Book Review (and subtext)

The recent publication of  [.......] by Professor X marks a moment in the history of [.......].  It establishes him as one of the leading, if not the leading, authority on the subject of [.......].

Professor X works at Zip Code Law School and I would like a job there too.

The work is lucid, path-breaking, and a real moment marking the advent of [.......].

In the American legal academy, there is no praise too effusive or adulation too florid to be believed by its addressee.  I have learned this lesson well and I’ve got the game down.

The book is:

Brilliant

Occasionally insightful

Able

Moderately competent

Surprising

Off the wall

Novel

0.2 standard deviations from the norm

A tour de force

Rather improbable 

In a previous work, Professor X argued that [.......].

Professor X has managed to squeeze out yet another publication rehearsing his same old themes. 

The book offers a number of interesting new twists on ideas first articulated by [.......], [.......], and [.......]

I’ve read the thing from cover to cover and I’ll be damned if I understand why anyone is paying so much attention to the thing.  I mean there’s not a new idea within a 50-mile radius of the thing.

Professor X begins with an excellent discussion of [.......] providing a rich context for [.......].

Professor X devotes more than half the book to a rehash of the prior work of others.  Lord save us from the University Press editors, dissertation disease, and the well-intentioned, but grossly misguided, demands of academic reviewers for more elaboration, more examples, and more documentation.

And yet…if one follows the searing criticisms I painstakingly set forth below, one will see that the book emerges as fatally flawed, question-begging, misframed, insufficiently supported, etc.

Aren’t my criticisms just the bomb?  I mean really.

Nonetheless, despite my criticisms, the book remains a brilliant work.  Indeed, notwithstanding my searing criticisms, Professor X’s work emerges as a profound and lasting contribution to [.......].

On balance, I really and truly would like a position at Zip Code Law School.  Also please know that in the future, sometime, I plan to dedicate myself full time to writing what I really think…  probably starting next year…  or at least very soon… though not too soon, of course… with the outside chance of maybe not at all… and, actually, come to think of it, like Professor X himself: never.  

Posted in BAT Reviews, Experimental, Random Jurisprudence | Tagged , , , | 1 Comment

We Built It (Part II–Factors of Production)

“We built it.”  So runs the mantra of the GOP.   To which there is only one possible response: Well, actually no you didn’t.   And let me explain why since it’s not addressed in my last post on this subject.

First, let’s imagine who “you” are and why you might reasonably think you did build it.   So let’s imagine that you own a small business. You started small.  You worked hard.  You took risks.   You leased space.  You got loans.  You did all sorts of stuff.    Some of it was damned hard.   And now, you have… let’s say a successful 10-year old Italian restaurant.   And it pretty much feels like you really did build it.   And the best proof that you built it (as you see the matter) is that without you–this business would not exist.   Voila and Q.E.D.  You built it.

Wrong.

The easy way to put it goes like this:

First, let’s concede arguendo that certain things about the restaurant are attributable to your personal touch.  Say, the Abruzzo tomato sauce, the painting of Perugia on the wall, the… etc.  These things (now, of course, they’re not all yours) would not be there without you.  And the charm—the personal touches you bring to the business—also would not be there without you.  Or at least, the particular combination of personal touches you bring is unlikely to be reproducible by anyone else.  So let’s say this is yours (even though, of course, it really isn’t entirely, but….)

How then does your view of the matter go wrong?  It goes wrong because these “personal touches” are not synonymous or coterminous with “it”—the business you supposedly built.  In fact, and with all due respect, they are only a small part of “it”—the business you supposedly built.  The main contributions are the capital equipment, the physical plant, the labor force you employ, the infrastructures you depend upon, the infrastructures your suppliers depend upon and all sorts of other stuff, knowledge, capacities, competencies you did not build even if—and this is not nothing—you brought them all together.

What “you” (another term that will soon come under fire) need to recognize is that there are all sorts of things that have contributed to the building of this small business.  Among them:  A few millennia of human history bringing all sorts of knowledges, human management, capital equipment, and an available labor force up to speed; years of training in public school provided by taxpayers; all sorts of infrastructure enabling you to purchase foodstuffs, equipment, and to hire competent employees, etc. etc. etc.

These are all called factors of production.  And the thing that allows you to say that you “built it” is that you discount all those factors of production.  You take the roads, the schools, the laws, the employees, the culture as a given—as the background or normal state of affairs, as a baseline.   And so, taking these things as the baseline, you naturally think that if this small Italian restaurant exists, it is because you built it.

But this is wrong.  Way wrong.  ”You,” relative to all these other factors of production, have actually added very (very) little.  We would have a hard time substituting a few millennia of history, an advanced post-industrial economic infrastructure, twentieth century schooling and knowledge.   Replacing you, however, would be very (very) easy.  In fact, it is a sure bet, that were it not for you, there would be somebody else (probably slightly less efficient, with slightly fewer comparative advantages) who could and in fact would take your place.  This person is, if we hew to Chicago School economics, marginally less efficient than you—but that’s about it.  So in terms of marginal productivity, you, relative to the other factors of production, are almost trivial—eminently replaceable.  Viewed in terms of marginal substitutability of a factor of production, you (again with all due respect) are pretty insignificant.  So if we were to ask in a realistic way, did you build it?—the answer would have to be that among all the factors of production contributing to the establishment of your small business, you come in (once again with all due respect) probably… very (very) far down the list.

Now, exactly where down the list is not entirely clear.  Among other things the answer would depend on how we carve up—what taxonomy we use—to describe our factors of production.   This brings in a certain degree of arbitrariness….

…and a kind of unnerving postmodern problem.   We are now going to turn from talking about “it” the thing that you supposedly built (but did not) to a more perplexing postmodern concern—namely, “you.”   “You” too is in trouble.

The fact of the matter is that—and this causes me a slight embarrassment—economically speaking, you (or in your case, “I”) is not really a category we can deal with very well.  You just don’t register very well or very deeply, economically speaking.  You are too abstract (we really don’t know who or what you are economically.)  And you are too concrete (you are too diversified internally for us to aggregate in a single economic category with any real content.)  In a phrase, you are, economically speaking, a thin category (more on that in a later post).  You’re not really labor or capital or any one such thing.   And though it is true you own a small business, it would be wrong to say that you are the small business itself (and besides small business is a legal not an economic category.)

All of this helps explain why—see the last post—you might feel somewhat anxious about it all.   There’s reason to be.  But in this regard, you are not alone.  Everybody feels more anxious.   Why?  Because the social bonds that you have so ardently disdained, rejected, and abused in the name of unbridled individualism (does this mean cheaper prices at Walmart?) have in large measure already largely melted away–so that the “you” that remains is, well, getting rather thin, somewhat indistinct, not quite in focus.    It’s no fun.   No fun at all.  Again, if only you could realize that you are not alone in all this….

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Ryan’s Scariest Lie

I know sub-three hour marathoners, I am friends with sub-three hour marathoners, and I have run a sub-three hour marathon.  Paul Ryan, you are no sub-three hour marathoner.

To many, Paul Ryan’s marathon lie is probably the most innocuous one he told in the last couple of weeks.  That one about the Janesville auto plant seems worse.  The one about Obama rejecting the bipartisan debt commission’s recommendations worse yet.  And so on.  So why is his lie about running a sub-3 marathon so creepy?

First, in case it is not clear.  It is a LIE, not a slip of the tongue or a misremembered fact.  To the interviewer who asked him what his personal record in the marathon was, Ryan answered:  ”Under three, high twos. I had a two hour and fifty-something.” In three different ways, Ryan said that he ran 26.2 miles in under three hours!  When caught red-footed by Runner’s World, Ryan’s lame response was: ”The race was more than 20 years ago, but my brother Tobin—who ran Boston last year—reminds me that he is the owner of the fastest marathon in the family and has never himself ran a sub-three. If I were to do any rounding, it would certainly be to four hours, not three. He gave me a good ribbing over this at dinner tonight.”  Instead, Ryan should have said, “I know.  That was a complete and bald-faced lie.  I apologize.  I guess I thought I could get away with it, like I do so many other things.  Have you noticed that my hair is very thick?”

Now that that’s settled, why is the lie so disturbing?  Because it was so utterly unnecessary.  Only runner geeks like me and my friends (and Elliot Spitzer, whose marathon p.r. is apparently faster than Ryan’s but slower than mine!) care about marathon times.  The country as a whole would not be terribly impressed with what is a big deal (and it really is, and Ryan knew it; see above about the LIE) in our small and semi-masochistic circles.  So why lie?  Why try to claim, simply by saying it, what others claim solely after mingling their given talent with intense training, and then pulling it all together on race day?  The casualness, the pettiness, the nonchalance of the lie is what smacks of pathology.  Why not lie?  That’s Ryan’s default position.  Lie, and then backtrack a bit and move on.  Have you noticed that his hair is very thick?

But it’s not funny.  If the guy gets in office, the lies will be even thicker.

Posted in Politics | Tagged , , | 5 Comments

We Built It (Part I Losing It)

We built it.   It.  We.  Not you.  Not the government.  It belongs to us.  It is ours.  We work harder than you.  You cannot know how hard we work to build our small businesses.  (100 to 1500).  We work harder than our workers who we do not talk about.  Because they did not built it.   We built it.  Except to the extent that the workers are our fathers who were coal miners pursuing the American Dream who would one day be mentioned by their sons at a Republican Convention in Florida.  We are the sons who are the ones who built it.  We built it because we love freedom and we are the backbone and love freedom because freedom is free and it is the American dream.  Which we built.  Out of freedom.  Which is us.  And which you want to take away.  Even though it is not yours.  Because it is ours.  Because we built it.

Hello?

Hello?

Anyone?  Oh, shit.

A delegate from Texas waits for the start of the session during the second day of the Republican National Convention in Tampa, Florida August 28, 2012. REUTERS/Eric Thayer

Posted in Experimental | 3 Comments

Lance Armstrong and Our Illusions

Lance Armstrong “gave up his fight against doping accusations.” This is how it is being reported, based on Armstrong’s bristly and defiant letter of concession. Presumably, Armstrong thinks that he maintains plausible deniability (and millions of dollars in sponsorships) this way. He can continue to say that he is being persecuted by the US Anti-Doping Agency, that they were on a “witch hunt,” that the ten witnesses who were prepared to testify against him were offered “sweet heart deals” for their own doping charges, that, in short, he is innocent and has been done wrong. Of course this is not really plausible. If Armstrong had a decent defense, he would have been able to secure at least a compromised result.  One rumor circulating earlier this summer within obscure insider-athletic circles, for example, was that Armstrong would be stripped of a few Tour de France victories in exchange for keeping the rest and maintaining some of his stature, and perhaps a wee bit of dignity. His failure to pull that off is some indication of the strength of the case against him.  Why would the US Anti-Doping Agency compromise at all if they could nail him for cheating during all seven tours?  Armstrong’s decision to stop fighting the charges deprives us of the evidence that would have been presented, but we know that the ten witnesses included George Hincapie, one of the most respected US cyclists and Armstrong’s long-time team mate, and that the accusations included use of EPO (a banned blood booster), blood transfusions, corticosteroids, and testosterone.  We also know that Armstrong had blood profiles in two years, 2009 and 2010, that were consistent with doping.

Still, why jump to the extraordinary conclusion, in the absence of a trial with all of the evidence vetted and assessed, that America’s best cyclist ever cheated throughout his entire career without once failing a drug test outright? First, as all the experts will attest, the testing is never as good as the cheating. A lot of cheating happens during training, in particular the use of banned steroids or hormones.  Even cheating that is integral to racing, such as blood doping or transfusions, can be very difficult to detect in a timely way. Second, and this is the hard part for many sports fans, it has been common knowledge for years within cycling circles that the only way to make it is to cheat. Talk to anyone who has spent any time in men’s professional cycling in the last two decades or so and they will tell you… “I faced a choice.  Start taking the meds or give it up.  Go see ‘the doctor’ or you are not going to make it.”  Furthermore, the rampant doping and drug use in cycling has been officially well known for at least the past several years, thanks to the various crack-downs by professional cycling agencies.

How can something be so very well known in some circles, and yet so hidden and unbelievable to the average American sports fan?  In part, it is because American sports fans love their illusions as much as they love their athletes.  We want more and faster records.  We want spectacular longevity and strength.  We want wins and world championships.  And yet, also consistent with some aspect of our national character, we want it all without wanting to know about the dirty things that make it possible.  We are sort of sweet and naive that way.  We are therefore shocked and bitterly disappointed when confronted with the fact that our athlete/heroes were human after all.  In Armstrong’s case, being human meant that in order to win in a sport filled with dopers, he would have to dope smarter and better.  For a long time he did, and doing so enabled him to train ferociously.  There is something to admire in that– being the most cunning and driven cheater.  Yet it is closer to admiring famous bank robbers than olympian athletes.

Professional cycling is in a state of transition, and may be heading back to the pre-illicit substance days.  If so, the best thing American sports fans could do would be to celebrate our athletes’ quiet victories and applaud their monstrous efforts as much as or more than their bling. (And here, a shout out to fourth place Olympian Taylor Phinney is in order.) If that fails to satisfy, the other alternative is to drop the illusions and hope for the next gangster who will cheat and claw his way to humanly impossible success.

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Italy and The Case Method

Last week I was in Italy for a couple lectures.    I love going to Europe for talks.  Among other things, it reminds me how cloistered and parochial we are in the American legal academy.  It shakes me out of my jurisprudential somnolence.  It reminds me that there are other ways of doing things.

This time it reminded me of a small idea–a small idea about a big problem confronting law teaching in America.  The big problem (in fact, it’s my candidate for the biggest problem) is the tacit jurisprudence of the classroom—one which is almost never questioned, never discussed, never criticized and thus swallows everything in its path.   This tacit jurisprudence is so successful that it never features as a jurisprudence at all, but registers quite simply as “law” itself.      This tacit jurisprudence of the classroom is the one that inculcates repeatedly, the idea that judicial opinions, statutes, regs and other such official texts are the repositories of law and that the task of the teacher is to help the students extricate the meaning of these artifacts.

This simple idea (and in part, it is an idea) effectively turns professors into facilitators.   Hence, our assigned roles as professors is to facilitate.  It is not to profess, it is not to teach what we think matters or is important about our subjects or any such thing.  No, our assigned role—what we are called forth to do—is to assist students in accessing “the law” that is found in these official texts–the judicial opinions, statutes, regs. etc.  Now, of course, one can have a more rather than a less sophisticated sense of just what can be found in/elicited from these artifacts.  And one can variously try to “supplement” them with this or that learning.  And this is not nothing.   But let’s not kid ourselves.  Always the facticity, the gravitas and the presumed authority of the official artifacts will pull the class back to the opinions, statutes, and regs as the true repositories of law.  And note here that my beef is not just with overwhelming importance we attach to these particular artifacts.  My beef is also that we tend to treat these artifacts as repositories of meaning.

Why do faculty accede so readily?   Umpteen reasons.   But the one I will give here is that no one—not the students, not the faculty—want to face up in any serious way to the obvious alternative.   We have two choices.  1) Either law can be found in/elicited from these official artifacts through the usual exegetical techniques or 2)…… ?   Yes, that’s right:  Option 2 is currently blank–not fully formed, perhaps not formed at all.  It would have to be created.  The texts would have to be written.  It would require a lot of hard work.  You would need a group of people.

Still, hope springs eternal.  And so I have to think that Option 2 might appeal to someone.   One could hope to find someone who would say: “Look at this law stuff.  How cool is this?–there’s virtually nothing here!   A lot noise for sure.  But very repetitive.  And the formalizations–so brittle.   It’s awesome.   We can really do something with this!”

Posted in Random Jurisprudence, Uncategorized | Tagged , , | 1 Comment

Gun Culture

Whatever the Second Amendment means, the problem for our society is that we have internalized the notion not only that we have the right to own guns, but we all should actually own one.  The NRA’s political and legal successes have led to a state of affairs in which even pacifist, urban nerds who rarely shed their loafers, let alone don hunting camo, feel compelled to buy firearms.  The legal right, though still subject to regulation, has become all but unimpeachable, and has generated a cultural norm.  What is the evidence for this?  First, notwithstanding the highly contested nature of the claim that gun ownership makes us safer, gun sales shot up in Colorado and throughout the country in the days following the killings in Aurora.  Second, and not quantitatively, I have recently learned that relatives and neighbors, who more or less fit the urban-nerd description above, own guns, even though they confess to being utterly unprepared to use them.

Dan Kahan has persuasively argued that cultural norms and identity drive perceptions about the gun control policy debate.  But the political tide in recent years seems to have eclipsed that useful insight.  The NRA’s lobbying might (backed by a seemingly endless stream of money from gun manufacturers and distributors) has made discussions about gun control toxic for republicans and a loser for democrats, so legislative reform is typically dead on arrival, particularly in election years.  (Sandy Levinson, among others, has pointed out the lame nature of Romney and Obama’s initial reactions to the Aurora shootings.)  In other words, the gun control policy debate is largely over, and one set of cultural norms (those that associate gun ownership with tradition, freedom, and liberty) not only prevailed over the policy, but now threaten to swamp the rest of the culture too.

With the legal right to own guns entrenched, and the policy forum all but captured by the NRA, might there now be room to fight back on the norm?  What if we started to make statements like the following:  ”There may be a legal right to be free from certain kinds of gun regulation, and for some individuals and communities, gun use may be appropriate, but that does not mean that every man and woman should actually own a gun.”

It seems at least worth a try.  While empirical evidence supporting gun control laws may be equivocal, there is less evidence to support the proposition that universal gun ownership makes us safe.  The Aurora shooting provides some indication of why the evidence is lacking.  Those intent on mass murder rarely act in circumstances that allow their victims to respond with care and deliberation.  In Aurora, the shooter released smoke throughout an already dark theater before spraying the crowd with rapid-fire rounds from his semi-automatic.  In addition, many gun owners who did not grow up around guns learned to shoot only in the structured environment of a firing range.  They are not prepared, mentally or physically, to shoot to kill.  And that may be to the good, because the ultimate argument is not empirical.  It is about what our country would look and feel like if we decided to make it “safe” by arming every man and woman and expecting them to shoot their way to a secure civil society.   We would live in a world where we all stand armed, ready to kill one another in order to be safe.  That does not sound like freedom to me.

In the wake of Aurora, there have been some hopeful signs that the way we talk about guns may be shifting.  Perhaps the NRA’s near-hegemony on gun rights will, ironically, open space to talk about the wrongs of gun ownership, legal or not.  There are lots of voices that could join in this chorus, irrespective of their views about the law.  And there are plenty of analogies to draw from.  Legal prohibition of alcohol proved to be a flop, but the fact that every adult can buy booze does not translate into a norm that everyone should drink.  Cigarettes are not (yet?) per se illegal, but norms about smoking have come to an about-face from the Madmen days.  The list could go on.  The point is that the NRA succeeded in tying culture to gun rights in order to win political and legal battles.  It is time to decouple the legal right from the cultural norm, and put guns back in their limited place.

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