednesday preview of this week's HF.

So far, to recap, we've discussed

• Courts and judges



• Crime



• Lawyers



• Justice



• Aliens



• And there was a special post one week on Jerry Was a Man, which implicated humanity - implicated Being Human.

This week, I turn to another interest of mine: Intellectual Property. HF: Inventions will discuss patents, trade secrets, and invention in Heinlein's fiction.

Not all the inventions Heinlein discusses (or "discloses," or "particularly describes") are covered by IP. Intellectual Property, for anyone without a background is "an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form." (Wikipedia, which covers the topic nicely).

In other words,

with IP, instead of "owning" a house or a shirt or a wallet or a pile of sprockets, you "own" rights in the plans of the house, or the shape of the shirt, or the design of the wallet, or the name of your sprocket business.

These rights are different in some respects from Property Rights, which most people instinctively understand. If you own your home outright, only one person can be The Owner - sell it, and you no longer own. You can exclude others from entering (in general, with exceptions for emergencies, the police with a warrant or exigent need, etc.), you can let others in, you can allow others to trespass on your rights. And you can divest, as I said, by selling (or giving) your property away.

In intellectual property, you can do many of those things - but the law has to change, as always, when the underlying nature of the property alters. A song, for example, is not a fixed Thing until you record in some form (on a music sheet, or on tape, or in the head of a parrot) - at which point, there's a song AND a thing. The song can't be reproduced - it's a song. It can be imitated. It can be captured, replayed, edited, mocked. But the Thing can be copied, and copied, and copied - that's the nature of Things.

IP sometimes lets you prevent people from copying Things, and also sometimes from copying the Idea expressed in the Thing.

Heinlein didn't usually spend a lot of time discussing all this, the policy and nature of IP. But he certainly used it.

In "The Door Into Summer," the entire plot hinges on patents. And not in a normal way - TDIS is a time-travel story, with at least one paradox or bootstrapping problem. In other science fiction, authors (who often understand far too little biology) may ask, what if you go back and become your own grandpa? (Cf. the song - also note that things are different if a woman goes back and becomes her own grandmother.)

In Heinlein's book, Dan patents a design - but he does it after he's already seen it invented. This convoluted result is one of the things I'll discuss for Friday. The story also contains IP fraud, trademark issues, brand naming, and various new inventions, including Stik-Tite (think velcro on steroids), and "grabbies" (think movies, then extrapolate - they "null the theater on some shots" so "buckle your seatbelt").

Other stories I'll discuss include "Let There Be Light," "Lifeline," and "Friday." But you'll have to come back on Friday for the rest.

And since I've got your attention, and did this before, let me take one more opportunity to flog my del.icio.us page. It's HIGHLY linky, it's got my commentary, and it's much more categorizable (and categorized) than any blog. It's only bloggy in two ways: Newest added entries are at the top, and I post new (and old) links frequently with a note or a description if needed.

I preempt (preemptively!) this week's Heinlein Friday, the recurring examination of the fiction of Robert Heinlein through a legal lens, to bring you...

Speech Report Thursday! Okay, that's a weak title. Let's just call it Heinlein Friday on Thursday (HF on Thu).

The reason for this unusual (and heretofore unprecedented) interruption in the Normal Series of Things is that I bring you a firsthand report on a speech by famed ("conservative, Republican, Bush-appointee") U.S. District Court Judge John E. Jones III, of the Middle District of Pennsylvania, known far and wide as the "Intelligent Design Judge," because of his role in overseeing the bench trial (no jury) of the Katzmiller v. Dover Area School District case.

If you need background, the Wikipedia page on Katzmiller should have all you'd ever need. I mean, it is extensive. Readable, too.

Why is Judge Jones now a touring celebrity? In part, it's because of the enemies he has made - and what he has chosen to do about it. And that will, in due course, bring us full circle, to my reason for making this Speech Report a HF on Thurs.

Judge Jones' speech

Site: Conference Center, the Wanamaker Building (Emporis link, images, the Man Himself, John Wanamaker)
Invitation from: Judge Denis P. Cohen (although he says the idea originated with his co-chair) of the Professional Responsibility Committee of the Philadelphia Bar Association.
Date and time: Wednesday, July 19th, at lunchtime.

Subject (as freely interpreted by me): The Role of Judges (and why Civic Education in this country needs help)

His honor thanked us for our welcome, and hoped he would give us some food for thought. He opened with a brief description of his recent (and evanescent) fame. He has received at least one death threat, as Judge Cohen noted in his introduction, but has also been receiving wide recognition and a great opportunity to speak about the topics of his speech. He disclaimed any intention of engaging in post-hoc analysis of
- the trial
- Intelligent Design, or
- his opinion

all of which he believes speak essentially for themselves.

He did noted in good humor that although judges mainly seek to be affirmed on appeal, should it come to that, he's one of the few judges whose trial opinions have been affirmed... by the Vatican. [See, e.g., MayerBlog, here: "Significantly, even the Vatican – whose hostility to science when it appears to conflict with religious dogma is well-known in Western history (consider, for example, the prosecution of Galileo by the Inquisition, for his 'heresies') – has recently recognized that intelligent design is not a science."]

Judge Jones issued a call to arms. He asked that judges, and lawyers, step up. The public level of understanding of basic civics, of the structure and nature of government in this country, of the purpose and practice of law and judging, is abysmal - and I'm not going to argue. A recent poll (avoid recent polls!) said that nearly 3/4ths of a recent sampling of 100,000 high school students had either no opinion regarding, or took for granted, their First Amendment rights.

That's bad, no matter how invalid the actual result might be. The fact remains that there's anyone out there who isn't exercised about the idea that the First Amendment is constantly under siege; that the powerful seek to stifle the voice of the powerless; that newspapers exist not at the suffrance but despite the active antagonism of monied and politically powerful interests (although they are themselves monied and powerful...).

Judge Jones's point is that we don't know what our liberties are, nor why they should be that way.

Judge Jones also cited the reaction of the punditry to his case. They're entitled to free speech, he argued, but in the absence of adequate education in civics and theory of government, the public is liable to be "whipsawed" - and whipped into a frenzy by people of ill will.

And what about those ill-willers?

Judge Jones noted what an honor it was to be called "fascist" by Bill O'Reilly; to be deemed "arrogant" by the Reverend, Pat Robertson; and to be described as "sticking a knife in the back" of those that brung him to the dance, by one Phyllis Schlafly.
His Honor also commented at some length about the abominable Ann Coulter's abominable new book, in which she takes time out, not to excoriate the law of the Katzmiller decision, but to engage in a prolonged ad hominem attack on those who support the result and on the Judge who penned it. He noted that she (accusations paraphrased, since it's my recollection of his quotation or perhaps paraphrase)

• called him a 'hack judge'


• called him a bastard Joe Wilson who merely "hasn't posed in a Jaguar outside the White House" - yet


• accused him of being as good an expert on the requirements of the First Amendment as Harriet Myers
  

(Bravo, Ann, bravo. You failed to mention the Lemon test (I'm sure you hate it, your idol Scalia hates it too), or the endorsement test (that awful Woman, Sandra Day O'Connor invented it - too bad she's more famous, wise, and beloved than you - I hope her next book does better than yours, as well), which are the governing tests that a judge must use, or be reversed, when analyzing a claim under the establishment clause of the First Amendment. You also lowered the discourse, Ann. Way to go. Twit. Well, I've already mentioned Ann in HF before. Twice. That's quite enough about her.)

Judge Jones argued on three interrelated themes

- Judges perform their duties in a "workmanlike" way (with a hattip to Judge M. Rendell (3d Cir.) who used the word as well)
- Judges are bound by precedent, must obey the rule of law, and do not do their jobs in an ad-hoc fashion, constrained only by their own wishes, and by putting a finger to the wind of public opinion to see which way it blows
- Better education, of the public and the media, would help preserve judicial independence and respect for the rule of law. Here, the comment was that we (as the legal profession) should put a face on the Judiciary, and answer critics.

On the education front, as noted above, he emphasized civics. He called for better government classes. And he noted that history is important; although the public is "yearning" to have a reasoned public debate, they are too likely to believe the last hysterical pundit they heard. "Civic Stupidity" is a term he used.

And that, finally, brings us to Heinlein.

Judge Jones noted that if you don't know your history, "You're gonna get rolled."

This echoed Heinlein's statement about knowledge.

The three-legged stool of understanding is held up by history, languages, and mathematics. Equipped with these three you can learn anything you want to learn. But if you lack any one of them you are just another ignorant peasant with dung on your boots.

That is, if you can't count (or do some serious math), you have to take things on faith. If you don't speak the language, you're a provincial ignoramus who doesn't even know their own language, let alone what almost everyone else speaks (that is, "something else"). And if you don't know history, it's not just that you are bound to repeat it; you are doomed to fail to learn from the grand mistakes of the past.

You are doomed to be historyless - to lack identity, self-knowledge, a basic understanding of what even is. If you don't know when World War II was, give or take, how can you understand what Germany is like, and why Japanese-U.S. relations are the way they are, and why we are scared of WMDs? You can't pick this stuff up by watching all-news networks. You have to actually study, read, or learn things.

Same with math, and with languages. Translations aren't enough. If you can't even figure out how your taxes are calculated, you're going to get rolled. If you take their word for it that the scary foreign leader is saying "We will bury you!" rather than what he actually was implying ("We will outlast you!"). Math and foreign languages are the way you interact with the real world. History is the context into which all facts must fit - because if it's not accurate history, it's not about the real world, about the facts. It may be important - may be culture, society, shared beliefs, faith, morality, or an entertaining story (Superman!), but it's not history.

So Judge Jones, like the Dean of SF / Grandmaster himself, is urging us to Do Something - fight back ignorance. Encourage civic understanding. If you're a lawyer, go into a classroom. If you're a judge and your ruling (or integrity, or impartiality) are questioned and there's a teachable moment, don't remain silent.

The Old Way, Judge Jones said, was that judges would issue their opinions and then "batten down the hatches," and wait for it to be over. Jones, while denying he makes his decisions with that finger in the air, is a consumer of the media. And as such, he wants to fight the impulse. When you have an impulse to speak up, he suggests, speak up. Speak out. Within the confines of ethical rules for judges, take a stand against the pervasive, and perverse, rantings of the punditry. "We did not check *all* our First Amendment rights at the chamber door" when we became judges, he notes, paraphrasing the language from - is it Tinker, or Hazelwood? Too tired to remember. Hopefully one of those pages says.

And since he has a bully pulpit, he is taking a stand against the "deliberate inaccuracies," "cartoonish" and "outlandish" portrayals of law by Ann Coulter and others, foisted on an uninformed, ill-educated public.

Two last notes on his speech:

Judge Jones says his greatest regret about the trial is not allowing cameras in the courtroom - because the lawyering was so superb, so unparalleled, and you can't just tell someone to read about the case - "you had to be there." It would have been an outstanding civics lesson, he believes.

And, he favors civility between lawyers. The "knife fights over discovery," and "flaming arrows back and forth," he treats as he would a childish tantrum. A time out, and zero tolerance.

And that's it for Heinlein (Thursday)! Stop back next week, when we return to our regularly scheduled examination of science fiction.

Sensationalistic? Purposely filled with violence, gore, and sex?

Well, hopefully. Otherwise, this is going to be a fairly tedious post. Actually, upon review, there's no sex. That's not a comment on Heinlein. Heinlein was a very sexy writer, at times. At other times (like when the Boy Scouts were publishing the material), not so much. And there's plenty to tut-tut about, if you're into that kind of thing. I'm not particularly into tutting. We'll leave Sex and Law in Heinlein for another time.

Following my ambitious boast in yesterday's preview, HF Pending (And no more Jots), I'm going to discuss

Science Fiction Crimes

in Heinlein's stuff. Stuff being broadly construed, and referring here to his books, short stories, and writings generally.

Follow me then, deep into the tangential plot details, past the thicket of uncertain meaning, your only guide the mind of a lawyer (no, don't turn back!) - to our goal: Real Crime! Ripped from the Headlines of - not the real world, that's for certain.

First, let's do some definitional work.

I'm not going to discuss civil litigation in Heinlein. I've mentioned some of the more dramatic instances, including last week's post on the short story Jerry Was a Man, in which a genetically modified chimpanzee brought suit in his own name ("Jerry," if you're wondering) and asked the court to declare that he deserved a basic amount of dignity - which implied, for example, denying the corporation that created him the right to euthanize him, and by extension those like him. If you're curious how the suit is resolved... and you haven't noticed the title of my post or the title of the story yet... I reveal it, behind spoilers, in the post.

There's also the various proxy fights, quasi-civil cases (see the case of Lummox, discussed in these two previous HF posts), and similar good stuff. In that second post, for example ("Lawyers Beyond Stereotypes," I mention I Will Fear No Evil's Jake Solomon and the case he brings on behalf of Johann Sebastian Bach Smith, whose brain has been transplanted into the body of his (deceased) young female secretary, Eugine Branca. A rollicking case. But not the subject of today's post.

We're also not discussing torts, like civil trespassing, nuisance, civil battery (including punching someone in the nose), or invasion of privacy; we're also not discussing cases involving property, real or otherwise. Property cases can involve inheritance (plenty of Will battles, as I noted in earlier HF posts; see Citizen of the Galaxy, not to mention I Will Fear No Evil, supra). I'm definitely going to devote an upcoming HF to patent law and trade secrets; there's a wealth of good material there for IP (intellectual property) geeks.

What is a crime?

We're going to have to get a bit stuffy and formal here, I'm afraid.

Crimes are forbidden acts, committed by actors. Extended legal discussion follows:


How might a sci fi crime play out? Well, ideally it's not just another boring murder mystery where the deceased is an alien, and the locked room is a locked room, and the detective has two heads. If there's no reason to make it a science fiction story, tell it straight. See e.g. Watt-Evans' Sixth Rule of Fantasy.

A crime could be

- an act not forbidden under law as we know it ("No time-traveling back to shoot your grandfather; it's a form of suicide")
- an act "committed" by science-fictional means ("And then he lifts up the gun with his telekinesis, and teeks the bullet right into the other guy!")
- committed by a "person" who is science-fictional (alien, computer, disembodied...)
- committed in a science-fictional setting, where the rules (indeed, the laws of nature or the amount of gravity) could be totally different.

Isaac Asimov played a lot with murder mysteries; Larry Niven the same. But Heinlein usually wasn't as focused on the murder, as on the rest of the plot he was telling. "The Cat Who Walks Through Walls," for example, one of my most favorite Heinlein books (despite its detractors), begins with a murder, and ends with (spoiler!) the death of a cat, not to mention the protagonist and his spouse. Apparently. Everyone (except that first corpse) is resurrected in the next book, and on the fun rolls. The murder is not punished at all, or indeed discussed for hundreds of pages. Yet, it is a key plot element; it sets all other events in motion.

Let me restate (some of) the possibilities.

• Crimes with impossible acts


• Crimes in impossible places


• Crimes committed by impossible people.

I particularly like the first one. It's not generally speaking possible to commit a crime by taking your own possessions. The elements of the crime of theft (or larceny) are that the actor must have deliberately taken without permission the property of another, intending to permanently deprive the person thereof. But could it be a crime to take your own possessions, without permission? See "By His Bootstraps," and "The Door Into Summer."

Impossible places: This includes outer space, which exists but which is not currently inhabited beyond high Earth orbit, and Venus, which is not nearly as Heinlein depicted it back in the 1960s and earlier. The Wiki article on Venus notes that the 1962 space probe Venera I was the first to reveal that the surface of Venus was a balmy 425 degrees Celsius, or hot enough to ruin a pizza - or your day. Pizza-baking occurs at 425 degrees F - or about 235 Celsius.

Impossible people: Is it a crime to steal, if you're a computer? Don't ask Mike, aka Mycroft, the H.O.L.M.E.S. IV computer that runs much of the infrastructure in the Moon, in The Moon Is a Harsh Mistress. He plays a few gentle jokes, like the following exchange between Manny (Manuel Garcia O'Kelly Davis, the narrator) and Mike:

"Mike, why did you tell Authority's paymaster to pay a class-seventeen employee ten million billion Authority Scrip dollars?"

"But I didn't."

"Damn it, I've seen voucher. Don't tell me cheque printer stuttered; you did it on purpose."

"It was ten to the sixteenth power plus one hundred eighty-five point one five Lunar Authority dollars," he answered virtuously. "Not what you said."

"Uh . . . okay, it was ten million billion plus what he should have been paid. Why?"

"Not funny?"

"What? Oh, every funny!"... etc. Text gakked from this sample chapter, probably a copyright violation but it's not my problem, my use is academic and not commercial, and would fall under fair use.

Has a crime been committed? If a human did it to enrich himself, there certainly would have been. Uttering a false check, maybe embezzlement, fraud, grand larceny on a scale never attempted before by a human being. Something.

Same kind of question, different crime: What if the "actor" is an alien for whom humans are subhuman or even lunch? For both sorts of alien, consider my post on Aliens, Combatants, and the Other. If there's something that's godlike, then what is man to It, that It should be mindful of us? And if it's a predator and we are Soup to it, then how are we going to punish it under our laws for doing so? The most we can do, is kill them - if we can. The Moderator, of course, might have the power to adjudge a species to be a threat, and take appropriate action. But again, if it's just us, vs. superaliens? "Mice voting to bell the cat," is what Wormtongue - oops, wrong Ficton. I mean "Wormface" - said. More accurate when it's humans trying to outlaw eating us, as opposed to the Three Galaxies who decide to pass the ultimate sentence on Wormface - and his entire race. They rotate his planet. See Have Spacesuit, Will Travel for the story behind that simple, chilling sentence.

Heinlein didn't spend as much time on bank robberies as Harry Harrison, of Stainless Steel Rat fame, has. He has fewer superdetectives than Asimov. There's nothing like Gil "The Arm" Hamilton's amazing third arm, or his or Beowolf Schaeffer's impossible crimes, solved by rigorous logic and luck and bravery in Niven's Tales of Known Space. But for all of that, there's some great crimes in Heinlein.

Murder - with a laser, or an exploding dart gun, or an H-bomb, or by "erasure."
Theft - is it a crime to steal a person, if the person is a computer, and the computer will be destroyed if you don't "steal" it?
Tax evasion - well, it's fun, anyway. See the trial in The Rolling Stones, mentioned in HF: Courts and discussed more substantively in Lawyers.
Assault - we discussed the "punch in the face" example, linked at the beginning of this post.

Got any more favorites? Note them in the comments, please, and I'll update the post.

And that's it for this week!

Check back next week for another installment of Heinlein Friday. I believe I'll be taking up patent law, in connection with The Door Into Summer among other stories.

(Heinlein) Friday is just three hours away, so keep your eyes (or RSS feeds) peeled. In other news, I've had it with Jots. It was a noble experiment. I'm fed up.

My new non-blawg links collection is available here: My del.icio.us. I have 80 links posted so far, none duplicative, and they're neatly categorized (and cross-categorized). They are not, alas, saved cached versions, so the expiring pages (like my most recent addition, Jeremy's brilliant WSJ op-ed piece) will someday no longer be found at the addresses posted.

As most of you know already, delicious (I'm tired of putting in the dots, please assume them) is a wildly popular site that takes advantage of collaborative tagging. See the Main page (clever use of the .us suffix, no?) for more.

I have other useful pages elsewhere, besides this blog, and the previous iteration of this blog: There's also my Wikipedia profile (minimal, to say the least; Wikipedia isn't about the User, it's about the Project), and as I've noted previously I also am a big fan of Bloglines, so I have a Bloglines subscription (free) which aggregates my favorite feeds. Check it out by clicking here.

The upcoming Heinlein post will finally get to one of my favorite topics: Science Fiction Crimes! After all, if a story doesn't have a science-fictional element crucial to the story, it shouldn't be set far in the future, or under the blazing twin suns of Fomulhaut VII, or anywhere other than in a standard contemporary setting. So if a story is appropriately set in a what-if ficton, and there's a crime, it's much more interesting if it's not a normal crime happening to normal people who happen to live in a futuristic or high-tech setting.

The best part of the intersection between Law and Heinlein: coming up next, in the sixth Heinlein Friday.

See this morning's post for the intro to this week's Heinlein Friday, or the previous posts in the series, linked at the end of this post.

"Jerry Was a Man"

"Jerry Was a Man" was copyrighted in 1947, according to the Wikipedia stub entry on the story. The somewhat longer stub about Assignment In Eternity, the collection in which it appeared in 1953, notes that three of the four stories in the book "contain speculation on what makes one a human" but that only "two of those depict potential for evolution into a superior form of human" - a subject which is decidedly not the topic of JWaM.

The Wiki stub on the story accurately sketches the most basic plot summary, but in noting that the early work had features that would echo in later stories bizarrely draws a parallel to The Moon Is a Harsh Mistress rather than to a number of more apposite stories. Let's deal with those first.

JWaM: Foreshadowing of later RAH works

As the stub says, the shyster (thus called; it's his job description, and on his card) who is recommended (or located) by Mrs. van Vogel's regular attorney, is "splendidly drawn." By this, I assume was meant that he is colorful, irascible, competent, and unethical in the conventional sense. In these features, he exactly mirrors his counterpart in Citizen of the Galaxy, described at some length in the prior Heinlein Friday post, Lawyers Beyond Stereotypes. The shyster, "The Real McCoy," care of the "notorious Three Planets Club," is not a stereotype - but he may be an archetype. That is, he is an "idealized model of a person, object, or concept from which similar instances are derived, copied, patterned, or emulated." McCoy is, in a sense, The Shyster.

As an aside, van Vogel's main attorney, Sidney Weinberg, is an interesting character himself. He is a respectable fellow; he is not a shyster, which as I said is apparently a distinct profession (or branch of the legal profession), with its own recognized specialties and rules. He "retains a staff shyster," I assume in order to best carry out the work he does on behalf of his client, but thinks it best not to reveal to her that he does so. When she needs one, however, he locates a "special shyster" who is willing to do the necessary, for an exorbitant fee. His interior dialogue on this subject is revealing, and implies a legal profession divided by type of work, just as the work appears to reflect the (pre-Federal Rules, i.e. pre-1938) traditional division between law and equity ("We are met today in the mellow light of equity, rather than in the cold and narrow confines of the law." Assignment in Eternity, Baen 1991, p.270). (Legal discussion follows...)


[the rest of this post technically was posted on Saturday; let's call it a delayed Heinlein Friday, ignore the back-dating, and leave it at that.]

More Foreshadowing and Echoes of Heinlein's Other Work

I'll briefly note three frequent features of Heinlein's work, and then move on to the meat of the post.

As in Citizen of the Galaxy and The Man Who Sold the Moon (wikipedia), a proxy battle is itself a proxy for a battle of wills, a central conflict in the story. In this case however, as in I Will Fear No Evil (see HF: Lawyers for discussion of proxy fights in RAH's books, and links for IWFNE), it is not a proxy fight over control over a company which decides the outcome, but rather a court case to settle rights and obligations under law.

Geriatrics, like genetic engineering, are far advanced in the story. The protagonist's regular lawyer is "respectable," as I noted above; he is also 125 years old and more, see pp.259-260. Compare Methuselah's Children, and all the other Lazarus Long stories, including Time Enough for Live, and To Sail Beyond the Sunset.

As in so many other stories, there is a depiction of an intelligent, affectionate pet - in this case, Napoleon the miniature elephant. Compare all the pets mentioned in HF: Aliens.

Like many other Heinlein plots, there's a court scene. See, well, HF: Courts. Heinlein puts an alien on the stand, a Martian who is expert at genetic modification and engineering. The Martian, no particular fan of humanity, moves the action forward by providing the relevant law - which in a real court case would usually be briefed by the parties, rather than dramatically revealed by a testifying witness. One exception might be when a witness is testifying as an expert, and his or her understanding of the relevant law, as applicable to the facts, is relevant to his or her testimony. In this case, however, although the Martian is an expert, his main function is to embarass his employer, which is the opposing party.

The Martian, like the more-than-human aliens in Have Spacesuit - Will Travel (see HF: Aliens, and the bit about the Moderator), indicates disdain for the backward humans. (See p.273, "The court discussed the idea of contempt briefly.") In the process, he draws an equivalence between Jerry, a genetically modified chimpanzee, and the apelike humans.

The Moral of the Story
Why'd Heinlein bother writing this story? What was his point?

He was exploring a very particular what-if, involving some of the deepest philosophical questions Science Fiction can wrestle with. What does it mean to be human? What counts? Where does personhood begin, and where must being a chattel [ed: apparently it's not "chattle" - who knew?] therefore end? Heinlein answers the question, in part, with Art. He also suggests that the ability and inclination to cheat (see p.264) is part and parcel of