BeldarBlog

And after Kim hands over his nukes, we'll all ride our bicycles together over the moon, me and Kim and Kofi ...

I expect pretty much the entire world, civilized and un-, is rejoicing over this.

Stop it! Don't laugh. Don't!

Don't.

She is one of Charlie's Angels. C'mon. And I'll bet there's some plan afoot that involves Lucy Liu pretending to be Korean ....

(Hat-tip to AllahPundit.)

Student law review editors

A post by blawger Scheherazade entitled "Why Law Review Is A Waste Of Time" prompted a number of responses on her own blawg and elsewhere, many of which she's thoughtfully linked. UCLA Law Professor Stephen Bainbridge in turn quotes from one of those responses, from blawger Evan Schaeffer:

So to answer Sherry's question, what was valuable about the experience? Once you got over the initial cite-checking hurdle, all of the third year editorial staff, from the editor-in-chief on down, learned skills like these: how to manage large projects to completion, how to take a small budget and use it to accomplish large things, how to manage a distracted staff, each working on a little piece of a giant puzzle. These lessons were in addition to all the good that came from learning about editing and fact-checking (skills often learned the hard way, since even some of the best stuff we accepted for publication had to be substantially rewritten. The authors of the articles, by the way, gladly accepted this "student editing").

In the dissenting voice of someone who has dealt with one too many young whippersnappers, however, Prof. Bainbridge allows:

I was nodding in agreement until I hit the parenthetical. Early in my career, I had law review editors try rewriting my articles. They never improved the article; to the contrary, they often introduced serious errors of substance or grammar. The higher the law review was ranked, the more serious the problem seemed to be. Once I got tenure, and getting published in a hurry was no longer at issue, I began putting a clause in the publication agreement giving me the right to pull the article from the journal if I disagreed with the editors. I've never had to use it, but I have had to threaten doing it a couple of times.

My own history as a member and editor of the Texas Law Review more than two decades ago puts me firmly into Schaeffer's camp regarding the pros and cons of law review service. The year I spent as an editor did more to improve my own writing, legal and nonlegal, than anything before or since (although my immediate post-graduate experience as a law clerk for a Fifth Circuit judge would run a close second). In particular, going through the editing process on my own law review note, and then spending a year as an editor myself, taught me how much anyone's writing can be improved by a fresh set of critical eyes — something that, unfortunately, my blogging gets only after it's published, if then.

But I certainly can appreciate and sympathize with Prof. Bainbridge's aggravation. And our unwritten, unacknowledged editorial policies back then on the TLR dove-tailed with the personal experience he reports from an author's perspective: How aggressively we student editors wielded our colored pencils (in those pre-PC, typewriter-dependent days) had quite a bit to do with whether we were editing manuscript from a student writer, a junior law faculty member, or an acknowledged superstar of the celestial legal-academic firmament. We were keenly aware with whom we had leverage — and the leverage was (a) inversely proportional to how badly we wanted that author's work in our journal and (b) directly proportional to how badly that author needed to be published by us.

I was our journal's book review editor. Our strategy at Texas was to make copious use of contacts and recommendations from our own faculty members — combined with heavy flattery and a light editorial pencil (both my job) — in soliciting book review projects from famous law professors who could get their articles published in the half-dozen or so most prestigious law reviews, and who therefore wouldn't usually submit those articles to us. Our journal's national reputation was sufficient that publishing with us was not beneath the dignity of those heavy hitters; and even the meaty, substantive book reviews we sought were easier to write than a stand-alone article.

"Dear Prof. A___," I'd write. "I was just discussing with Professor B___ of our faculty (who sends his regards to you)" — shameless namedropping, always with the permission of Prof. B___ — "the new book just published by Prof. C___," who would always be another big-name heavy-hitter. "Prof. B___ speculated that you, Professor A__ — in particular out of all the law faculty in America — would likely have an interesting, even compelling, reaction to Prof. C__'s work! Using Prof. C___'s book as a springboard for your own thoughts, would you consider writing a book review for the Texas Law Review?" We'd explicitly promise light editing and quick publication as additional bonuses. The strategy worked pretty well for us.

Prof. Bainbridge's lament, though, particularly brought to mind a book review written by our campus' resident superstar, the late and truly great Prof. Charles Alan Wright, that I had the privilege of editing. All of my lawyer readers will recognize Prof. Wright as the senior co-author of the definitive multi-volume treatise on federal practice and procedure, along with leading handbooks on the federal courts and on constitutional law, and one of the last century's most distinguished professors, scholars, and appellate lawyers — a true statesman and genius of the law.

The subject book was about the history of the Supreme Court. Fortunately and unsurprisingly, the raw manuscript that Prof. Wright submitted needed only the lightest of editing anyway. But I remember being a bit surprised that in one place, Prof. Wright had referred to a particular nineteenth century Chief Justice as "Chief Justice of the Supreme Court."

"Aha!" I thought to myself very proudly, "I happen to know that unlike the Associate Justices, who may properly be called 'Associate Justices of the Supreme Court,' the Chief Justice has a unique title recognizing his position as not only the head of that Court, but of the entire federal judiciary — 'Chief Justice of the United States.'" So I duly penciled in that change on the manuscript before sending it back to Prof. Wright for his review.

We went over all of my proposed changes in his office one afternoon, and he was very gracious about accepting all my suggestions — except this one. I explained my rationale, trying very hard not to look smug — at which point Prof. Wright peered at me over the top of his reading glasses, paused, and then said: "Mr. Dyer, I ask you simply to trust me on this one, for the afternoon grows late and I have other places I need to be soon." I gulped and relented immediately, changing the reference back to "Chief Justice of the Supreme Court." (Even a third-year law student should know when to stop tugging on Superman's cape.) And when my co-editors raised the same point, I shrugged and told them that I'd gone over it with him, that he'd rejected my suggestion, and — well, that he was Charles Alan Wright, and if he wanted it that way, we'd best not press the issue further.

A few weeks after Prof. Wright's book review was published, he sent me a copy of a letter he'd received from a young law professor at another school. The letter was extremely polite and complimented Prof. Wright on the book review he'd written, but said, "I believe I've caught Homer nodding," and then went through an explanation of the same distinction that I had tried to raise.

But Prof. Wright had also sent me a copy of his reply to this professor, which he'd begun by thanking the young man for his interest. "A student editor," he wrote, "had made the same observation before the book review's publication." Then — no doubt drawing solely from his prodigious and legendary memory — Prof. Wright's letter proceeded to track all of the various versions of the United States Judiciary Act enacted from 1789 to the present, complete with detailed citations, as he explained that the statutory language authorizing the position of "Chief Justice" had been changed for a brief period in the nineteenth century during which the official title was, indeed, "Chief Justice of the Supreme Court," rather than "Chief Justice of the United States." The individual referenced in Prof. Wright's book review had, of course, been Chief Justice during that period. Prof. Wright politely closed with, "Please be so kind as to let me know immediately if you ever again believe that you have caught me in an error regarding the Supreme Court and its Justices."

So to Prof. Bainbridge's implied charge that student law review editors can be impertinent young whippersnappers who sometimes screw up what they're trying to fix, I must confess my own guilt. To this good day, I am profoundly grateful that Prof. Wright spared me the withering embarrassment that must have been felt by the young law professor who'd written to point out Prof. Wright's "error."

Juries in complex civil cases

The Curmudgeonly Clerk argues persuasively in favor of the jury system even in complex civil cases, with this conclusion:

The jury system has shortcomings that are fairly obvious. These shortcomings are, no doubt, pronounced in complex civil cases. Nonetheless, I think that the contempt sometimes expressed for jurors is overstated (e.g., the derisive observation that cases are decided by twelve persons too dim to avoid jury duty).

I agree entirely, and reprint here a lengthy comment I left on his blog with a personal anecdote:

A few years ago I spent six weeks in a Harris County District Court trying a "bet-the-company" securities/accounting fraud case to a jury of twelve citizens good and true. The plaintiffs were two Middle Eastern investment trusts incorporated in the Netherlands Antilles; the defendant was an American Stock Exchange-listed New York-based company that was an early investor in international cellular telephone licenses.

In addition to about a dozen lay witnesses, over a dozen different lawyers or accountants — from Houston, Washington, New York, and London — gave expert testimony on topics including GAAP (generally accepted accounting principles), corporate finance, international intellectual property rights, and the proper discount to apply to restricted shares of stock in a company whose unrestricted shares traded on the London Stock Exchange. All of those subjects were important to understand in order to evaluate what was, necessarily, a largely circumstantial case regarding the defendant's subjective intent to commit fraud. There were over 600 written exhibits, many of them hundreds of pages long and extremely technical (including SEC filings, corporate charters and minutes, and patent applications).

In short, the case was a textbook example of a complex commercial case of the sort that many "experts" insist cannot be effectively evaluated by lay jurors.

The plaintiffs were represented by a first-string team from one of Texas' largest, oldest, and most prestigious law firms. Their lawyers were very experienced, very ethical, and very, very good, and they employed professional jury selection consultants, a "shadow" jury, and a professional graphics/demonstrative exhibits firm. The defendant was represented by a much leaner, but still very competent team that I had the privilege of leading. Each side's pretrial legal fees and expenses ran into seven figures, but the amount in controversy ran well into the eight-figure range and the underlying business transaction was in nine figures — so each side had ample incentive to do its best. The plaintiffs were sufficiently wealthy that they could well afford to pay their counsel's regular hourly rates, and they were under no pressure to settle; and indeed, the parties were still tens of millions of dollars apart when pretrial settlement negotiations (including a court-ordered mediation) were exhausted. The case had to be tried.

The trial judge was a very experienced veteran who specifically chose this trial to be the last he presided over before his retirement. Like many state-court judges, his natural inclination was to give the lawyers wide latitude — to "let it all hang out" — although we had several days of pretrial conferences before the jury was picked to sort through a great many legal and procedural issues.

It took about six hours for the jury to reach its unanimous verdict (although 10/2 would have sufficed) for the defendant.

Talking to the jurors afterwards, I concluded that probably four or five of them had understood essentially every word of testimony they had heard. Another third of the panel followed all the main points, but probably zoned out on some of the technicalities. The last third of the panel understood the main issues at least well enough to have recognized the main themes and the "gotchas" of cross-examination; their intuitive evaluation of both the expert and lay witnesses' credibility was spot on.

An appeal was of course possible, and one might have thought it inevitable simply given the stakes. To their credit, however, the plaintiffs' counsel, after themselves polling the jury, quickly concluded that although they had taken their best shot, they'd lost fair and square and were unlikely to do any better in a retrial. Within forty-eight hours, they abandoned their appellate rights in exchange for a waiver of the defendant's right to recover a comparatively trivial amount of money (a few tens of thousands of dollars) in "court costs" (mostly deposition transcript fees). And thus ended the case.

The system worked exactly as it was designed to work.

That's just one anecdotal example, of course, and I am certainly aware of other complex cases in which juries have gone far astray. Almost always, skilled and impartial observers can trace the seeds of the problem to faults in lawyering, or more rarely, judging.

As someone who's tried jury cases over the last twenty-three years with amounts in controversy ranging between $200 and $200 million, I am still a believer in the system.

Super thanks!

I'm watching the Super Bowl while blogging.  I don't much care who wins. 

But I'm very proud of my adopted hometown of the last 23 years.  I think we "done good" in putting this thing on.  (I say "we"; my sum total contribution was in politely chatting with a small handful of visitors I've run into in gas stations or drug stores, but I did make sure to "put my smile on" and welcome them, per Mayor Bill's instructions.)  I'm thankful to everyone who has worked to make the event a success —

• I'm thankful to those who put on the pregame tribute to the heroes of the Space Shuttle Columbia.

• I'm thankful to Houston native Beyonce for not overdoing the artistic styling of the Star Spangled Banner, and to everyone in the stadium who cooperated in the patriotic flash-card display.

• I'm thankful to all my fellow Houstonians who've shown hospitality, and especially to the hundreds or maybe thousands of volunteers whose work has made this shindig possible even though they didn't get complementary game tickets and maybe even are missing seeing the game on TV.

But most of all, I'm thankful to everyone — from Houston to Kabul and Baghdad — who've literally put their lives on the line to make sure that some crazy bastards who hate America and hate freedom haven't been able to crash an airliner into Reliant Stadium, or sneak a fragmentation bomb onto one of our new lightrail trains, or otherwise deliver some tragedy into the midst of the festivities.

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Update (Sun Feb 1 @ 9:30pm):  And hey, it turned into a heckuva good football game too!  Grats to the Pats; and grats to all those who took Carolina and the points.

School uniforms

It's odd, what one finds oneself blogging about.   I had no intention of writing today about school uniforms.  But Will Baude at Crescat Sententia has a pair of posts up about school uniforms, in the later of which he says:

The argument for school uniforms rests on two logical steps, both of which I think are incorrect. The first step is believing that more discipline, uniformity, order, or whatnot are a good thing in our public schools. The second step is believing that school uniforms will supply that.

Will, a good libertarian (whom, despite his protests to the contrary, I quite often agree with — I just don't post my "ditto, Will!" observations), argues persuasively that neither reason justifies school uniforms.  And Will's co-blogger Amanda Butler has also weighed in on the issue, arguing that uniforms are not crucial to "producing 'intelligent, well mannered, critically thinking citizens.'"  The contrary view is argued eloquently by Steve at Southern Appeal in his own pair of posts. 

I'm not sure about discipline; I leave that debate to Will, Amanda, and Steve.  But as the father of an about-to-be 13-year-old daughter who attends a public middle school that requires school uniforms, I'm in favor of them for an altogether different reason than discipline per se. 

Without uniforms, teens and pre-teens — especially, but not only, the girls — obsess about fashion.  And on a net basis, it's just not a productive obsession.  For all but the coolest richest cutting-edge kids, in fact, it's a source not only of distraction from schoolwork and extracurricular activities, but also of jealousy, embarrassment, insecurity, resentment, and yes, tears. 

The degree to which young teens and pre-teens fall prey to this obsession may seem wildly disproportionate to a well-balanced adult, but that's the point — we're not dealing with well-balanced adults. 

Growing up — dealing with all the other hurdles of adolescence, including fashion outside of school — is hard enough.  Deciding whether her chosen outfit for the day is going to ruin her popularity, fortunately, is something neither my daughter nor any other young teen at her school has to deal with. 

Will argues that "fashion and politics are two things that add to students' education rather than subtracting from them."  But there are plenty enough other decisions that confront her every day for me to be quite comfortable that she and her fellow students are in no danger of becoming "happy little calculus drones" despite their school uniforms.

Stereotypes aside, boys also can feel fashion pressures.  I've got two sons as well, by the way — the older of which is at a public high school that doesn't require uniforms.  He's fortunately somewhat better able to deal with making fashion decisions as a tenth grader than my daughter is as a seventh grader. 

And especially for boys, but also for girls, demure school uniforms frankly dampen (although they certainly can't, and shouldn't, stop) the degree of distraction that comes with the opposite sex transforming from "yucky" to "dreamy." 

I admit to being overprotective of my daughters, like most daddies.  Watching a daughter become a woman is a complicated subject for us dads.  I've blogged about that subject; interestingly enough, and also frighteningly to me, that post included a G-rated but fairly sexy .jpg reproduction of the recent Rolling Stone cover featuring the Olsen Twins that Google's image search function has mysteriously promoted to about page 4 in its search listings for them, and that image is now driving about 500 additional hits a day to my site from all over the world.

For my two youngest kids who are still in elementary school, uniforms aren't a big deal either way.  But as someone who was scared to death by the promos for the movie "Thirteen," I'm frankly glad my daughter's middle school requires uniforms.  Surely even a libertarian can grant some grace to a dad who doesn't want to see his daughters (or his sons) pressed into premature sexuality by fashion-driven peer pressure!

 

Drug money

I'm listening to Howard Dean on "Meet the Press" rail against the just-passed prescription drug benefits legislation on grounds that it will give money to drug and insurance companies instead of to seniors.

How exactly are you supposed to have legislation paying for prescription drugs that doesn't channel money to drug and insurance companies?

What does Dean want?  Should we pick seniors who need help paying for prescription drugs and insurance, and give them money — but then forbid them to spend it on prescription drugs and insurance?

What am I missing here?  How can this be understood as anything other than populist demagoguery directed to the extremely stupid?

Comments are open, just in case some browsing Dean supporter can enlighten me.