Unused and Probably Unusable

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)
(show)



a larval form of Martian, and a royal princess - yes, Willis is a she.

(hide)
. 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)
(show)



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.
(hide)
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:
(show)



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.
(hide)
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.

There's been yet another revolt against the Project - the Blawg Review was subverted, or there was an attempted subversion. Ed-itor in Chief rejected the attempt, by Marty, and so the official Blawg Review # 60 is hosted at Blawg Review.

I would note we have had prior flirtations with unusual, occasionally edgy and even sometimes borderline contemptuous hosting jobs. Some work. Some hosts do exemplary jobs. This time, I'm a bit dubious. I also liked Ed's theme, involving the Socratic Method.

Hopefully there'll be some of my submissions in the next Blawg Review, which will be hosted at Blonde Justice.

[welcome to Blawg Review readers! Thanks to Blonde Justice & Co. for presenting a fun and very, very pink Blawg Review # 61.]

Why don't I do things like Kip's Diamond-blogging, or the other folks who dog- or cat-blog? See this brilliant comment by Paul Noonan to Evan Schaeffer's already-brilliant satirical post, Advice to Federal Judges # 3 ("Dear Mr. Schaeffer. I am a federal judge who has a weblog....")

Why don't I post a ton of pictures like Ann Althouse does (brat-blogging?), or pictures of random neighborhood cats? [Update: I note that Wikipedia credits Kevin Drum, of CalPundit fame, with a pioneering role regarding the 'Friday cat-blogging' trend.]

It never felt right. There's at least three reasons why I don't put a picture of myself up on the sidebar, and why I don't include pictures in the body of the blog.

Physician Attorney, heal reveal thyself

First of all, I'm pseudonymous, although only thinly undercover. Dozens of readers, commenters, and fellow bloggers know who I am. I openly disclose what I do, where I do it, and what general kind of cases I work on. I just never felt that my actual, personal identity was relevant to whether my writing was at all interesting, or any damn good. See this discussion in my post, Carnival of the Anonymous, and in the comments, where an innocent question from a loyal reader elicited a rambling, and at times near-hysterical, response from me.

So I don't put up a picture of myself on the sidebar. I don't publish my personal e-mail address, only my blog e-mail address. I don't post pictures of the view from my window, sorry Andrew. It is, however, pretty good.

Illustrations

Why not, as has been suggested, punctuate posts with pretty pictures?

Some do. See the Shape Blog, which would lose almost all its impact without depictions of what they're writing about. David Giacalone (and all his alter egos at f/k/a, the Ethical Esq., etc.) usually interspersed his posts, not with pictures, but with haiku. (Sad to note that f/k/a is now on hiatus; best wishes, David, and I hope you chose to resume blogging if and when your allergy to it subsides.)

Why write in all-words? Part of it is deep, based on the way I first interacted online. Before Gmail (I heart Gmail, and all its functions, including the Chat program, which is smoother and possibly all-around better than AOL IM, is seamlessly incorporated within Gmail, automatically saves chats in a highly searchable, organized way (but also provides an easy to way to go "off the record")), before I knew of chat rooms on IRC, before I surfed web pages using Mozilla/ Netscape, there was a Before Time.

Back Then, going on the Internet meant firing up Lynx, a text-only browser, from within my text-only Unix shell. The web, I came to see, was the text plus the links. Pictures were usually represented by an [INLINE] tag, and were sometimes "clickable" - meaning I had to select them and hit enter to follow the link, still unable to see what it was. Text-only pages were useful. Text-friendly pages were useful. Graphics-intensive pages weren't just too slow to load; they were impossible to use.

Chatting, meanwhile, began with the msg command, and I eventually learned about ytalk (and the xtalk family). Ahh, heady days. That's when I went from touch-typing to speed-typing. Got to keep up with the conversation. [I also learned a lot about errors in speech-production, written form. I knew what I meant to say; other people knew what I meant to say; my fingers insisted on completing words and even phrases the way they were comfortable doing. I also learned that my fingers often made predictable errors, like erros for errors, and wya for way. End of digression.]

As a result, I got a heavy dose of preconceptions and prejudices about Content. Content wasn't pretty pictures. The pretty pics were for people with fast internet connections, lots of leisure time, and less interest in what it all meant. Plus, pictures could be unwieldy, misleading, or even ugly. To avoid all that, my first webpages were majority-text, or at least text-friendly. The visually impaired (or blind, as the differently brained call them) should be able to access my writing without too much difficulty. Understanding it, as with the Sighted, is entirely the reader's problem. ;-)

There are times when pictures aren't a luxury. Sometimes, pictures add a thousandfold to a discussion. You can drone on and on about an intersectional collision, or an innovative product, or a magnificent vista, but unless there's pictures, something is badly missing.

I like pictures. They're virtually required to interpret some kinds of data. They're also potentially very pretty. My favorite source for pretty pictures. But I don't always feel that they add dramatically to what I write.

The other reason, besides early training, for my all-text style, is that I frequently write like a lawyer.

What's a Lawyer like?

(Which reminds me of one my favorite Groucho lines. "Time flies like an arrow. Fruit flies like a banana." Say it out loud if it's not clear. Which reminds me of my favorit-est Groucho paired witticism: "Outside of a dog, a book is a man's best friend. Inside of a dog, it's too dark to read.")

Look at all the blogs out there, the lawyer blogs. Volokh hasn't posted a picture in many a moon. Evan Schaeffer does, but usually only for particularly awesome Lawyer Gadgets (also see the post comments, including sniping between Stan and Ted, which amused me). Ann Althouse, as noted, goes heavily in the other direction, complementing most posts with graphic illustration. But the lawyerly blogs, and even Ann's lawyerly posts discussing a legal issue, imitate legal writing. They're imageless, by and large.

Lawyers write briefs. We write arguments, in words. We write persuasively, sometimes academically, but we never rely on the picture. If there's a Figure 1, we have to describe it sufficiently that there's no confusion if someone can't see it. Law students don't illustrate their student notes. Law professors seldom illustrate their work. Judges seldom include pictures in the text, although there's always exhibits and attachments.

Besides, if I have something to say, I want the words to stand on their own. I'll link to pretty pictures, but I suspect I won't be inserting them in the text anytime soon.

Your reactions?

As promised, this is the first of my recurring posts taking on interesting subjects from the work of Robert Heinlein. See the above-linked post for my introduction to the series. Upcoming topics shall include Lawyers Beyond Stereotypes; Law, Social Contract, and Vigilantism; and Aliens, Enemy Combatants, and the Other.

But this time: Courts!

Everyone loves a good courtroom drama. Some of the best have been written by lawyers, familiar with the drama, the substance, the procedure, and the personalities.

Despite not being a lawyer, however, Heinlein consistently wrote good courtroom. Whether played for laughs or as a deadly serious case with life on the line for a protagonist or even for an entire race, Heinlein deserves recognition as one of the best lay authors ever to depict judges, courtrooms, trials, and trial lawyers in action.

Job: A Comedy of Justice




Have Spacesuit, Will Travel

I won't spend too long on this one. At the risk of spoiling the entire plot,