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 being human. But his true answer, I think, is Emotion - the ability to experience, and communicate, the sort of feeling which humans interpret as unique to them. Whether this perception is accurate is beyond the scope of this post.... But I suspect that if we could prove that dolphins don't just hurt, but can sorrow, or that chimpanzees don't merely mourn, but can yearn, then we would have to consider altering laws governing (certain) animals.

I note that even in the story, the above-mentioned respectable lawyer cites to a landmark court case, see p.260, which provides supposedly apposite precedent. Its binding effect, of course, requires that a modified chimpanzee be equivalent to an expensive cat: a possession or chattel which cannot be wantonly destroyed if there is still value in the animal, as to some human. If a chimp is like a man, not like a cat, then the rule is distinguishable, and Jerry can at least have the right to be not destroyed - not because he is valuable (he is valued by Mrs. van Vogel, but cannot work because of his failed eyesight - I guess they didn't have Lasik(tm) in this future....) but because he has certain minimal rights.

As his trial attorney argues (note that Jerry no-last-name brought the case "in his own name," italics in original, p.268) that he would be entitled to certain perquisites of "humanity," as the Martian is, p.274-75. "Not for him to vote, nor to hold property, nor to be relieved of special police regulations appropriate to his group" - although how precisely one can have a "human" born and living in a country without having all the usual rights pertaining to personhood and citizenship I'm not sure - it could be legal, but it smells to me.

In fact, the entire sheaf of themes of personhood, "counting" as a man, and race in Jerry bother me a little. At one point, the (unsympathetic)
manager comments that "One Nisei farmer working three neo-chimpanzees can grow as many vegetables as a dozen old-style farm hands." P.254. There are too many things in that one sentence for me to unpack. What is Blakesly referring to? Should we picture Hispanic migrant farm workers? Jim Crow-era blacks? Slaves? No matter what the case, the racial luggage or should I say "freight" - of the statement, in the mouth of a minor villain, continues to puzzle me.

Heinlein's resolution is (spoiler)



If you believe that an animal does not merely feel, but that you understand and feel their feelings as a result, it is nearly impossible not to want to treat them as rough equals - even if animals have always been capable of substantially more than human chauvinists prefer to remember.

Despite the impressive and intricate abilities of animals, I have taken on some of Heinlein's extreme skepticism of the claim that humans are not in some important sense unique. Not, I think, because of his religious beliefs (as in divinity), but because of his unshakeable belief that there is something special about what humans do, in terms of thinking, creating, and feeling. If this belief proves false, then the mantle of humanity (and the protections that go with it) will in my view have to be enlarged.

Happy holiday weekend - this one's pretty special for us residents of Philadelphia. Saturday is July 1st (watch out for rising interest rates!) and Sunday is July 2nd, 2006 - the anniversary of the 1776 signing of the Declaration of Independence, 230 years ago this week, at Independence Hall at 5th and Chestnut Streets. The delayed announcement two days later gave many of the signatories time to travel to their home states in time for the Fourth, which is the Declaration's official date.

Before I launch into this week's Heinlein Friday (previewed here), let's quickly review what has gone before.

• Last week was Aliens, Combatants, and the Other.


• The week before, I presented Getting to Justice.


• The second substantive HF was Lawyers Beyond Stereotypes.


• The first HF post was on Courts.


• And, of course, there was the post when I announced the idea in the first place.

Many of these posts have been rather diffuse, as far as talking about any individual Heinlein work; usually I discuss at least three, and sometimes half a dozen different books or short stories.

This isn't the only way to do it - rather than talking about a common theme or a recurring feature, I could be doing in-depth book analyses or reviews. I plan to do at least one rather less superficial post on a single story, "Jerry Was a Man," as I mentioned last week and once before that. We'll let that wait for at least another week, though.

Now: on to Superman!

HF: Science in Superman?

What do I mean by that? Well, now that I think about it, this whole Heinlein Friday project begs the question: is looking for Law in Heinlein like seeking science in the Superman comic books or movies? Am I looking for Law in all the wrong places?

I think I'm not, just as there's some science in Superman - even if it is super-science. Where some comic books are pure fantasy, both X-Men and Superman have a veneer of science - the word "mutation" in the case of the former, and the extraterrestrial origin and explanation for Superman and his powers in the latter. Still, it's mostly surface, not real science.

Superman Returns is a wonderful movie. I'll put my overall comments in hidden text for those who want to avoid detailed reviews, but first I'll urge all of you who like That Kind of Thing to go see it. (some spoilerish reviews)


How's the science? Well, like Spider-Man 2, both movies contain a fantastic image of the sun - for SM2, in the depiction of the "fusion reaction" which Doc Ock has created, and for Superman Returns, when depicting the death of the planet Krypton. I presume both derive directly from SOHO images - check out the Image search results, but the links are great too.

Neither movie is about fusion or about stellar evolution, though.

One movie (Spider-Man) nominally is about mutation. I'll let that one go - the idea that being bitten by something radioactive can alter your DNA is ridiculous enough, but far enough beyond my competence, that I'll just note that it's not exactly scientific. Pseudo-scientific, perhaps.

Superman, as we all presumably know, isn't just Super-strong, Super-fast, and Super-good-looking. He can actually defy gravity - float in midair, fly faster than the speed of sound - indeed, perhaps fly "nearly as fast as the speed of light." He's practically magical. As I said before, super-science.

Is it a waste of time to look for Science in Superman?

I'd say no, it's not a waste. The physics of Superman are amazing. Eye-popping. Watch for the scene involving the next generation space shuttle - a timely feature, considering that countdown is ongoing for Shuttle Discovery's planned launch on Saturday! Check out the news for the latest. See also spaceflight dot nasa dot gov. As longtime readers know, I'm way excited about human spaceflight.

What's the movie got? Flying, with mass and momentum. When Superman flies fast, he's not just floating as if on a magic carpet, he's moving fast - but he is invulnerable. He can fly through buildings - but he's not omnipotent. When he saves someone's life, he has to take care not to injure them. The magnificent rescue scene involves a real flight emergency, with metal that shears, dangerous fires, acceleration forces, and a very scary ride for those lucky enough to be saved. It feels *real,* a touchstone for good physics in special-effects design, and in Superman, to quote the show Seinfeld from a rather different context, "They're real, and they're spectacular." - Sidra Holland, "The Implant." [Sidra, of course, was played by Teri Hatcher, who co-starred on the t.v. show Lois & Clark as Lois Lane, alongside Dean Cain.]

By the way, what's bad about Superman? Well, the law is terrible.

Law in Superman

What's wrong with movies nowadays? Why do they have to get basic legal stuff so badly wrong?

Lex Luthor is free in the movie, out of jail despite Superman's prior efforts to put him away. Why's he out? Because, quote, "the appellate court called Superman as a witness, and he didn't show up." Do I even have to point out how poor that law-writing is? I don't insist that they get relativity right (Superman was traveling for 5 years, ages along with the rest of the planet, but has gone light-years? Let it pass, let it pass), or anything tricky, but that's just nonsensical. If there was a retrial ordered, then Superman's absence would not set Luthor free. It would just require that his prior testimony be brought in some other way. In any case, there would have been so much evidence from other sources that the idea that Lex was out because Superman wasn't around is ludicrous.

Next, (spoiler warning)


What's the connection to Heinlein?

Is Heinlein a comic book? Is he just telling a socko adventure story, and the law's a sideshow? As I think I've been showing in these posts, sometimes the law is itself the point.

Heinlein traded in ideas, at least as much as in adventure per se. His starting point was "What if...?", and one of the ways to play with ideas is to imagine the legal system under a new strain, either technological or otherwise.

What if aliens were the subject of a lawsuit? What if there was new truth-determining technology in court? What if there was a different set of laws, morals, or customs in play?

Looking for Law in Heinlein, then, is like looking for the science in Superman - it's not the main point, but it's a rich source of teachable moments.

Heinlein was often showing law in operation, rather than telling us how law works - and the difference was that you sometimes had to work as a reader, actively turning dialogue by characters not necessarily interested in lecturing into a meaningful picture of what the society depicted is like. As prior posts have shown, some of the legal stuff is shallow or perfunctory. Other bits, however, have insightful or provocative views of and proposals for the law, usually told in an interesting and plot-relevant way. But watch out for For Us, the Living - it doesn't get more didactic and less interesting than that. I mean, you'd have to look to Ayn Rand to find writing as wooden and poorly executed.

Heinlein and movies

A brief note about Heinlein's work in the medium of film: Heinlein was the source of material for three distinct movies (or movie franchises).




Thanks for stopping by. Next week: TBD. Reader feedback, not to mention input on future topics, is welcomed.

For those who like this sort of thing (and I certainly do, see this old post at my former address):

The GU LC Supreme Court Institute's Final Report OT (October Term) 2005 has been released, and is available here (pDF, via SCOTUSblog).

I note that the statistics are not completely and utterly accurate; they list 0 Summary Affirmances without argument, when in fact on the final day of orders, there was at least one. Not that these affect the statistics.

Also (see p.8, or 6 of the document) the Ninth Circuit was far from the worst in terms of batting average.

The First, Third, Seventh, D.C. and Federal Circuit Courts of Appeals had a perfect .000 average, receiving zero affirmances, and some non-zero number of opinions vacated or reversed. None of those, however, received as many as four grants this term, and thus their low success rate (zero!) is understandable.

The Second Circuit, with 9 grants of which only one was an affirmance, appears to have done the most poorly.

The Ninth, with 15 grants (more than any other federal Circuit Court of Appeals) and only two affirmances, appears to have done second-worst. Again, this is not a reflection of quality of judging. It reflects primarily:

1. the sheer number of cases decided;


2. the cutting-edge nature of legal claims brought in the jurisdictions at issue (including New York and Los Angeles respectively for 2nd and Ninth Cir.s); and


3. the fact that most cases taken are not affirmed.

Also, Alito is not another (or a "Little") Scalia. He is almost worse. He is another (or a "Little") Roberts. Roberts created a quite unified, occasionally narrow court, more so than his predecessor. However, when the Roberts Court goes bad, it goes quite bad - Alito and Roberts, voting together, have helped accomplish some major harm on behalf of institutional, governmental, and conservative interests, at the cost of individual, criminal-defendant, and liberal interests.

Contrariwise, Roberts, sometimes with Alito, has at times helped accomplish some major renovations on other areas of law which have helped create areas of hope or at least clarity (less confusion) in ways that help individuals, criminal defendants, and some liberals, often coming at the costs of large institutions, the government, and conservative interests. So neither is really a naked partisan. They are both, however, conservative justices - not in the sense of limited-scope. In the sense of conservative-favoring-outcomes. This is due, as I think I've indicated, not to pure conservative bias in judging, but due to their ideological and methodogical biases. Your method of interpretation, and approach when considering a controversial issue, is often outcome-influencing.

Meanwhile, Justice Stevens issued the biggest blockbuster of the Term, with Hamdan, which presents either a major setback for the Administration, a blow against freedom in the Global War on Terror (GWoT), or some other possibility. Me, I buy the President's statement ("Bad people are not going to be let loose on the street") and discount the view that there will be no effect on Guantanamo or on the American prosecution of the GWoT.

Also, this is hilarious (Judging Crimes blog, "Does Scalia Believe in Anything?").

And that's the Word.

Contrary to my usual practice, this week's Heinlein Friday will issue later than usual, perhaps by 8 p.m. today.

This week, I plan to reveal the perhaps non-obvious connections between the new movie Superman Returns (it's great, by the way) and Heinlein's work. Heinlein worked on, or wrote the source material for, three movies: Destination Moon, Starship Troopers (and its sequels and spinoffs, I suppose), and Robert A. Heinlein's The Puppet Masters (long name used to distinguish it from a prior, unrelated movie). His books themselves, though, provide a more apt and more interesting comparison for the distinct and distinctive form of media - and sensation - that is the new Superman.

Also, check out this cutting and skeptical article at CSICOP, titled Critical Thinking: What Is It Good for? (In Fact, What is It?), by Howard Gabennesch [sic - the For was not capitalized in the original, it appears, despite the capitalization of Is and It. Highly irregular]. The article appears also in the March/April 2006 issue of Skeptical Inquirer.

To summarize: "critical thinking" does not mean "critiques of generally accepted institutions and norms. "Critical" means hard-headed, rational, and logical, not ideologically biased in a different direction. It is not "critical" (in the sense of critical thinking) to say that the cosmetics industry is a monstrous money-making machine which "perpetuates the myth" that older women are less attractive. It is critical, surely. It is not unbiased. It is also not necessarily an honest formulation. As HG suggests, a more critical approach might recognize that the cosmetics industry is a monstrous money-making machine which is both a cause and an effect of society's reflection of the fact that there is differential attractiveness of adult women with respect to age, due in part to biological differences, such as fertility and related reproductive (and thus evolutionary) advantages.

Also, as always, check out my Jots page for some of the best recent (and not so recent) links I've found, neatly cross-categorized for your reading convenience. And finally, check out the outstanding coverage of the wonderful result in Hamdan at SCOTUSblog. There are literally a dozen or more interesting end-of-term posts, particularly this one by Marty Lederman.

More to come!

Eh N.

Thanks to Stephen of Ephesis for voting in favor of this week's Heinlein Friday topic.

But primus --
Perpetual Plug (patent pending - perhaps) is a proprietary periodic procedure, pertaining to this PA practitioner's postings at 'Probably Unusable.' To wit: I urge any and every reader of this page to visit my page at Jots, which has a much higher links-to-text ratio that U&PU; I Jot things up to a dozen times a day (no guarantees), adding both new and old links; and even more than this blawg, Jots provides a fabulous way to bring up similar and related Jots. Here, I have categories (law; class actions; writing, words & language; politics & current events). Jots has tags.

I collect articles. I collect PDF-ed court opinions. I collect useful references, useful Blogs, timely news stories. I even locate golden oldies, stories and blog posts and pages, items of historical significance. Everything gets tagged, everything is therefore easy to find by descriptor. This post will be Jotted shortly. It's perhaps the most useful free web app I've ever come across;
Anyway, please do check it out. As I said before, "Read my Jots!"

Back to your regularly scheduled Heinlein Friday.

Despite the title, I'm trying to avoid being too political. (Politics hidden)
Er, right. Politics-free.

Let's talk about Alien Combatants. Actually, let's just talk aliens, first. Combatants second.

Aliens

Heinlein's got (at least) four categories. One's easy, another's also obvious, and the last two can be confused.

1. Pets
. Willis in Red Planet; Chipsie in Starman Jones; Lummox, sort of, in the Star Beast (see discussion of John Thomas in my prior three Heinlein Fridays, linked as always at the bottom of this post). In Starship Troopers, there is mention of a thing called a "neo," which is in a military K-9 unit. A neo, "a trained Caleb," is a modified doglike symbiote, who can talk, take orders, fight and if necessary die, in conjunction with its human symbiote. Each member of the pair relies on the other; a neo with a dead human is put down, out of kindness; a human with a dead neo is painfully rehabilitated and removed permanently from combat. Neos may be more partners than pets, I guess I'm saying. Pets are friendly; speak broken English; are loyal; don't worry about nuance; lack some feature of mature human adulthood. Willis is (spoiler)
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a larval form of Martian, and a royal princess - yes, Willis is a she.

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. Chipsie is a monkey-spider, with arms (opposable thumbs!) and the ability to speak, but lacking something in seriousness and focus. An immature personality. Lummox is (spoiler)
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also not fully developed early in the story, and the lack of arms plays a major role in the legal determinations of status (ability to speak plus ability to use tools = intelligence in that story, based on past experience with aliens - so I suppose telepathy plus telekinesis would do). It seems to me Lummox is also female and a princess, but I plain forget. The important part is, Lummox is overwhelmingly important to her people, who happen to be exceedingly haughty, very powerful, and entirely willing to wipe out humanity if it gets in the way. Or at least blow up our Moon.
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Pets are like Lassie, only from farther away, and they can talk. Pets are helpful.


2. Powerful or Predatory
. Wormface in Have Spacesuit, Will Travel. The eponymous Puppet Masters (the Titans - or wherever they're really from). The Bugs in Starship Troopers. They don't like us; they don't have much use for us (except as, respectively, available protein or a convenient host for domination and exploitation, for the first two). When we meet them, we are terrified. We would like to wipe them out, or try to - and this isn't a pity, like our predation of the dodo, or a malicious act, like with herds of Buffalo, or an accident, like some other animals I probably can't name without googling. Or checking Wikipedia. We don't coexist peacefully with powerful predators or pernicious parasites. Cf. Vermicious Knids (Described by Dahl, 1972).


3. Pals
. This is the first of two ambiguous categories. Pals are co-equals, or roughly so. We can hang out with pals; Pals don't eat us, slavishly obey us, but pals don't necessarily "get" us. We're buddies, not soul mates. The dragons of Venus in Between Planets, particularly Sir Isaac Newton ("shucks!"), and the Martians of Double Star (Wiki page), including Rrringriil, who unfortunately dies early on, because of a political disagreement. In a sense, Mycroft in The Moon Is a Harsh Mistress is a Pal. The trouble is, he often thinks like a human, but much better and faster than a human. That's not an alien. That's just a superhuman thinker. See John W. Campbell's definition of alien, below. Pals may be more advanced - Heinlein often assumes that other civilizations, being older than ours, will have more highly developed citizens, whether it be technologically or biologically - but they're about on a plane. We can disagree with them. We could kill them. We could befriend them. We like pals.


4. Paternalistic
. There's another category besides pet, predator, and pal. It's not always clear-cut which category an alien should be considered. Willis, for example, is a Martian; Lummox is a, well, Lummox. The Venusians (Little People) in Space Cadet seem small, harmless, and backwards. They are small, but not the other two. At one point, someone realizes wonderingly that the Little People can do room-temperature chemistry involving liquid oxygen, without big machines, without protective equipment. The Mother Thing, in Have Spacesuit, Will Travel belongs to a race that has a paternalistic relationship to ours. She watches over us; they study us, educate us, help us out - to an extent. They feel no loyalty to us beyond fondness, because they have higher loyalties. The Martians, of Red Planet or of Stranger in a Strange Land, or of Double Star (are they the same? I don't know for sure, and some of Heinlein's martians are definitely not The martians) are hard to get to know. They live partly in Another World - quite literally. Humans are only half-alive, by their standards, perhaps.

There may be other categories. Gods, perhaps. The Jokhaira (spelling?) in Methuselah's Children are...ruled over... by something Powerful. Maddening. Superior. Heinlein, by the way, was a deeply religious man. Or at the very least spiritual. Digression...
Ahem. Right. Gods.

What a piece of work is man! how noble in reason! how infinite in faculty! in form and moving how express and admirable! in action how like an angel! in apprehension, how like a god!

- Hamlet, Act II, scene ii.

I don't think Heinlein thought of Mankind as a "quintessence of dust," and preferred instead to focus on - yes, the Players. See id.

Well, now we've laid out categories for Aliens. What about Combatants?

Combatants

Some aliens are at war with us. Consider the Skinnies, introduced in the first pages of Starship Troopers (see Bugs, above, under predators).

Heinlein has Juan Rico describe them, saying "these geezers were humanoid" [ed: geezer as "fellas"? Interesting use. I've only heard it prefaced with old, expressly or implicitly], eight or nine feet tall, skinnier than humans, and had a higher temperature than humans. They "look funny" but unlike Bugs, they don't "make [him] queezy" (sic - and an odd spelling I think it is, too). (Ace 1987, pp.13-14).

(By the way, anytime I give page numbers in Heinlein, it's not a copyright date I'm citing. I'm referring to the edition I'm using so you could find it.)

Some aliens are secretly at war with us. The Wormfaces, for example, can be hurt, apparently, so they are sneaking in as they advance. The parasites in Puppet Masters are particularly virulent, and hide their nature to protect themselves, but also to make infecting and riding us easier. A placid potential host is a vulnerable host.

Some aliens would fight us over misunderstandings, but are not necesarily and intrinsically combative. See the Venusian Little People, and Lummox's people, mentioned above.

Most of these categories aren't so bad. What about humans?

Humans also come in categories of bad.

1. Invaders
. These include the Panasians of the artistically unsuccessful, unscientifically-racistly tinged Sixth Column (formerly titled the Day After Tomorrow); and the occupiers (whoever they are) in "Free Men," collected in Expanded Universe. Re. 6th Column, by the way:
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Heinlein acknowledged the source of the idea (John W. Campbell (1910-1971), the editor (sometimes called the "Father of Modern Science Fiction") who famously challenged his authors to write better aliens: "An alien thinks as well as a human, but not like a human" ). Heinlein also modified the idea, to make it less inherently racist. He also was unable to get away from the unfortunate, unscientific fact that races are not especially differentiable, by a ray gun or otherwise, because a "race" is a socially determined collection of attributes, and races are differentiable objectively chiefly by reference to a large population with a particular proportion of genes. Since a ray gun would not, no matter how superscientific, be able to deal with outliers or unusual individuals, let alone multiracial individuals, I choose to flatly reject the idea of a weapon that could selectively stun or kill whites and leave harmless asians, or vice versa. We're just not that different.
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Invaders are bad. See "Free Men," at p.212 ("World Unification" - do you suppose Heinlein didn't like the idea of a world government not under U.S. control? Look at "Long Watch" or Between Planets or Space Cadet for other situations when his antipathy to foreign rule comes out. And yet, and yet: note also that in Space Cadet, Matt Dodgson must tell his parents that if Iowa rose up in revolt against the order of things, and attempted to take belligerent action, the Patrol would respond, if necessary, with appropriate force - including with nuclear weapons, if necessary. Which, with the Patrol's superior tactical position (orbit), should never become necessary.).


2. Tyrants
. See generally Nehemiah Scudder, in Revolt in 2100, "If This Goes On." It's a religious tyranny; not particularly a better kind than others, Heinlein suggests. Scudder's version of America is repressive, virulently anti-intellectual, and depends on charismatic leadership with an Inquisition, backed by torture and death squads, to keep the populace in line. Americans don't like to be kept down - except when they acquiesce, because they like the opportunities cooperation brings. See the next category.


3. Opportunists
. Heinlein has plenty of scumbags. See "Free Men," noted above. See "If This Goes On." See anybody referred to as "Stinky" (or with the last name Burke) anywhere in his fiction: this includes a twofer, in "Stinky" Burke in Red Planet. There are quislings in every fascist society, Heinlein as much as says. Anyone willing to sell out their neighbor in order to get personal advancement or better treatment, might do so. Not by appeal to better intentions, but by ruthlessly punishing that kind of treasonous betrayal, can free men work to escape tyranny.

Again, I have to cave to my political urges, but again I'm putting it here in hidden text. Ann Coulter has the same kind of steely rhetoric. What she lacks, in her public persona, is moderation; wisdom; kindness; mercy; scientific knowledge; an acknowledgment of history beyond her own narrow-minded view of it; and morality. By the last, I mean she displays such an appalling lack of honor, a horrendous failure to avoid racist, anti-immigrant, un-American hate that she definitely falls on the Nehemiah Scudder (religious nutcase) rather than Heinlein Hero (scientifically rationalist, deadly, merciful wise empath) side of the continuum of human expression. Not that I don't wish I could disclaim her as human. She's certainly poisonous enough - her rhetoric is far more harmful than Osama bin Laden's. Why am I not crazy to say that? Because Osama personally directed the slaughter of thousands of innocents. (Bear with me here). But his ability to sway people is no longer dangerous. He can inspire his "troops" (or terrorists, I'm not picky in my terms here). He can order attacks. But I'm not scared; he's our enemy. We know that. He's easy to spot, check for the 6' tall diabetic with the beard. Ann Coulter's rhetoric, in contrast is strong, powerful, and growing in horribleness. See this previous Heinlein Friday, where I note that she is a "dangerous nutjob." At this point, Osama is a nutjob who has many people fighting for his view. Ann Coulter, in contrast, scares me. Osama can't get me, unless he's lucky. But if Ann grows in power and influence, she'll be able to get me - to get all of us. Ann Coulter advocates torture and killing of people like me. And she's not joking. Not ha-ha joking. See this post by Hume's Ghost, or basically anything at all about eliminationism at David Neiwart's blog Orcinus, to see what I mean. Uh, don't confuse him with this blog: Orcinus Orca Collective. He's a huge whale fan, see his posts on that, but he's primarily writing about protofascism, not plankton.

Now I've reached the end of my two chosen categories, Aliens, and Combatants, and I should write about the Other.

I don't really have time. Here's my brief thoughts, and we can go from there another time.

The Other

Heinlein depicts plenty of xenophobes. Start with racists, see Farnham's Freehold, which is apparently not a racist book but a book depicting and criticizing racism; nevertheless it can be very rough reading (for interesting facts about the book, see also the concordance). As the first linked review notes, there are black and white characters, and some act corruptly or immorally. Those who do not, are not depicted as evil. Hugh Farnham acknowledges the racism of his homeland, but is an individualist, and neither takes responsibility for what he does not permit, nor accepts what is unacceptable. His own objection is to slavery as an individual indignity, not to racism as a personal affront.

Heinlein has plenty of "stupid hysterical civilian" types in his books. Some are merely ignorant. Some are rabidly xenophobic. Lorenzo Smythe (Lawrence Smith), star of Double Star, hates Martians. Hates hates hates them. Cf. "I hated this movie. Hated hated hated hated hated this movie." Read the whole paragraph of the review. No, read the entire review. God Ebert's hilarious sometimes.

Lorenzo gets over his unreasoning fear, with the help of the Doc, who hypnotizes him. Other characters similarly deal with unreasoning fear: see Mr. Kiku, in Star Beast, who must overcome his own phobia tied to snakes.

Xenophobes who shriek ("Kill it, Harry! It's coming towards us!") are among Heinlein's least favorite characters. Insular, provincial types aren't much better. The groundhogs (Earth-dwellers who have never been Up or Out) who endlessly pester, prod, or persecute (sorry!) the Luna-tics who travel to Earth in "It's Great to be Back!" or the visiting representatives from Luna in The Moon Is a Harsh Mistress are typical. "Is it true," starts almost any inane or offensive question, "that all you people who live on the Moon...." (it's in the Moon, not on, they live in warrens, as I noted before, and no, they don't "all" do whatever it is. Anyway, get out of my face, choom, I weigh more than I'm used to and the air here is giving me a headache, it's so polluted.)

There's more to be said about Citizenship and Immigration and Travel in Heinlein. I'll say it in a future post. I also want to examine, as I earlier wrote, all the crimes Heinlein describes which could not occur today, in the world as we know it. Finally, I want to get down-deep into "Jerry was a Man," a short story with more than usual legal content. I also could have noted the story in my post on lawyers - but there's more going on there than that. Jerry implicates Heinlein's fundamental question, "What is it to be a man?"

That's it for this week, folks! Thanks for stopping by. Comments and e-mails are more than welcome, and are generally answered.

Our topic today leads straight into three questions.

1. What is justice?



2. Is justice what one person feels is just? Will vigilantism or other selfish action do?



3. How do you get to a fair result?

Heinlein answered these questions, and his proposed answers vary, are sometimes mutually incompatible, and are often wildly at odds with our own answers. [That alone needn't make him a libertarian, or a law-and-order conservative, or a liberal, or an objectivist, or a progressive, or a regressive, or a gun nut, or an advocate for harsher or more lenient treatment. All of which are beyond the scope of Heinlein Fridays anyway, as I have defined the project. Nevermind what his leanings were, let's talk about the answers he proposed.]

What's Justice?
Heinlein has an easy, quotable answer. In "Revolt in 2100," mentioned last time, there's a short story, "Coventry" (review). Coventry is reserved for those who breach that society's basic Social Contract, the Covenant. It is scientific, Heinlein informs us. It

was the first scientific social document ever drawn up by man, and due credit must be given to its principal author, Dr. Micah Novak, the same Novak who served as staff psychologist in the revolution. The revolutionsts wished to establish maximum personal liberty. How could they accomplish that to a degree of high mathematical probability?

First, they junked the concept of "Justice". Examined semantically "justice" has no referent - there is no observable phenomenon in the space-time-matter continuum to which one can point, and say "This is justice". Science can deal only with that which can be observed and measured. Justice is not such a matter; therefore it can never have the same meaning to one as to another; any "noises" said about it will only add to confusion.

But damage, physical or economic, can be pointed to and measured. Citizens were forbidden by the Covenant to damage another. Any act not leading to damage, physical or economic, to come particular person, they declared to be lawful.

So that's that, then.

My favorite line is the one following immediately after that quote: "Since they had abandoned the concept of 'justice', there could be no rational standards of punishment." Wow. Cesare Beccaria (Wikipedia entry) would be impressed - although I don't think Heinlein actually confronted Beccaria's theory of punishment, despite assuming its disproof. Well, it's science fiction, why not assume things.

So what's left? Do we fall back upon law & economics - or more accurately, purely economic remedies only, for purely economic harms - a proposition which troubles nearly every law student, who immediately realizes that dignitary harms, unmeasurable harms, and difficult-to-quantify harms, none of which have that so-easy price tag Heinlein describes, are perhaps the major vexing issue facing legal damages calculations. How valid can a system be, the student often wonders, if it can allocate damages for fifty crates of spoiled melons, but not if it can't deal with a lost limb, or a lost life - particularly a lost husband, son, wife or daughter, or parent.... [note: this isn't necessarily the real problem with the vulgar form of Law & Economics, which understands that non-economic things have value, but which all too often makes foolish or counterfactual assumptions about markets or about the rationality of actors.]

Was this Heinlein's one and only statement? Is the best we can do really just measure harms? Well, the 2100 proposal wasn't his one and only shot at the topic. It was a suggestion.

When I googled heinlein justice, the most common result was Job: A Comedy of Justice, which I noted briefly in HF: Courts. Was that title all he had to say? Is life but a joke, with unfairness abounding?

What can one person do, acting selfishly?

1. There is no justice but what we make for ourselves.



2. Do unto the other fellow what he would do unto you, but do it quicker.



3. Society's rules apply only until self-interest collides with them.

The above statements are not necessarily Heinlein's philosophy. Rather, they are statements of vigilantism, self-interest, and lawlessness.

Professor de la Paz, in The Moon Is a Harsh Mistress (see more on tMiaHM, below) is a rational anarchist, he says (Tor 1996, pp.83-85), and would agree with the third point, above - but for him, not for thee and me. He's remarkably civil and friendly for an anarchist.

Lazarus Long, the protagonist of Methuselah's Children and Time Enough for Love (see more on TEFL, below), is a survivor. He would most certainly buy into statement two, above.

Manuel Garcia O'Kelly Davis, the narrator of Moon, might well agree with number one - but not necessarily as a vigilante, so I'll discuss him later.

Is all this the best we can do?

Defending the Self: Time Enough for Love
Lazarus is the ultimate survivor. He walks right through social conventions, and indeed on out of society, when he chooses. If there's no door, he'll escape and make a run for it. Heinlein doesn't celebrate his lack of morality, exactly, but he does perhaps redefine morality and right action. There's certainly a lot of discussion of what kind of behavior leads to survival, and what doesn't.

Lazarus is most bluntly confronted with survival in TEFL, when he must, once again (For the hundredth, or even thousandth time? Not if we take the narrative of the Oldest Man, set far in the future, at face value) act quickly and violently to save his own life.

Lazarus and Dora are confronted, at their homestead far from civilization, by a family of lawless, violent thugs, the Montgomery clan. Heinlein writes the scene with dispassion and quick skill. Who does what when, in the action-packed denouement, is depicted much more neatly than through millimeter-by-millimeter adventure-style narration ("Diving under the bolt, he cursed and threw himself to one side, blasting away with his..." - that's not Heinlein's style). That glamorizes action. Instead, the violence is sudden, swift, shocking, and not very gory at all; Heinlein notes wounds, he does not linger over them.

The erstwhile aggressor, who suffers various indignities, including losing the fun of raping Lazarus' wife and killing them both, concurrent with having his suddenly-revealed weapon shot from his hand, and finally finished off without a trial, seems upset at this failure of due process. "You bastards! Never gave us a chance." Lazarus replies "Gave you lots of chance. You wouldn't take it." (Tor pp.323).

Should Montgomery have a trial? What for? He's like a Moussaoui, only he actually had his hands on a weapon. He's like Saddam, only there's no question he was an immediate threat. He's like some burglar (although he was invited in, because his group outnumbered and outgunned Lazarus), he's the guest who suddenly turns bully and threatens harm to the occupants. Do such deserve more than being shot down? Heinlein affords no respect to any alternative answer. But then, there *is* a right to use lethal force to oppose the same in defense of oneself and one's family, particularly in your own house, recognized everywhere.

But although it's an appealing, highly satisfying approach, it doesn't apply to all lawbreakers in all scenarios. Let's move away from self-defense, and look at vigilante activity in another context.

Going Judge: the Moon is a Harsh Mistress
Manny's not a very violent guy. He acts quickly in self-defense and to protect others shortly after the opening pages of Moon, but for much of the book he is presented as avoiding formality and strife, preferring his work, his select group of friends, and his family. He's the opposite of a politician, neither diplomatic nor particularly subtle.

In the Moon is a Harsh Mistress (my favorite book by R.A.H., by the way), things work differently than they do around here. At pp.157-166, Heinlein throws in a scene perhaps more shocking than all the talk and depiction of revolutionary activity that has gone before. He has a scene of law and order, in the Moon. (Sorry, not "on" the Moon; they've burrowed inside, built warrens. It's "in" the Moon.)

Manny stops by to see a Judge, his friend Brody, and finds him not in. He does, however, bump into a gang of youths, doing the simultaneously noble and adult thing of preparing to kill a tourist.

The tourist, a gentle Earther named Stu, has insulted a lady. The sociological explanations I'll let pass by, except to note that in previous Earth cultures, extreme scarcity of women has in my limited recollection led to possessiveness by men and then to commodification of women, who are not particularly freer because they are more coveted. In Heinlein's frontier/prison world, the scarcity of women combined with group sentiment has led to empowerment of women - "she chooses."

The youths, "good boys" in Manny's estimation, are about to impose a summary sentence on Stu: They are about to stuff him out an airlock. They are nervous, perhaps never having caused a death before, but know that this is how things are done. Stu is befuddled, unable to comprehend his danger. The boys have come to find a judge, to make it proper and legal.

Manny decides to "go judge," because it "troubled me to hear young people talk about eliminating a tourist." (So much for touristicide as a public service.)

Manny gets consent of all the affected parties - defendant included - and gets unanimous buy-in. He charges for his service - as high as the market will bear. Manny notes "I'm informal sort of judge" [sic; Manny habitually omits unnecessary articles] and sits behind Judge Brody's desk, putting on his plug hat. Then he holds court: "Court's in session," I said. "Let's have names and tell me beef."

Why does Manny do this? Because it's necessary to the plot? Sure. But what is his motivation in the scene?

Manuel has a sense of mercy.

Where Lazarus offers Montgomery no quarter, above, when the man drew on him in his own house, Manuel faces no such danger. Stu is not a threat, except to public order, and that only because he is a "new choom," unaware of the social rules he violated.

Manuel teaches the boys that they did the right thing by coming to a judge, charges them for it so they value it, tries to impart to them a lesson in wisdom and mercy, and sends them on their way. Stu he does not in fact sentence to death, only fines - heavily - to help teach him a lesson. This leads on to a discussion of TANSTAAFL, and on to a friendship.

So Manny's role, acting as a single individual to raise the local level of justice (tempered with mercy), is not that of the vigilante self-defender. He's a vigilante judge, who like a mediator depends on the consent of the parties for his jurisdiction, and then who like an arbitrator or judge issues rulings and fines.

Balancing wrongs: The Number of the Beast
(Thanks to Tenser, Said the Tensor for the suggestion).

The Number of the Beast is a much-reviled but highly worthwhile book: see, e.g., yet another highly critical review from 1981. My own personal favorite critical essay on the book, by David Potter, is posted at Heinlein Society. Potter posits that it's not a disaster at all but rather a giant practical joke and a how-to manual. As Heinlein explicitly explains, people (particularly critics) who fail to get the joke will wander around in a maze of their own devising and starve to death. In contrast, those who can read the words and understand them will immediately solve the puzzle. I admit I was puzzled by the book at first, but I never hated it - it's such an interesting story, with tons of wish-fulfillment and amazing forays into beloved works of fiction, for all that the plot is subordinated to the point, and that it's a talky book, rife with not only lots of sex, but lots of incestuous and otherwise shocking sex. Maybe it's less of a mystery why I enjoyed it.

In NotB, Heinlein depicts a society with radically different standards of justice and mercy.

In a brief, but brutally effective portion, Heinlein depicts a society in which they "Hanged All the Lawyers" - in 1965. (Fawcett 1980, pp.378-379.) There is no category of lawyers in the phone book - or presumably legal services, either. A note: Hang All the Lawyers may not have the meaning you think it means. See this (unfortunately all-caps) 1988 speech by Robert Peterson. I've placed the relevant excerpt here, swapped into lowercase.


In any case, someone seems to have taken Dick the Butcher literally.

Heinlein presents a hilarious (and presumably unworkably simple) alternative tax scheme, a head tax plus real estate taxes, both paid to the State. The twist is that all valuation is done by the owner - but that there's no right not to sell at the valued rate. Kelo v. New London? The narrator for that chapter even says so: "This strikes me as loaded with inequity. What if it's a family homestead with great sentimental value?" (P.378-79).

But the most dramatic legal difference is Balancing.

When the person who committed a crime is caught, they don't appear to have trials. They don't appear to do imprisonment. What they do is they Balance people (or situations).

What's just? For an arsonist who kills someone, to burn them to death. For a poisoner, to kill them with poison. Drunk drivers who recklessly harm others are harmed themselves, in an identical way.

This is a crude sort of justice, by our standards: a literal eye for an eye, although I am given to understand that the modern, progressive, merciful way of interpreting those lines was that it was a big step up from retributive killings whenever honor was insulted ("The most you can get if you're embarassed but not harmed is less than death") - plus I'm familiar with the liberal or even pacifistic gloss, "An eye for an eye leaves everyone blind." This is more in line with Jesus's own teachings, I'm given to understand.

Does it work? Well, I sometimes enjoy vengeance fantasies. I imagined that Ken Lay, who perhaps without intent to harm others, but nevertheless proximately and directly caused vast, irreparable harm to thousands upon thousands of employees, would be Balanced. If someone lost his house, perhaps Lay should lose the benefit of the Florida homestead rule. If someone became homeless, I dreamed, so should the Enron and Andersen criminals who caused it. (Note: As I've argued before, I'm not sure Ken Lay committed any crimes besides financial ones involving loans and fraud; I'm not sure he knew of the extent or nature of the Enron fraud, or intended to harm anyone. But he was convicted, because he lost the battle for credibility.) If someone died of hypothermia because they couldn't afford to heat their home...? Murder charges? Too extreme? Maybe no proximate causation.

Here was my logic: An intentionally criminal act, taken with conscious disregard for the wellbeing of others, and with recklessness as to the possibility of destroying the firm, losing the 401K money invested for the benefit of blameless employees in Enron stock... (There's a brilliant idea. I'll hedge against the company going out of business and firing me by having a pension and savings plan, which will be entirely invested in company stock... which will become worthless if the company goes out of business... sometimes the failure of Congress to require diversification makes me mad.)

So there's a certain rough justice suggested by Balancing. But would it work?

What if you don't know who did it? What if someone's wrongly identified? I'd rather have a lawyer for myself, if wrongly accused - or even if accurately accused. And so I'd rather have lawyers, to protect and vindicate the interests of defendants as well as victims and society.

As to the punishment itself, while I think it could conform to the Bible, and thus probably pass Scalia's muster if the 8th Amendment is interpreted in conformity therewith (not that I'm sure it would be; he sometimes goes for English or pre-Constitution American law rather than Straight Outta The Bible), I don't think it'd fly nowadays.

We expect that sometimes a killer need not be killed. Although apparently we do still want to kill child-molesters (Kip notes the latest news; his prior analysis). My own position on that one: there's a difference between a child-molester (criminal, sick, possibly hard to cure, often re-offends) and a child-rapist (an insect. Kill him kill him kill him). I know children are presumed to be unable to consent. I don't accept that there's no difference between someone who seduces a child (disgusting) and someone who violently attacks and rapes a child (far, far beyond the pale). Incapacitation may be good enough for the seducer; killing's almost too good for the vermin.

Balancing, I suspect, is not really for us. And I'm glad. In America, you jaywalk across the street. In Soviety Russia, street jaywalk across you! (okay, that doesn't work, exactly, but it would if I'd said "you catch cold," or "you watch television," - see generally Yakov Smirnoff).

Upcoming Heinlein Fridays:

• I plan to write an entire post on Jerry Was a Man, at some point.



• I'm opening the floor to submissions. Leave a comment or e-mail me to get involved; you can suggest a book, ask a question, make me a challenge, or even volunteer to help out. I'll consider any original writing of yours on Heinlein related (even tangentially) to Law, if submitted by noon on Thursdays. But prior discussion could help refine topics, style, and make it easier on everyone.



• One of my intended future posts is a discussion of all the crimes Heinlein describes which would not be possible outside of science fiction

The Supreme Court today, by a 5-4 divided court, upheld the conviction of a defendant who objected to the use of evidence to convict him, which was discovered in his home and on his person subsequent to an admittedly (by the State) illegal, unconstitutional search. The case is Hudson v. Michigan, No. 04-1360 (PDF).

Of course, it wasn't a search made without a warrant, as Scalia happily notes. That would be offensive to notions of privacy which are, essentially, as old as the hills.

It was a search made with a warrant, but not in compliance with the usual rule of "Knock, announce, wait, and then enter." Knock & announce is intended, among other things, to:

• prevent bloodshed, as when residents "defend" themselves against unidentified "invaders" trespassing suddenly on their property,


• avoid needless confrontation, as when residents would comply with a request to open for a lawful search, or when they would even consent to a warrantless search, and


• allow a modicum of privacy, so an inhabitant may put on clothes or get out of bed.

Further, the language in Mapp v. Ohio (1961; incorporating the exclusion rule of U.S. v. Weeks against the States via the Fourteenth Amendment), Scalia notes, was widely sweeping dicta, and should be ignored.

Some rules, Scalia wants it to be known, matter. Some rules, when violated, produce outrageous and offensive results.

Others, such as rules which, when violated, prevent a criminal defendant from arming himself or destroying evidence, present no such repugnant situation. There's not only no right of a perp to shoot back, Scalia is implying, but there's also no right to flush the junk (or in this case, the rocks).

What does Scalia use in order to determine when a rule requires exclusion and when it doesn't? A balancing test. When are society's needs sufficiently great as to overcome the harm to the defendant from ignoring the rule.

The inevitable result will be that guilty (or guilty-seeming) defendants will never get the protection of any constitutional rule, and innocent-seeming ones will always. This is Scalia's rulemaking for you: a bright line. If you're guilty, don't bother looking to the Constitution for protection.

Useful links

• Case background at Medill



• Coverage at the NY Times, and opinions (thanks to Bashman for links) are available:
  
  
  • "Alito vote loosens limits on evidence" (which reflects the fact that the case was reargued after O'Connor left the bench; query whether she really would have voted to exclude, despite her language during the arguments)
  
  
  
  • Scalia opinion for the Court (as to parts I to III) (PDF)
  
  
  
  • Kennedy's opinion concurring in the judgment and joining the majority as to parts I to III, but not IV (PDF)
  
  
  
  • The dissenting opinion (PDF)
  
  
  
  • The original Supreme Court arguments transcript and the transcript of the re-argument (with Alito) (PDFs)
  
  
  
  

Previous Scalia posts chained below.

As we return to our recurring examination of the books of Robert Heinlein for material of legal interest, let's continue last week's discussion of litigation, courts, trials, and lawyers, with an inquiry into how Heinlein depicted lawyers (including some trial lawyers), and what happens when Heinlein characters go into a courtroom without one.

Maybe the title above should be Lawyers: Beyond Stereotypes?

Some Heinlein lawyers, like some Heinlein judges as I noted last time, are in fact a bit... two-dimensional. Or unpleasant. Villains, even. Everybody likes a good villainous lawyer - or rather, loves to loathe one.

Friday

The disastrously, viciously unhelpful Rhoda Wainwright, in Friday (review; hey, I just realized! Heinlein Fridays - heh), is less of a trial lawyer (she's shown only in the context of... (spoiler)

In passing I'll note that Friday is replete with Good Law, including discussion or depiction in action of Family law (marriage, including in totally non-traditional arrangements; divorce), Corporate law, Property and personhood (what counts? Are non-human sentients — or even human-but-designed people — more like natural persons, or more like machines?), Privacy and protections against search and seizure and invasion of the home, and a really substantial amount more. For an action-adventure, Friday shows a really highly developed sense of law, politics, science, and humanity. I wish I could make blogging look that easy.

As I mentioned last time, I wanted to point a spotlight at the pro se representation in The Rolling Stones. We're almost there. First, a trial lawyer or two.

Citizen of the Galaxy

Thorby, slave-turned-spacer protagonist of CotG, is a bit like Kim (see this spoiler-laden review, which doesn't note the similarity, and compare the Wikipedia article, which does).

In his adventures, there comes a time when he needs someone. Not a "snotty shyster" like Rhoda Wainwright (Friday, Del Rey, 249), but someone cast from an entirely different mold.

Thor is presented with a legal roadblock, and he's outgunned, outnumbered, and outclassed. He needs a shark of his own. So he consults a lawyer - Counselor James J. Garsch (CotG, Del Rey, 225-231, 239-252). Garsch is a gunslinger, a fighter. Thorby's first introduction to him is not promising - unless you know Heinlein.

The reception area is crowded; the receptionist's "mouth was permanently pursed in 'No.'" Thorby is ushered into the presence, where the lawyer looks "like an unmade bed." (In an amusing science-fictional touch, the lawyer's dress of trousers rather than tights indicates a lack of proper appearance, akin to his bulging gut.)

Garsch is informal ("siddown") and a bit patronizing (He corrects Thorby's use of the term "confidential" when he asks if the conversation will be, saying

Privileged, son. The word is 'privileged.' You don't ask a lawyer that. Either's he's honest or he ain't. Me, I'm middlin' honest. You take your chances.

This is both true (a conversation is privileged; while that means the lawyer should keep confidential anything he or she learns, see Model Rule 1.6, it further means that the information cannot be disclosed in court or otherwise (stronger than a duty of confidentiality; it's the holder of the privilege's right to exclude) unless privilege is waived or overcome) and also highly significant.

Garsch is not being folksy for no reason. He's not pompous, he's personable and shares typical Heinlein wisdom (You draw your cards and you take your chances; There's no way to ask a man if he's honest and get a useful answer). But by immediately leveling with Thorby, he's making himself the utter opposite of Thorby's enemies, who are hypocrites willing to utter blandishments, congratulations and reassurances to his face, but never admit that their interests are selfish and opposed to his.

Garsch, by admitting that he might or might not be honest, is identifying himself as a hero. Yes, you heard that right.

My favorite part is his bit about "middlin' honest" - it of course evokes Hamlet, with his lines to Ophelia:

Get thee to a nunnery: why wouldst thou be a
breeder of sinners? I am myself indifferent honest;
but yet I could accuse me of such things that it
were better my mother had not borne me: I am very
proud, revengeful, ambitious, with more offences at
my beck than I have thoughts to put them in,
imagination to give them shape, or time to act them
in. What should such fellows as I do crawling
between earth and heaven? We are arrant knaves,
all; believe none of us. Go thy ways to a nunnery.
Where's your father?

(Hamlet, Act III scene 1).

Garsch, balding, graceless (he bites his fingernails during the meeting, fails to stand up to greet Thorby), unshaven, nevertheless delights Thorby, who is "bucked up":

"He had never met a more mercenary, predatory old man - he reminded Thorby of the old, scarred freedmen professionals who swaggered around the New Amphitheater" back where Thorby grew up - a rough spot, Sargon, which had slavery, heads on pikes, and poison gas used by the local version of cops on criminals and the unlucky.

Garsch then proceeds to take Thorby's money and fight the for him tooth and nail. (brief spoiler)


The legal maneuverings in I Will Fear No Evil (wegrokit review; Heinlein society article (amusingly titled "An Angry Fabulist's Expression of 'Rejection Syndrome'" - this is why I don't write scholarly criticism, but prefer to tell you whether something's any damn good, or at least interesting)) were similar.

In both books, a major legal battle develops over whether the main character is who they say they are, and regardless of whether they are, whether the other parties can nevertheless interpose themselves and prevent the protagonist from getting what they are claiming.

In both, a lawyer takes up the lance on behalf of the main character, doing through skill and slipperiness what the hero cannot on their own. Jake Solomon, of IWFNE, is no "karky fixer," as one character slangily puts it, but a deeply loyal, zealous advocate for his client. Garsch is a more-mercenary version of the same thing: he stays bought, and fights hard for his client.

Enough, for a moment, about trial lawyers. Let's see what happens when a Heinlein character goes before the Bar without having first passed the Bar.

Pro se representation

"He who is his own lawyer has a fool for a client" - although apparently, defending another can be a different matter.

Before getting to fools, I want to finally get to The Rolling Stones, as well as refer again to The Star Beast.

The Rolling Stones

This one's interesting. (See review at Gotterdammerung dot org, "Although not Heinlein's best [novel for juveniles], TRS is one of his funniest." Hazel Meade Stone, matriarch of the Stones who go Rolling, is a formidable character. An original patriot of the Lunar Revolution, an outstanding liar, space pilot, haggler, and screenwriter of sci-fi serials, Hazel wouldn't likely encounter her match in a galaxy... except for her family. (Wikipedia article on the book.) Her youngest grandson, Buster, cheats at chess... by reading her mind. Her twin grandsons Castor and Pollux are two of the greatest rogues in all of Heinlein's books, after perhaps only Lazarus Long himself. Her son, who is the stay-at-home placid member of the family, is a former Mayor and engineer; her daughter-in-law is a physician who says "Yes, dear" to her husband but always gets her way. With these folks in her crew, Hazel can - and does - go anywhere.

So when the Terrible Twins get in trouble with the law, Hazel steps in, and saves the day.

[A legal aside: when marking something for later retrieval in orbit, the Stones post it with a notice, "Not for Salvage," and declare their intention to return to claim it, citing to U.P. Rev. Stat. # 193401. Since there is no Revised Statute collection codified by - what, Universal Planets? - this is an amusing invention.]

The court scene comes (Del Rey, 167-175) when the Twins are charged with fraud and conspiracy to evade tariffs. There's a fairly good brief discussion of the charges, and then we're before the judge, in medias res. Naturally, Hazel argues for the boys.

"Since when is she admitted to the Bar?" asks her son, but that's not too big a problem; on a frontier, things are more relaxed, and UPL is not a crime (unlike Texas nowadays).

Dr. Stone wonders, "shouldn't the boys have a regular lawyer?" In fact, Hazel ties the prosecutor in knots, successfully arguing for a clever characterization of the goods in question which simultaneously admits that they are what the prosecutor says, without agreeing that they ought to be subject to the tax. It's excellent lawyering. The judge reproves the prosecutor, who tries in vain to keep the focus on the "plain meaning is plain meaning, rose is rose" argument whereby if it is what he says it is, defendants lose. The judge doesn't buy it, instead adopting Hazel's folksy analogy that a roast pig is a luxury - but "Not to the pig, son." This seems perhaps like an overly familiar way for a judge to address a prosecutor before him, until the prosecutor slumps his shoulders, says "Sorry, Dad. I got excited." and rests his case. I guess things really are different on a frontier.

This delightful scene is similar enough to the aggressive lawyering done by Betty on behalf of John Thomas and Lummox in The Star Beast (mentioned last time) that I'll let it go with a recommendation to read those courtroom scenes as well, plus some brief description below after "Coventry."

Finally, sometimes pro se litigants really are fools.

"Coventry"

In the opening lines of Coventry, the court is sentencing the protagonist, who is unrepentent despite the jury's guilty findings. He is presented with the Two Alternatives (being sent to Coventry, or accepting treatment for his maladaptive behavior - given the title of the story, which do you think he chooses?), and wants the opportunity to say his piece before he does. The "hero," David MacKinnon, is ungracious, unreasonable, and speaks exceedingly informally ("Do I get to talk, or don't I? It 'ud be the best joke of this whole comedy, if a condemned man couldn't speak his mind at the last!") - and amazingly enough doesn't receive a contempt rap for his display. Possibly because the entire point of the proceeding is his failure to abide by social norms....

MacKinnon, like other Heinlein protagonists who speak wildly in defense of individuality and freedom (I'm thinking now of Peewee and Kip in Have Spacesuit, Will Travel), seems to be missing some truths about the situation. The Senior Judge asks for permission to correct the record, and responds: "The Covenant is not a superstition, but a simple temporal contract entered into [...] for pragmatic reasons." The Judge further discusses the social contract, and why MacKinnon's actions and attitudes did not merely violate it, but mean that he poses a danger to society.

The Judge also neatly differentiates between disliking someone (or approving when someone gets punched in the nose, or hit by a pie, as I would approve if someone acted rudely towards Ann Coulter, who is a bigot and jerk) as contrasted with thinking that somebody has the power to actually inflict that punch or pie or otherwise acting on the dislike. I would never punch or pie Ann. I can cheerfully discuss pie-ing her, or suggest that the world would be best served if she would go take a long vacation elsewhere and forget to return, but I am not interested in personally infringing on her rights, civil or otherwise. That's her thing (an example: urging an angry mob of her supporters to deal with protesters by saying "You're men. You're heterosexuals. Take 'em out." Emphasis added. Ann, you urged something that might have been a polite request for eviction of a disruptive influence, but reads in context like a call for mob violence. You're a dangerous nutjob, Ann).

Compare David's performance in "Coventry" with John Thomas' capitulation to the judge in The Star Beast (Del Rey, 78). John is so honest, so naive, he thinks that admitting liability and offering to pay damages in court is going to be the best way to resolve issues. Betty Sorenson, his friend and possible love interest, aware that negotiation is best entered into from a position of strength, tries to hush him. The judge rules that no confession will be binding, and so allows him to speak despite his youth and inexperience - two shortcomings Betty appears to not possess, despite being John's age and not a lawyer. Betty uses every procedural and substantive argument that she thinks will work to achieve her goals, including asking for a change of venue, for the judge to recuse himself, attempting to create a mistrial, asking that a supposed animal be allowed to testify as a witness, not to mention her maneuverings to be present at all.

Betty arranged for John to sell her a half interest in the titular beast which is the subject of the consolidated actions, so that she has standing. See discussion at pp.59-61.

Betty is, in fact, the most adept legal actor in the book - possibly the most acute diplomat as well. My biggest disappointment with the book (aside from a few minor instances of patronizing language from the bigger, older, more experienced males, which Heinlein does not *quite* disapprove ("Confound her pretty blue eyes," references to paddling, etc.), is that the question "Miss Sorenson... how does it happen that you do not ask to be ambassador yourself" (p.251) receives no satisfactory answer. Well, the book was published in 1954.

So what can we take away from all this?

If you're charged with something, have a lawyer. Unless you're actually smarter than the prosecutor and/or judge, and have more cards up your sleeve, you want the best representation you can obtain. After all, a trial lawyer is a trained warrior, a skilled advocate able to think about your problem and on behalf of you without losing the ability to think strategically.

The worst failing for any pro se defendant is to be unable to recognize when you yourself lack credibility; to differentiate between your strong arguments and your frivolous ones; to decide when to encourage the defendant to testify, and to enable that testimony to be presented in the best light, and when to encourage the defendant to relax, and let more competent advocates put forward the arguments.

[Funny: I found this site by googling the words Heinlein lawyer. It notes that it was removing e-Books subsequent to nastygrams from lawyers representing Tolkien's estate. It reprints said e-mail, noting it "is pretty much exactly the same as the email that I received from Robert Heinlein's lawyer, accept [sic] that Robert's hired gun at least had a sense of humor." Well, H.Hill and/or Mad Ogre, hopefully the take-down ended your legal troubles. But that's what happens when you facilitate copyright violation, and you're a big, fat, visible target.]

Tune in next time for one of my planned Heinlein Fridays, on either Vigilantism or Aliens/Combatants. Vote today for topics you want to see!

Via the NYT, "Canada to unveil details of alleged terrorist ring," I found the following admirable comment by a prosecutor assistant commissioner of the RCMP, Mike McDonell, who

told Reuters it would be up to the court to decide whether to impose a gag order that would sharply restrict what the media can say about the charges.

``For a lot of the information, we prefer to introduce it through the courts in the first instance so that we're not prejudicing anyone's chances for a fair trial. If the court says we're free to talk, I'll be talking,'' he said.

Now, I don't usually talk up Canada, but in this case, good on them. I like the whole "catching terrorists before a building blows up" thing - that's good, very nice. Second, I like the whole idea of charging them with crimes. As opposed to, you know, simply kidnapping suspects and holding them without charges, in violation of the entire American Way of Doing Things.

Now, given that they identified these terrorists (who were practicing with their weapons at night and taking delivery of three tons of fertilizer, or about three times what our own homegrown coward-terrorist-maniacs used to murder 168 Americans in Oklahoma City, and given that the police are also charging them, what's so admirable about the quote?

Well, it shows a commendable concern with the rule of law. Criminal cases have to be tried in a court of law, not in the court of public opinion. If a judge should in the future impose a gag order, the RCMP will abide by it. But more, before charges are unveiled and a court can rule on whether some filings will be made under seal, they want to avoid prejudicing anyone's case.

Now that's respect for law and order. Real law, real order, not just a pro-prosecutorial lock-'em-up inability to recognize that law cuts both ways, imposing responsibilities - duties! - as well as exacting penalties.