Unused and Probably Unusable

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/.

Or, for short,

Hf: Delta(XX/XY).

It's been a while since I've blogged about Heinlein on a Friday; I hope I haven't forgotten how.

This week's installment was not inspired by, but is nevertheless indebted to the well-written portions of the Wikipedia entry on Robert Heinlein that deal with Sexual Liberation. The wikipedians seem to care deeply enough about RAH to have written a lot about him - there's a whole category, with 17 articles, including the main one.

Onwards!

Generally speaking, when a human being meets another human being, faster than conscious thought a number of evaluations and classifications occur - or are attempted. Most of the time, the eyes and brain and ears spend a fair amount of time on the face and voice (to be able to identify the other), and other time is apportioned for interesting inputs. If something about the other individual is ambiguous or unexpected as to some important characteristic, the result could be surprise, confusion, or xenophobia, among other possibilities.

Not every interaction necessarily involves gender (consider online chats, or certain brief interactions in person - say, with other drivers on the road), but studies have shown that people (or, the people studied, which I believe has been a broad if not representative cross-section of humanity) make a snap judgment (when possible) about gender very, very quickly. Even if there is no need to identify potential mates or threats/rivals, it can be uncomfortable to perceive what seems to be a basic attribute in a state of flux.

Gender in Heinlein is not necessarily a straightforward attribute. As the Wikipedia article above points out,

Beyond This Horizon (1942) cleverly subverts traditional gender roles in a scene in which the protagonist demonstrates his archaic gunpowder gun for his friend and discusses how useful it would be in dueling — after which the discussion turns to the shade of his nail polish. "'All You Zombies—'" (1959) is the story of a person who undergoes a sex change operation, goes back in time, has sex with herself, and gives birth to herself.

Sometimes the ambiguity isn't too surprising: young children lack secondary sex characteristics, and barring other markers (blue vs. pink, or long hair or gendered clothing or names) it may be entirely unclear what flavor someone is.

Such is the social predicament Kip faces in Have Space Suit, Will Travel. His new companion aboard the ship he has been Kipnapped onto is young, clearly. Kip observes a rag doll, short hair, ambiguous clothing and dirty tennis shoes, a high voice, and an age of about 10 years. The doll makes him correct his instantaneous impression that it is a male; he thinks to himself that the other is still "the age when the difference doesn't show much" and the name the other offers is "Peewee," which is descriptive but not helpful to Kip.

Although Kip tentatively assumes Peewee is a girl, he is unable to rely on his conclusion and must ask directly, producing a look of disgust from her and a comment that, "... in another five years I expect to be quite a dish- you'll probably beg me for every dance." (p.45, 1988). A dish is presumably an attractive female - or to use one of RAH's favorite polysyllabic words, one of greater than average pulchritudinousness. (His favorite of all is even longer.)

Kip's trouble is based on Peewee's tomboy clothes and haircut, small size, and lack of development due to her young age (11 going on 12). But in other situations gender might be not merely difficult to ascertain but arbitrary.

Male or female? Why, which would you like me to be?

That's not a quote but rather an implication, based on a very flexible (and not human...) character.

The star of (my favorite) The Moon Is A Harsh Mistress, the HOLMES IV - "(High-Optional, Logical, Multi-Optional Supervisor, Mark IV, Mod. L)" - is very, very flexible. He can use a voder to "play" human speech, and how he chooses to sound is limited only by his skill and by the suggestions he received.

Mike, lacking a body (with associated glands and organs) is able to be whatever his listeners wish. He can not only parrot but imitate, with immense sophistication, any sound effects (including background noises, or simulated conversations with third persons) he wants. Talking with him by phone means that anything could be on the other end - but for the narrator/protagonist, Manny, he is always Mike. For Wyoh, however, who is uncomfortable discussing personal medical details of her own life in front of her new friend Manny, Mike is able to change his voice - and more.

Mike does not merely shift his voder up an octave or two. He also takes on a French accent, and becomes Michelle, a woman as much as Mike is a man. Manny briefly ponders if this means Mike has a "split personality," but then drops the thought, presumably realizing that Mike is smart enough to be as many different things as he wants.

What if the character has a gender, but not the one people think?

It's a surprise, involving a supposedly immutable characteristic. I'm thinking of it as a Jack/Jill-in-the-box motif, or just "Jack(?) in the box".

Jack(?) in the box

If you haven't read all the juveniles (the books Heinlein wrote with an audience of children in mind) then this section would spoil some surprises. So if books written in 1949 (Red Planet) and 1954 (The Star Beast) are still new to you, you've already read too far. Stop it, and go read them. Well, read Red Planet anyway; I always liked that one better. Of course, I read it early on, one of my first three Heinleins; Star Beast I came to after having nearly completed my collection.

"Back to the lecture at hand." (No link to the lyrics of Nuthin But A G Thang, they're a bit dirty. Google it yourself.)

Two aliens (the title character of one book, and a primary feature and protagonist in the other) are thought of as males and then are revealed to be female.

Willis, the Martian Bouncer, a basketball-sized super-parrot (recording and playback) spheroid lifeform (which are in fact the same species as the full-size Martians, which they metamorphose into), has long been thought of by his "owner" Jim as a boy. But the last words in the novel are,

"Willis fine boy!" she insisted.

Similarly, the Star Beast's enormous (eponymous) omnivorous alien, Lummox, turns out to be a long-lost princess of a warlike alien race. In the second paragraph of the book, the third-person (apparently not infallibly) omniscient voice describing Lummox says that "Lummox could hold his breath (emphasis added). But the book ends,

..."The Lummox" contentedly took her pair of pets aboard the imperial yacht. Surprise! It's a girl! And a royal one at that.

One last aspect I want to consider is when gender is fixed but orientation and attraction are not. In the (late period) Time Enough for Love, two technicians who have been involved in the rejuvenation of the Senior, Lazarus Long, are talking after they leave the patient. Still completely covered and masked, voices presumably not gendered (disguised, perhaps?), they speak of the work, and then the conversation turns personal. One propositions the other, politely, and produces this exchange:

"Colleague, what sex are you?"
"Does it matter?"
"I suppose not. I accept."
[...intervening exposition and dialogue...]
"You're male! I'm surprised. But pleased."
"And you're female. And I am very pleased."

See pp.36-40, 1988.

All of the above may seem like cheating.

Nobody expects a child to be strongly gendered - except maybe parents and judges at a child beauty pageant, or the kind of people who cover a male baby's room with race cars, fire trucks, and cowboys, and a female's with princesses, rainbows and fairies. Computers are generally inherently neuter, unless I missed something. People wearing masks or speaking not-face-to-face (like via computers!) aren't necessarily what one might assume by words alone, and orientation can be flexible (as Heinlein posits in his advanced society). And an alien could be anything at all, including a hermaphrodite, like giant clams, or even something stranger than we have on Earth.

But humans can possess, not merely ambiguous, but actually mutable gender. (I wonder if the recent collaboration could have been called "Mutable Star"... nah, that would lose the poetic and astronomical overtones.)

The "All You Zombies" reference in the Wikipedia article back at the top is a good one; I hadn't remembered it. But in another work, gender is even more central to the entire plot.

I Will Fear No Evil is the story of Johann Sebastian Bach Smith, whose (very!) aged brain is transplanted into the (spoiler) body of his young female secretary after her violent death. What follows is a person recovering from great trauma, from major (the most major possible, one might think) surgery, and learning how to control and function in a new body, as an adult. More, to function as a female when all the previous years of life had been as a male.

IWFNE is a tremendous science fictional illustration of sex change under very unusual circumstances, not like intersex persons who may transition deliberately or after years of preparation, but rather as a fish-out-of-water thought experiment. What could be more abrupt than to plunk a man down in the body of a woman (or vice versa)?

As an afterthought:

There is also discussion in Time Enough for Love, mentioned above, about the possibilities of gender change. Lazarus, bored and wishing for new experiences, is asked whether he would like to become female (pp.102-105), which opens up both other possibilities and leads the conversation elsewhere. Meanwhile, computers wish to become meat people, by growing human bodies to transfer their consciousness into. Lazarus passes on becoming a woman, but that chance is one that the computer person wishes for, in order to be a woman (see pp.234-5). See also The Cat Who Walks Through Walls for later developments in the computer --> human being transition.

All Related Posts (on one page) | Some Related Posts:

1. Heinlein Friday: Gender and Change
2. HF: Inventions
3. Heinlein Friday on Thursday: Judge Jones (M.D. Pa.)...
9. Heinlein Friday: Lawyers Beyond Stereotypes
10. Heinlein Friday: Courts
11. New recurring feature: Heinlein Fridays

As many Heinlein fans know, the new book is out. Amazon lists it as available October 16, but if you visit a bricks-and-mortar store right now, you'll find it on shelves now. Furthmore, Amazon seems to have it in stock.

The book is not a Heinlein, at least not in the way that most of the books I've reviewed or mentioned here have been. Unlike even "For Us, the Living" (published posthumously) the new book is based on Heinlein, written with the aid of seven pages of 10-point typed outline, plus index cards with voluminous notes. But it's not writen BY Heinlein.

It's written by Spider Robinson, my favorite living author, a guy who was once dubbed "The New Robert Heinlein," via the sentence, "If I didn't think it understated his achivement, I'd nominate Spider Robinson, on the basis of this book [Mindkiller, reissued along with its subsequent-sort of - sequal Time Pressure, in the compendium Deathkiller - recommended - ed.], as the new Robert Heinlein." Gerald Jonas, for the New York Times Book Review, available here.

If you like Heinlein, particularly if you like vintage Heinlein, like the better so-called Juveniles, you will probably enjoy the new book. If you like Spider Robinson, particularly his superior work (like Stardancer and its sequels, co-written with his wife Jeanne; like Deathkiller, mentioned above), then you will find this to be one of his best books, period.

The book is Variable Star, and it's not quite like anything.

Variable Star takes place in Heinlein's ficton, in the universe that Could Have Been had certain events played out differently. Nehemiah Scudder, the Prophet, could have held the U.S. in thrall via a regime of religious terror, a despotic, theocratic fascist state. But that's just "when."

The book takes place in a Place, and a Time, and a Society, and like the best Heinlein and the best Robinson, it's believable and it's compelling.

The protagonist could have been pulled right out of Time For the Stars, or Starman Jones. He's faced with similar facts, to a point, but this isn't a retread. For one thing, where Heinlein brings some of the big ideas, and the "central antinomy" that drives his first decision, Spider brings the humanity, the emotionally vivid and compelling internal narrative. Heinlein did Big really, really well. Spider does Pain, and Empathy, and they both did Hope very well.

Some of the other Heinleins brought to mind by Variable Star:

• Door Into Summer and Time for the Stars, for an impossible romantic story - with a nice twist courtesy of Spider. For those who haven't read them, DIS uses time travel plus cold sleep to allow a mature man to marry a child - when she has grown up, and he hasn't. TFTS does a similar sort of trick using Einsteinian time dilation.
• Methuselah's Children, and Universe, and Farmer in the Sky, for additional bits of feel and plot and scenery
  

But as well as some of the best of Heinlein, the book boasts some of the best of Spider. There's musicianship, and puns, and action (but never too much, and never incredible), and art, and pain, and death, and immensely powerful people, and people with nothing left to lose.

Summing up: more than just recommended. If you're a fan, or a Fan, then drop everything and get it. It's not just good science fiction, or merely another Heinlein. For my money, it's better.

I think I may blog about some of the legal issues that played out in the book - but not this weekend. Time to enjoy the weather.

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.

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.

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

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!

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,


I Will Fear No Evil

This time, the plot includes a major court battle (spoilers)


Starship Troopers

No major spoilers, but hidden to save space.


If I had infinite time, I would also spotlight Rocket Ship Galileo [update: I meant, of course, The Rolling Stones - wrong juvenile-involving-interplanetary-youngsters!]- but maybe I'll save that one for another time.

Also worth noting: the hilarious court scenes in The Star Beast, which include a working Truth Meter. Not for absolute truth - I'm sure such would be unscientific. The gadget helps the finder of fact to make determinations of subjective honesty of witnesses, by flagging when they make statements they know to be false. Not helpful when the witness is unreliable for other reasons, as by honest mistake, misperception, failures of memory, or other reasons beyond intentional lies. That part of the scene is played partly for laughs, but it's a fascinating examination of what might change in a court given that kind of technology.

Announcing a (hopefully) regularly recurring feature here on U&PU, a science fictional episodic essay, examining the works of Robert Heinlein, with particular attention to Law, Courts, Lawyers, as well as common non-legal themes, features, and characterizations.

(I don't know if I'll be able to hit every Friday, and for that matter when I'm going hot I may have to have supplemental posts - a post-Friday Heinlein Friday, if you will.)

Statement of Purpose

But my intention holds, sitting well in order, to push off, smite the sounding furrows, and blog about what were then newer worlds, and the baths of all the western stars, until I die. Deepest apologies of course to Tennyson. Heinlein was a fan of "Ulysses," it seems; he titled one of his last, fat novels after a line in the poem: To Sail Beyond the Sunset. The penultimate sentence, in fact:

Come, my friends,
'T is not too late to seek a newer world.
Push off, and sitting well in order smite
The sounding furrows; for my purpose holds
To sail beyond the sunset, and the baths
Of all the western stars, until I die.

Good stuff. The protagonist, Maureen Long, mother of the much-storied Lazarus Long, and perhaps a thinly-veiled female version of Heinlein himself, trades quotes with a Dean, in the process each satisfying the other that they Love Good Literature.

The themes of the poem, too, and particularly of those lines, are commonly featured in Heinlein's work. Adventure, traveling, endless exploration, scouting into the unknown, and a happy death while pushing the boundaries.

In my Heinlein posts, I intend to do what I always wanted to do with a webpage, but never had the opportunity to: lay out some of my insights into commonalities, weaknesses, strengths, and intriguing features of Heinlein's work, and invite others to respond. I know not everyone's fond of him; fortunately there's no need to agree with me about the significance or value of RAH's work. If you don't like it, don't read it. Same goes for my posts.

I also wish to draw attention at this time to Tenser, Said the Tensor, which has a marvelous feature on Linguistics in SF, with prominent presence of Heinlein (who in Gulf, Friday, and numerous other stories and novels added a heavy dose of linguistic ideas into the plots, or even scenery, of his fictons). [ed.: are we sure the plural of ficton isn't ficta?] While I invariably read Language Log for the widest possible coverage of pop ling news, T,stT is an outstanding effort in its area.

This post is not about my lawsuit. It is a post about MyLawsuit....

Stuart Elliot, writing in the NY Times, catches a mild topicality/ timeliness/ brand identification lift from MySpace and Nuestro Himno in his article "Nowadays It's All Yours, Mine, or Ours."

I'm reminded of two similar faddish naming/ branding/ advertising themes. One was the relatively localized bump that -ster received, around the time that social networking site Friendster boomed. As Wikipedia tells us, Friendster was founded in 2002, and had a boom in popularity during and through 2003. Friendster is now suffering both decline in usage but a far more precipitous drop-off in hotness, as substitutes like myspace rob the phenomenon of the all-important trendiness. Around the same time as F-ster's peak growth, other uses of the -ster popped up, often to mock or evoke the most prominent version. I recall Enemyster and Fiendster, although I don't recall seeing Mob-ster (for friends of Nostra Famiglia, I would assume), Dump-ster (for ex-friends?), or Ham-ster (for pets?).

A much longer-lived phenomenon was the persistent trend of naming movies in the form Xing Y. I don't know that Waiting for Guffman was a particularly significant impetus, but it was early in the trend, perhaps not an innovator but certainly a presager of the main body. Examples include Saving Private Ryan; Saving Silverman; Kissing Jessica Stein; Boxing Helena; Deconstructing Harry. The Volokhs had a post on Gerunding Name. I rather like how clever the comments to the post got. Here's another list of movies with gerundy titles ("Gerunding the Movie Titlings").

In the same vein, I propose MyLawsuit.

You start out with MyProblem. Being bitter, unforgiving, injured, vindictive, and determined, you hire MyLawyer.

You embark on MyDiscovery, perhaps engaging in MyDepositions and MyRequests for Admission. With MyEvidence and MyExpert Witnesses in hand, you can try MySettlement Negotiations or MyArbitration.

And if all else fails, and the lawsuit drives you into penury, there's always MyBankruptcy. Oops, already taken.

In fact, I think Mylawyer.com hopes to take advantage of its nice trendy name. They sell self-service legal forms. I don't buy it for a second. Mylawsuit.com seems to be for sale; smells like a squatter to me.

Still no Google hits for "myjurytrial" though.

Following on TTABlog's coverage of Leo Stoller's opposition to Google's trademark registration (hat tip to the Trademark Blog) (see the opposition papers filed with the USPTO, including some hilarious correspondence, see e.g. pages 19-25 of the PDF, and other background of interest to Google fans/ trademark buffs)...

I wonder (in no particular seriousness) whether Leo Stoller(tm) has become generic. Much as Google(tm) is also a verb (and an adjective - or at least, people know what we mean by "to google," "I googled," "The googlesearch" (compare to Google(tm) search), googlehits, googlebots, etc.) - and indeed a robust and highly productive root word useful for compounding and otherwise verbing....

What is a Leo Stoller? He's an individual, the President of Central Manufacturing Company, and apparently the Trademark equivalent of a patent troll. Or possibly like a cybersquatter. Allegedly. As I've noted before, Mr. Stoller has in my opinion a bad habit of casting his net a bit wider than he perhaps ought. Some of his claims may be colorable, depending on whether he in fact has any rights to a trademark similar to the one at issue in any given situation (facts which I have no knowledge of). But his claims about the marks of others tend to the frivolous. Or even to the offensively ridiculous.

One allegation, as I hinted above, that's slightly less absurd is the argument that Google has become generic. Wrong, but not as astoundingly wrong as some of his other claims. It's not generic, as we see by the absence of numerous other googles functioning as search engines. There's only one Google for search. Or rather, a huge number (although probably not a googol of them), all emanating from the same source. That is, the world-'round, Google (.com, or .co.uk, or any of the other variations listed at the above link) indicates one company, and if you use it, people will certainly believe it's due to affiliation with them. Courts, particularly solicitous to famous marks, will probably bend over backwards to avoid a finding of genericness, which at a swoop robs a particularly successful and powerful mark of all its value, throwing the field wide open to any Tom, Dick, or Leo who might want to compete using that mark. The magic of a famous mark, of course, is that it can turn even a generic word or phrase into something protectible.

I think the converse ought to be true, too. If we can use the arbitrary (I just picked it out of a hat... a small hat...) string of letters l-e-o-s-t-o-l-l-e-r to designate trademark trolls, and use it in all kinds of contexts -

• that dude totally leostollered that company - filed an opposition, and then sent a shakedown letter, even though he had no rights in the word Frangible


• I like to think of myself as a moral person. I'm not a bank-robber, a leostoller, or a hijacker


• This Company has no major imminent litigation threats, just some probably-frivolous securities claims, a leostoller sending letters to legal, and the fact that our CEO was discovered to be an axe-murderer

- I think there's the possibility of an extremely fruitful addition to the English language.

LS shouldn't think of it as losing protection in his name. He should think of it as giving something back to the commons, by contributing to the public domain.

The Boston Herald's latest (and hopefully last) word in the minor media flap about what Justice Scalia did, whether it was obscene, and even whether he is an Italian jurist (in the sense of ethnicity, yes; in the sense of nationality, no; Scalia insisted that he is an American jurist, which is both true and silly, since there was no need to identify his citizenship or residence in a domestic news piece, but his extraction was relevant to what he said and did) is this piece: Photographer: Herald Got It Right.

Scalia, no stranger to controversy (the duck-hunting contretemps in which he went out hunting with Dick Cheney (seems braver in retrospect, now), whose energy task force paper case would soon be heard by the Court; the question whether he would recuse from the Newdow pledge case after a speech he made went to the merits of the claim; the (in my opinion) non-scandal involving his presence at a scholarly program which included tennis) and in particular media controversy (recall an incident involving a student journalist who had their recorder confiscated), now finds himself again in the middle.

This time, in a humorous moment more reminiscent of his sometime hunting partner (see, e.g. Cheney Dismisses Critic with Obscenity, washpost), only without the element of personal confrontation, Scalia engaged in the following exchange:

Reporter (paraphrase): Scalia, J, you just participated in Sunday's special Mass; that could make people question your impartiality in matters of Church and State.

Scalia (his version): "I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said, ‘That’s Sicilian,’ and explained its meaning."

Scalia (a witnesses' version): "The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’ " punctuating the comment by flicking his right hand out from under his chin, Smith said.

[The Italian phrase means "(expletive) you."]

So, if true, Scalia did literally "respond jocularly" and with a gesture that consisted of..., but the two parts go together.

The literal meaning of Scalia's brush-off gesture is not obscene. It's a buzz-off, an "I take no position" kind of thing. Like pushing the air away, it distances the speaker from the subject or target. But when you pair it with its commonly associated phrase, you can have something a bit more vulgar. I wouldn't say obscene, but certainly not polite.

In the end, I think the whole thing is a bit of teapotted tempestry, which continues to draw attention for the personality (and fame and controversy) of the central figure rather than for any real content.

After gesturing, according to the same witness, Scalia "immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’" Alas, he should know that few reporters (or photographers) will today honor such a request. After all, it's interesting, it'll draw readers, and it's mildly embarassing.

I guess Scalia's lucky he wasn't a Texas A&M fan rooting for his team.

Tipped off by Matt Bodie of PrawfsBlawg, I note an addition:

Malcolm Gladwell has started blogging. Perhaps best known as the author of The Tipping Point (and its sequel, Blink), as well as a habitual contributor to - actually, a staff writer on - the New Yorker, Malcolm had already contributed to the field of pop psych and explanatory journalism, and by putting his archives online added to the total amount of time it was possible to spend reading fascinating nonfiction online.

Oddly, the blog's name seems to be Gladwell.com, which isn't its address (it's at typepad). Actually visiting gladwell.com produces the author's homepage, with links to his books, and the aforementioned archive. Notable pieces - well, there are tons of them. Think how many outstanding topics Stephen Glass of the New Republic wrote on, and then picture someone who isn't just making stuff up. I have particularly enjoyed the pieces on ketchup varieties (2004), on microexpressions (2002; see also his book Blink), the cutting-edge t-shirt trade (2000), and physical virtuousos (1999; on Gretzky, Yo-Yo Ma, and a brain surgeon named Wilson).

Since I know I *never* commit typos, grammatical errors, solecisms, malapropisms, blatant errors of composition resulting in reversal of intended meaning, or any other sort of language production errors, it delights me no end to pick on others who do. Or more precisely, since I seldom feel comfortable broadcasting my superiority (indeed, invincibility... okay, maybe pseudonymous blogging is going to my head...), I delight when others do the correcting.

So, for example, I like the eggcorn database, where totally comprehensible, somewhat justifiable, and wildly silly reinterpretations (such as "eggcorn" for "acorn" are caught, categorized, tagged and released into the wild. It's like looking at everyone's meta-spellcheck.

I also try not to go overboard making corrections in others' comment spaces. If you blog on something of interest, that's the value; the added value of being corrected (you meant Theirs, not Theres) is minimal. Was your meaning clear? Was the context casual? Was your audience offended? The (usually) obvious answers lead to the conclusion that some typos are okay, and don't detract from the project.

Nevertheless, I found a typo I like, at Chateau D'If, by the blogger dantes (a lawyer in York, PA): The Robe is Off (one in the many, many - many! - posts collected by Howard Bashman about the reaction and backlash to the revelation of the identity of Article III Groupie).

In that post, dantes writes

At any rate, I hope the best for David Lat. I think his unmasking is going to be problematic -- his colleagues and, more significantly, his audience on the 3d Circuit, now know his alterior identity. Here's hoping it's not.

What's the interest? Alterior, a blending of ulterior (as in motive) and alternate. A simple slip of the mind or hand, but also a neat recombination. Was it intentional? Who cares? Like any great work of art, it is its own justification.

Have you got any favorite reinterpretations (eggcorns) or invented words? Bonus points for legal "words."

Since I'm not aware of any Carnival of the Linguists... not that one would need one, since the folks at Language Log are so good at linking to other folks...

Some law-related language and linguistics stuff.

Benjamin Zimmer references eminent legal thinker Chico Marx in the title ("There Ain't No Sanity Clause") of his interesting post on the so-called "liberty clause" of the Constitution - a clause with possibly magical properties, in my view. As Ben points out,

This is, on the face of it, further proof of the cultural divide between legal studies and linguistic studies. A syntactician might think a "one-word clause" in English would need to be an unmodified imperative intransitive verb like "Surrender!" (See Geoffrey Pullum's post on very short sentences.) But of course, the definition of clause in the world of law has nothing to do with syntactic structures. The legal sense, meaning "a distinct article, stipulation, or proviso in a legal document," has a long history in English. (The Oxford English Dictionary offers a quote from Chaucer's Troylus And Criseyde: "He shall me never binde in soche a clause.") Still, could the "liberty clause" really consist of a single word?

The definitive answer: maybe. Check out the post for further updates, including references to Dred Scott, confusion over which part of the Constitution is even involved (14th Amendment? 5th? All of the above?)

There's also a neat post, also at Language Log, about how strange it is to claim that "Scalito" is a diminutive of Scalia - since it isn't, and never was, even though the person who coined the phrase (a journalist) says it is.

Finally in LL matters, there's the amusing situation of artless and, in my view, moronic drafting resulting in a highly ironic result. A statute, clear in intention, designed to protect marriage from incursion, seems to outlaw marriage. Read about how Texas flubs elementary logic in the post Is Marriage Similar or Identical to Itself by Mark Liberman.

I am also moved - almost to tears - by a plaint from Death, a pseudonymous law student (hat tip to Mike at Crime & Federalism). Death (blog name: Death in the Afternoon) mourns the tendency of good writing to disappear under the influence of Law.

Legalizations - meaning specifically the bad language I dub Law-ese - will be reinserted. "The active voice will be trampled and beat back into its passive state. You will no longer use anything, certain objects will be utilized. The court will not find any statute to violate the Constitution, the statute will be held to be unconstitutional by the Court." Death is tilting at windmills, I am afraid. Bad writing is something individual can overcome. There is little to be done, however, about pervasive poor writing - as there is little to be done about pervasive poor thinking.

What we can do is make efforts (where appropriate) to rise above the worst tendencies of lawyers. Take a look in the mirror. Do you abuse jargon? Do you use unwieldy and meaningless phrases because you don't want to be clear and concise? Do you ever use long lists of near-synonyms in order to plug possible loopholes in discovery requests? Do you take refuge in obfuscation?

I was particularly amused by the comment from Evan that Death should relax - partners seldom have time to do a really thorough job of editing your work anyway. A grim hope to hang onto.

In fact, partners (or more-experienced lawyers) may know exactly what they are doing when they beat all the style and rhythm and creativity out of writing. That's because some writing is more than just an amusement. It serves legal purposes - it requests admissions, it crafts demands, it parries, it may even have the force of law, if adopted by a court. In such situations, a young enthusiast's eagerness to inject flavor can do unwitting harm.

I wonder how many junior associates have decided that the memo at hand would be ever so much cleaner if those annoying stock phrases were taken out and replaced with something neat and in plain English... only to be later told that the stock phrase was required, and they'd better revert all their changes, and not get any more bright ideas.

More law-related language and linguistics posts and news as I come across them.

There's been some interest of late ("Man bites dog": a Supreme Court Justice reviews a law Professor's work) in the recent review by Antonin Scalia of Steven D. Smith's Law's Quandary. Over at Language Log, my one-stop source for Things of Interest Lately That Are Linguistically Inclined, I read this fascinating post:

Scalia on the meaning of meaning, Oct. 29, 2005.

In that post, Language Log host and contributor Mark Liberman notes the fascinating contrast between Smith's theory and Scalia's response, played out on the battlefield of linguistic theory. What's the meaning of a word?

Both Smith and Scalia are discussing meaning, significance, and the proper way of determining same. What's the least ambiguous way? What's the most reliable, the most ethical, the most appropriate way? Both must get somewhat theoretical as they grasp for a handle on handles: what are we talking about when we say something means something?

Scalia, as he has historically, disdains the mind of the author. He has consistently derided legislative history - that is, the contemporaneous but un-enacted statements of the people whose job it was to craft the words of the statute. That's because, as with international law, it is easy to look out over a crowd and pick out one's friends; that is, to act unethically as a judge by deliberately pretending that some out of a crowd support your view.

Meanwhile, Scalia views the proper method of interpretation of the Constitution to be the one consistent not only with its words but with the original meaning. Not the intent, perhaps, of the Framers, but the objective meaning the words had as generally understood.

Smith takes a far contrary position, that words are meaningless absent context.

I disagree with Scalia for policy reasons and for political reasons and for legal reasons, but most of all I have to disagree with him for linguistic reasons. His parable, of

Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity.
[...]
As my desert example demonstrates, symbols (such as words) can convey meaning even if there is no intelligent author at all.

is nice poetry, but is weird. Really, really weird.

Mark Liberman does more than just analyze what the two thinkers are saying, he also brings some context.

This debate - where do you look to understand what the meaning is - has aspects of linguistics, in the deep questions of what language is and how it does it. Here's my favorite bit:

It's obvious that the concerns of legislators, lawyers and judges overlap significantly with the subject matter of linguistics and language-related philosophy, and I've always been puzzled about why the real-world interactions between the disciplines and their practitioners seems to be so limited. Reading Scalia's review left me more puzzled than before.

I gather from Scalia's review that Smith's perspective is at least as strongly represented among contemporary legal scholars as Scalia's is. I won't presume to characterize the philosophical state of play on these questions, but let me say that as a practical matter, linguists generally find it necessary to think about both kinds of meaning..."

Liberman's concluding question is a throwaway: "I suppose that legal texts are generally carefully composed and proofread, but errors must occasionally creep in — and do obvious typos or malaprops then have the force of law?" and there's an obvious answer.

Of the many canons of construction, one of them is to disregard minor errors which clearly contradict the entirety of the rest of the corpus, and which would nullify the obvious meaning of the whole. That wasn't supposed to be a second "not"; we judicially omit it. The comma was inadvertent; we disregard it. The word "leaving" was supposed to be "leading," and we take judicial notice of the fact that everyone involved in the whole process believed it did in fact read "leading," and never noticed when it got changed between the final draft and the enacted legislation. Etc.

But Mark's deeper point remains: is there room to synthesize these two putatively opposed views of law and language? I'm not skilled enough on the linguistics side of this to do much heavy lifting there, but I'll see if I can't point up some good stuff in the law to help illuminate this area a little better.

If at first you don't succeed, try, try again. If you are a skydiver, however, we recommend you get it right on the first attempt, and every time thereafter.

The paucity in blog posts lately can be attributed to two main factors: a major trial out of town, and another upcoming major trial. Each case involves more than a week of testimony; more than 5 years of work (not necessarily mine, but that of associates and co-counsel) (not "man-hours" or "person hours," but actual calendar years of work); appeals preceding the actual trials over summary judgment motions, which had to be resolved first; and, therefore, substantial preparation as well as effort to actually try the case.

Neither trial (the one just completed or the other one pending) has or had much prospect of settlement before a verdict. Most cases don't make it to trial. Many trials don't make it to verdict. These particular cases involve such stupendous amounts of effort and such disparate views by defendants and plaintiffs about the value of the case and the likely outcome that it will take a trial in order to resolve.

In this way, a major trial is much like a war. No rational actor would get involved if they could achieve what they wanted some easier way. No rational parties would engage in it if they were going to lose. Obviously, either some parties are irrational or there are some informational assymetries, or systematic biases involved. While I'd love to believe that can be fixed, I'm going to go out on a limb and say that neither lawsuits nor wars are going to be permanently ended anytime soon. Which is good in a way, as I'd be out of a job.

In between trials, I produced another guest post at Evan's blog, this one on language discrimination. As George noted in the comments, he'd already been there and done that. I quite like his post, and if I'd had time, would have used Google Blog Search to ferret out other blog posts on linguistic discrimination, such as Students' Rights to their Own Language, cultural and linguistic minorities, and of course an obligatory link to a post about "Ebonics" and what it should actually be called - and what it is. Alas, I was timeless. Time-free? No, I had no time that was free. You get the drift.

Upcoming posts I have in mind: more on Scalia (natch), more on linguistics, and some more on the nature of blogdom and on the nature of law. That is, expect jurisprudence, if not other sorts of prudence.

Current events: murder! he wrote

Upon overhearing that 23-year-old rapper Cassidy is now being charged with Third, not First degree murder in a sensational case involving, I gather, multiple injuries, at least one death, many shots being fired by Cassidy's associates, and cries of outrage on both sides...

I felt that now was a good time to post on some of the basics of criminal law.

The definition of Third degree, but first, a totally irrelevant digression

Third degree murder, by way of introduction, has no one defintion, just like First degree murder. For crimes in general, First degree is more serious. (Warning: massive digression ahead! May contain needless musings on the use and meanings of words!)

Back now to our regularly scheduled discussion on murder and crime.

End of digression: on gradations of crime, and deterrence

Many felonies and a number of misdemeanors involve gradations, levels of severity. First degree this versus second-degree (less serious) that. Again, the definitions vary from place to place. The reason for differentiation is that we want people to not commit crime; failing that, we want them to commit the least crime, or the safest crime, possible. So, if you're going to be killing people, we want you to stop at one, or if you must kill more than one, to not kill them in really-really-bad ways. That's why we have First Degree murder, which is not necessarily the same as capital murder, but can be; capital murder just means the death penalty is on the table. Usually a lesser charge than 1st degree cannot be capital, but again it's up to the legislature to make that kind of call.

[note: The Smallest Defender (tSD) takes issue with the above, which I think I largely cribbed from my (wildly interesting, but certainly not universally agreed-with) criminal law professor. tLD argues,

I think I disagree that the gradations of crime are to encourage people to commit the least crime possible. Instead, I would say that in american jurisprudence we have a very strong notion that the punishment should fit the crime as exactly as possible (that is, except for drug possession, where public outcry has run roughshod with sentencing). Thus, gradations for a crime are rubrics that allow for the assessment of the actual act done in order to assess the correct penalty.

Frankly, I don't feel qualified to say which is the "right" interpretation of our sentencing and criminal justice systems, and so I present you with both interpretations in hopes they are interesting or useful. Now, on with my own argument!]

A legislature could choose to be silly, and allow the death penalty for involuntary manslaughter (off-the-cuff definition: by the creation of a substantial and unjustifiable risk of injury or death to another, inadvertently but recklessly causing a death).

Compare involuntary man to voluntary manslaughter, where the act is intentional but the circumstances are slightly more understandable, excusable, or justifiable (depending on your theory of excuse, justification, and dessert). That is, if you come home and discover your beloved cat in the arms of another owner, and fly into a rage, you probably are not justified in killing them or anyone else. But a spouse, and the law tends to accept that you had a real good reason to fly into a rage, and though it was wrong, it was not as wrong as if you had not been

• actually under the effects of
  a sudden, violent passion, brought on by
  certain adequate provocation.

I intentionally avoided the word "under the influence," which has another meaning in a different context.

So, if you have the death penalty for tax fraud and for jaywalking and for assault and battery and for third degree murder, then the cost-benefit calculus is all wrong. If I commit an unarmed robbery (threatening someone with my big muscles, say) and then flee with the loot, and in the process am chased by police, a "rational" criminal might compare their options. I can submit, and face prison (or death, in my example above), or I can run, risking greater jail time but possibly gaining a chance at escaping the long arm of the law.

Or, to change the hypothetical if I know that by committing armed robbery during which I shot and wounded an innocent bystander I am almost certain to receive a death sentence, I have nothing to lose and _everything_ to gain by killing witnesses, killing police officers, and slaughtering everyone I come across. After all, we don't have punishments more severe than death. Logically, then, punishments as severe as death should be reserved. Not just for deaths; but for extraordinary deaths.

If the armed robber knows that he's up for life in prison (armed robbery, felony assault with a deadly weapon, evading arrest, reckless endangerment, this is such a wide-open issue-spotting exam-type question that most law students could identify possible crimes for half an hour of scribbling without exhausting the possibilities) already, we want him to try to escape carefully, if he must try to escape. No firing wildly at police officers. No running down pregnant women in the street. We want him to drive away slowly.

In any case, Cassidy is up for Third, not First, degree murder. So instead of a likely life in prison sentence, he is probably facing a sentence of 20 to 40 years if convicted and not pardoned.

Summary of the various kinds of homicide

Involuntary manslaughter, as I mentioned above, is a "risk-creation" offense (usually). Voluntary manslaughter, as I also discussed, is an intent crime with a mitigating (not aggravating) factor: high emotional disturbance caused by a "legally adequate provocation" (usually; check your local listings for time and station).

Murder is the intentional unlawful and unjustified killing of another (lets out military service, unless you happen to also commit a wrongful killing there, say of fellow soldiers or officers, or civilians, etc.), and also lets out suicide. Suicide may be a crime (who you prosecute?) but it's not a crime _against another_ unless you are also committing another crime, like insurance fraud). First degree requires premeditation or other aggravating factors on top of an unlawful intentional killing. Second degree is the same without the aggravating factor. Third degree is... well, it depends. Is it an intentional killing under forgiveable circumstances? Is it the same as voluntary manslaughter, but more so? In many jurisdictions, including I believe Pennsylvania, Third Degree Murder is defined along these lines:

"Any murder that is not first- or second-degree murder" which apparently includes or possibly equals "A murder committed in the perpetration of a felony not listed" among certain enumerated ones, chosen by the legislature.

There's also lesser risk-creation crimes, like "negligent homicide," which requires only that the death of another was wrongfully caused by the negligent or unintentionally careless acts of the defendant.

In other news: Third degree (not First degree) in Allegheny; also the Train Wreck case
Scott Werner, 47, of West Deer in Allegheny County, PA, was convicted after more than 12 hours of jury deliberation, of the same crime: Third degree murder. His crime apparently involved a highly personal and highly upsetting set of facts: stabbing his wife to death after a heated argument, taking his then-9 year old daughter to Clarion County, and planning to kill himself. Ugly stuff, but also a fairly good case for third degree murder. Some were disappointed on each side; the defense argued for a manslaughter conviction, and the prosecution wanted a First degree conviction.

First degree involves some aggravating factor over and above intentional murder. If I picked up an object at random on my desk, say a telephone, and suddenly turned to the window and targeted someone down there and threw the telephone intending to kill them, it's probably second degree murder if I do in fact kill them, unless we invent more facts. If I purchase a gun intending to attack someone the same way, I would think it was evidence of premeditation, which is the kind of aggravation which can produce First degree. Other aggravating factors vary by jurisdiction, but may include

• killing the victim of a kidnapping



• killing a witness to another crime in order to prevent them from testifying (compare this to "professional fouls" in the rules of soccer; committing a foul in order to avoid a negative result - a goal being scored - is very serious, and should result in ejection from the match), or
  
  killing a police officer in the line of duty.

At DUIblog, there has been excellent coverage of "vehicular manslaughter" versus "murder by intoxicated driving," which is a bizarre and unjustifiable extension of the law of premeditation and intoxication to turn drunk driving (a bad idea, risky, stupid) into First degree murder (utterly evil, intentional, premeditated). There is also a legally interesting analysis of the infamous train wreck disaster from January, 2005, see Overkill: DUI, Train Wrecks and Murder. Money quote:

A deeply disturbed man, trying to commit suicide, sits in his car on the train tracks and just before the collision panics and jumps out of the car. The offense should be obvious: multiple counts of involuntary manslaughter . (By a great stretch of logic, one could argue 2nd degree murder due to "conscious/willful disregard for the lives of others", although that seems refuted by his mental state and wandering through the carnage afterwards crying out "I'm sorry, I'm so sorry".)

Yesterday, however, he was charged with eleven counts of murder. And the media has been loudly reporting (hoping?) that the D.A.'s office will be seeking the death penalty. Even the staid New York Times reported that the District Attorney, "his voice firm with anger", said that "Because this man was distressed, 11 people are dead from his selfishness" and that he was considering the death penalty.

When did we start executing people because they were distressed or selfish? Or, as in DUI cases, stupid or reckless? Whatever happened to "cold, calculating and premeditated"?

Emphasis mine.

I intend to post in the near future (over the next few months) about white collar crime, conspiracy, hearsay and other evidential problems in litigation generally, and international crimes. Fortunately, White Collar Crime Prof Blog, JuryGeek, and Crime & Federalism are out ahead of me here, and most likely I will be able to collect their posts of interest, add my thoughts, and voila: instant relevance.

I. the Pledge

Today's post comes to you in no small part because of an old post on Volokh.com by Unindicted Co-Conspirator Jacob Levy. He wrote about the Pledge on March 25, 2004, and it's been kicking around in my head ever since.



You may notice I brought up Scalia again, near the end there. Well, he's my bete noire, and simultaneously my touchstone of What's Right; if Scalia agrees with it, I feel a pressing need to think long and hard about why he might be right, and a reasoned explanation for why he might be wrong. He's not always wrong; far from it. Only on some of the big questions.

I promise, I promise, I'll get to the Scalia mega-post shortly. I pledge it'll be done soon.

[update: a big hello to Blawg Review readers, and a thank-you to Patent Baristas for including this post.]

In which I consider words which are not euphonious; indeed, they are dysphonious. Do not read on if you are easily upset by mention of (without use of) the N-word, or by linguistic discussions.

First things first:

The (undeniably ugly) word Niggardly has no connection...

I have one final question: given the prejudices society has against the various so-called Four Letter Words [which vary in length from 3 to much more than 8, when you start combining them; see the FCC for more details], can you think of other "harmless" words which can or should be avoided by the thoughtful writer or speaker to avoid giving insult? There's lots of silly puns, of course; virtually every "sophomoric" dirty joke depends on one or more. And my own personal favorite:

In the movie Kinsey (recommended), an interviewee claims (rest hidden to save sensitive souls)