The Laboratorium
February 2003

Too Many Numbers


The tracking number on the payment stub for my electric bill is 42 digits long, narrowly beating out my auto insurance, which uses a 41-digit tracking number. By way of reference, it would take about 25 digits to number individually every drop of water on Earth.

I thought this was impressive, until I checked my phone bill. They use an astonishing 55 digits, which is enough to number individually every water molecule on Earth. Put another way, if every star in the universe has nine Earth-like planets around it, and each of these planets has an Earth-scale population, and every inhabitant of each of these planets has a telephone, and each of thse phone owners gets a phone bill once a month for the entire lifetime of the universe, you'd still have ten digits to go around.

Talk about universal service.

Freshwater Fish, Saltwater Pond


The conference this weekend included a party at a local club. This being a radical-slash-progressive law student conference, the party was filled with radical-slash-progressive law students. Thus: lots of t-shirts, a fair number of piercings, a very wide range of body types, the occasional pair of big pants, and self-presentations ranging between business casual and seriously crunchy.

So I'm standing there on the fringes, enjoying my exhaustion-fueled sense of disoriented contentment, when I see a pair of "normal" clubgoers arrive. They're paradigmatic clubbers, verging on stereotypical: expensive dresses, strappy shoes, made up to the hilt. Apparently no one told them the back room was reserved for a larval lawyer shinding.

I have never seen anything quite so beautiful, in its way, as the expression on their faces. It looks like a club. The music is right, the noise and the lights are right. But the people are all wrong. It's as though they've stepped across into Bizarro world. After about thirty seconds, they turn and flee as fast as their strappy little shoes will carry them.

On a Roll


I've been hitting a pretty substantial string of good fortune lately. The last week has been just one good thing after another. Two of the many are of particular public interest.

First, there are two (relatively) new Red Clay Ramblers albums, both of which I now have on order.

And second, there's the trip to San Francisco. I'll be attending the Digital Rights Management conference at Berkeley. It's my first chance to meet a full third of my 'hero worship' section, along with some other top figures in IP (and anti-IP) law. I'll also be covering the event for LawMeme ("blogging" it, as we say in the trade).

I'm pretty durn happy.

From the Mailbox to the Trash


I got a flyer from the AARP, complete with temporary membership. The last time I checked, you needed to be twice as old as I to be a member, but I guess in these tough economic times, they're expanding beyond their core constituency. In today's AARP, even young people can lobby for special treatment for old people!

After all, they dropped the "retired" part of their mission years ago, along with "American," "association." and "persons." I'm not quite sure when they KFC-ized themselves, but AARP no longer appears to be an acronym for anything, nor do you need to be retired, or even American, to be a member.

I'm reminded of the story behind the name of King County in Washington State. In 1852, the Oregon territorial legislature established two counties in modern-day Washington; in a blatant suck-up, they named these counties Pierce and King, after Franklin Pierce and William Rufus de Vane King, the President- and Vice President-elect.

King turned out to be a bum horse to place your bets on; he died the day after the inauguration. Thus, in 1986, when the county government decided to rename the county after Martin Luther King Jr., they didn't need to change the letterhead.

Things I Can’t Say, Cntd.


"Irreplicable." The on-again off-again "l" is a natural tongue-twister component; the "pl" and "bl" sounds I have particular trouble with. The result is a perfectly ordinary word that I cannot get out properly.

No, wait, I seem to be saying it just fine now. I must have been more tired than I realized last night. First, to have been having such difficulty; second, to have not realized that maybe my inability was simply a symptom of exhaustion; and third, to have obsessed over it for a good fifteen minutes.

Burrito Roulette


Ducked out to the cart on the corner to pick up a burrito between classes. I asked for a beef burrito with no sour cream. The guy behind me asked for a chicken burrito with no slaw.

Well, it was a busy day, and mistakes were made. I hold in my hands what is either a chicken burrito with everything or a beef burrito with no slaw and no sour cream. Time to find out which.

Accidental Privacy Spills


My LawMeme rants just keep getting longer and longer.

This one clocks in at 7800 words. I didn't mean to run on that long. Honest I didn't. It was going to be a nice concise 1000-word summary with a couple of pointed policy questions. Or so I thought when I started out.

That was . . . a while ago. I feel as though I've been on a squishee bender. My sense of time is all gaflooey.

Anyway, it's about privacy and democracy and other good stuff. A journalist's "private" email to some friends wound up on the Web and, long story short, she vowed to go back to longhand. Around this slender thread, I weave a tapes--

--enough with the metaphors! I look at this story as a privacy accident, one of a particularly difficult sort to prevent. There are disquieting overtones for democracy, too: at least in this case, public discourse managed to strangle itself. I talk about possible social and technological responses and find them wanting, before turning to some deeper points about the effects of the Internet on our conceptions of ourselves and of our society.

All this and an elephant, too!

Worst Spam Ever


Airfares change all the time, and Hotwire is always working to find you the best deals. We thought you might like to know that we recently found an even lower Hot-Fare(sm) for the none found trip you searched on Dec. 31 for flights departing on no date found and returning on no date found!

YOUR QUOTED HOT-FARE: $none found

RECENTLY QUOTED HOT-FARE:* $none found

Subsidizing Childhood


I've been reading this essay by Paul Graham on the cruel social dynamics of childhood. It's not profound, novel, or surprising, but he gets the overall portrait right: middle-school status hierarchies are self-generating, require full-time effort from those who would be popular, and single out those who cannot commit to such striving for for active persecution.

What caught my eye was the following passage; similar sentiments crop up in a couple of places.

think the important thing about the real world is not that it's populated by adults, but that it's very large, and the things you do have real effects. That's what school, prison, and ladies-who-lunch all lack. The inhabitants of all those worlds are trapped in little bubbles where nothing they do can have more than a local effect. Naturally these societies degenerate into savagery. They have no function for their form to follow.

When the things you do have real effects, it's no longer enough just to be pleasing. It starts to be important to get the right answers, and that's where nerds show to advantage. Bill Gates will of course come to mind. Though notoriously lacking in social skills, he gets the right answers, at least as measured in revenue.

Now, this was a new one on me. The traditional analysis is that the value hierarchies of schools are messed-up because they substitute fairly arbitrary, almost capricious, goals -- being on the football team, say -- for "true" goals, like academic success. The more nuanced version of this analysis points out that even where schools value the "right" things, there is so little they can do to influence students' social systems that football-worship and cliqueishness still prevail.

But Graham is saying something slightly different. He's saying that schoolkids are isolated from the consequences of their actions, particularly the economic consequences. And this is a very interesting line of argument, becuase it very quickly takes you to some very strange places indeed.

Imagination at Work


GE has been running interactive ads on the NYT site; the ads invite you to use a "marker" to scribble on a virtual whiteboard and mail your drawing to your friends.

I've been having too much fun with the possibilities.

Compromising Conditions


Ordinarily, I believe in the separation of church and state. Not today.

The two blocks between State Street and Church Street were pure snowy misery. This city has a serious plowing dysfunction. The easiest way through was to walk on top of the mounds of pack ice from the last snowstorm.

I Give Up


The Court's reasoning adds up to this: The Commission must be sustained because of its accumulated experience in solving a problem with which it had never before been confronted.

. . .

I give up. Now I realize full what Mark Twain meant when he said, "The more you explain it, the more I don't understand it."

Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 213-14. (1947) (Jackson, J., dissenting).

On Casebooks


The case method has come in for its share of criticism over the years. Much of this criticism is closely tied to the association of the casebook form with the Socratic method. The two are closely associated; Christopher Columbus Langdell developed them as a package deal, and most casebooks are designed to be taught Socratically. The non-case material is often well-nigh inscrutable: "problems" and "questions" so insanely cryptic and condensed that they demand leisurely exegesis.

But I'm also starting to realize that casebooks have -- or can have -- a certain freestanding literary merit. Sometimes, they're simply so clear and well-edited that you don't really need the professor to walk you through the question-and-predetermined-answer ritual. But in other cases, the casebook stands on its own as, dare I say it, a good read. Good casebooks have personality; they have a narrative voice. The form can be constraining, especially given that each section must be relatively freestanding, to enable professors to pick, choose, and rearrange the materials. But at the same time, it's actually a lot of fun to see a good casebook play with time and dramatic tension.

Editing for publication is a tricky business. The original theory behind the case method was that students reading through cases would learn to discern the general principles and legal rhetoric at work. I think this theory has been in decline for reasons obvious in hindsight. Generations of judges trained on leading cases have been writing opinions that are more and more exegetical. Good statements of particular topics become the standard statements, quoted hundreds of times, through the magic of cut-paste-and-cite, in other opinions. More modern casebooks -- or some of them, at least -- are much more heavily edited.

One may dispute this approach, of course. I think it's a great idea; even a single semester of law school is enough to make one a master skimmer. Further enforced practice in self-condensation of long opinions is just gratuitous cruelty to trees. Whereas short, highly-condensed, cases have something of the pithy beauty of the old English single-paragraph case reports. That is, for the same reason that even great novelists need editors, judges benefit from being edited, too. Short cases keep things moving; they keep the average quality of writing high. And, most importantly, they make the key "voice" in the casebook that of the author, rather than of the judge being quoted.

Two of my books this semester, for example, display a kind of horrified fascination at their subjects. "Oh, young law student," they say, "you are young and naive, and we are ever so sorry to be the agents of your disillusionment, but the law is not the Great Rock Candy Mountain as your teachers have led you to believe, and by the time you have done with this course, you will be older, sadder, and wiser in the ways of the black comedy that is our legal system."

My Conflict of Laws book, right now, is rather gleefully setting up the "traditional approach" to the subject, a system of complex and mechanical rules that collapsed under its own weight. Thus, we have extensive excerpts from those rules, so assertive and brash you can imagine Robert Preston reading them aloud in his best Music Man voice. But the cases themselves are all Willy Loman: judges looking around in a state of miserable confusion as the rules lead to anomalous and contradictory results, wondering where all the old certainties have gone, and when was it that everyone stopped smiling back. The notes and questions are mild in tone, but merciless in content. "This system was stupid," they seem to say, "so stupid that it's hard now to believe that people took it seriously." I swear to you that I can all but see the authors smirking.

Or, take my Admin book. One must admit that Admin is a bit of a dull subject in some ways. It is, quite seriously, a course about bureaucracy. If there is entertainment to be found here, it will not be the strange facts and operatic tragedies of torts or the clash of the great principles of constitutional law. No, the humor of bureaucracy is a dry wit, a kind of expasperated amusement at the glacial pace and the pettiness that all obscure the real work going on. The Memorandum comes to mind. And my Admin book plays this role to the hilt.

They use some of my favorite literary tricks. There is the use of a private language, the reptition of key phrases for rhetoric (and comic) effect. "The effect of thermal shock on soft-shell crabs" pops up again and again. There are the wry chapter heads: "The Tip of the Iceberg" is my favorite. There is the crushing of overly-optimistic illusions: "The Second Circuit thought it had found [such a case]" is followed by the Second Circuit's opinion, which is followed immediately by the Supreme Court's reversal.

I suppose my descriptions aren't really doing these casebooks justice. It may be that you need to read a few bad casebooks before you appreciate the good ones. I've certainly had to deal with some deathly boring ones. The contrast is striking.

Two Ways of Looking at a Sex Act


First up, "sex act" is a great tongue-twister. So is "tugboat goat," though it's more contrived.

Second, the use of "act" is a little striking, when you think about it. "Act" has overtones of "acting," of theatricality, performativity, and other fun ivities. So this is sort of an interesting linguistic convergence, certainly one as least as meaningful as decompising "history" into "his story." If something is ritualized enough to be a "sex act," the implication is that it's aquired a certain veneer of superficiality. That sounds about right.

Unfortunately, as much as I'd like to read the musings of gender and cultural theorists on this idea, I believe that this is a concept for which no good search exists. I can't boil it down to Google keywords, a Lexis terms-and-connectors search, or a JSTOR term-based search.

The problem here is that the key element in the search is a semantic relationship between the search terms, not a syntactical one. I don't want papers that mention "sex acts" and "acting." I don't want papers that mention "sex acts" and "acting" in close juxtaposition. I don't even want papers about the "acting" of "sex acts." I want papers about "acting" in the context of the phrase "sex acts." But those documents are blocked from view by the far more common documents that use the same meanings of the same words in a different way.

That's the nasty part. A clustering search engine might well be able to separate news stories about sex workers from academic papers about them. But there's nothing globally distinctive about the academic papers I'm looking for. They just have a distinctive local idea; one that's sufficiently uncommon (if it's in the literature at all) that hand-review of a results list is infeasible.

Now, there are domains that are effectively unsearchable. Languages, like Thai, whose written forms don't indicate word breaks, can be difficult for automated tools to analyze. Pictures and music are difficult even to index. But smart people are working very hard on these problems, with results that are, at the least, encouraging. Semantic screening, though, might well be AI-complete. I'm just having a hard time imagining a search engine capable of making these distinctions without understanging the documents well enough to start playing the Turing game on them.

One for the Quote Wall


"People think of my name and they think I�m fast, cheap, and satisfactory."

Context: we're talking about trademarks. In particular, we're talking about what happens when a trademark loses its connection with particular products. The case at hand involves a suit by McDonald's against a pair of dentists who call themselves McDental; the question is whether the "Mc" prefix has acquired a more generic meaning.

Daily Googlewhack


The problem with googlewhacks is that once you find one, writing about it destroys the whack. Ah, the transience of glory.

Anyway, I came up with EverQuest bigamy today. I know that EverQuest, as a proper noun, fails to qualify as a Hoylian whack. But 633,000 hits is not to be sneezed at, and more to the point, it's not an artificial whack. I ran an honest search and got back exactly one result. Just another small miracle of everyday life.

Talk About Budget Cuts


Monday's Times had a story about the effects of a war on media companies' bottom lines, including the following paragraph:

Letting reporters close to the front also increases the already significant costs of covering a war, including the cost of buying bulletproof vests and other protective gear. But a protracted conflict may stretch the budgets that network executives say they have set aside for that purpose.

I guess after they pay the anchor's salary, there's just not all that much left over.

Too Tired


So I got on the shuttle bus to head back home this evening. It was only when we were a few blocks into the route that I remembered I'd driven to school.

I feel especially lucky that I remembered this fact when I did, and not twenty minutes later.

Get Mad. Now.


So the judge denied a permit for the anti-war march this coming Saturday. Oh, joy.

But that's not all. It emerged during oral arguments that New York City is now denying all permits for protest marches. All. That's right. All. Thanks to the blanket excuse of unspecified "heightened security concerns," the right of the people peaceably to assemble is inapplicable in New York.

Mayor Bloomberg's fax number is (212) 788-2460. His phone number is 212-788-9600. You can send him email from this page. Police Commissioner Kelly's phone number is 646-610-8526.

Tell them what you think, before they take away that option, too.

Hello?


I wouldn't ordinarily have posted these next two items, on the grounds that I don't like to duplicate content easily available elsewhere. But my belief that these stories would be all over the place has, thus far, turned out to be false. Something is seriously wrong here.

First, 15 February has been set as the date of the "big" protest against the war. It's being organized by United for Peace, a group that ought to be more or less immune to charges of extremism. Huge crowds are expected.

New York City sees matters differently, though: it's denied the march a permit. United for Peace has gone to court to seek a permit for a march, instead of the "stationary event" the city is offering.

Hello? We're on the brink of war as things stand already; 15 February is likely be the largest and most forceful public event against those plans. This is a key moment for public consensus, for democratic decision-making. So where's the outrage? Hello?

Second, Representative Howard Coble (R-N.C.) stated Wednesday that he thought the WWII internment of Japanese-Americans was appropriate, for their own safety. For their own safety. For their own safety.

Hello? The internment was among the most shameful American acts of the century; Korematsu the most shameful Supreme Court decision. But even that craven and hypocritical Court wasn't so cravenly hypocritical as to pretend that the internment was for the safety of the issei and the nisei. The internment was worse than segregation; Coble's statements are worse than Trent Lott's. So where's the outrage? Hello?

Two Strange Facts


Quash.com would be a great domain name. Too bad it's taken. The domain name is owned by Morgan, Lewis, and Bockius, a behemoth of a law firm based in Philadelphia. They have their own web page; I don't see why they need Quash.com too. Especially since they're not using it.

More interestingly, try plugging "Morgan Lewis" into Google. As of the time of this writing, the number one hit you get back is for Major League Baseball. Now, these two organizations share the same acronym, but other than that, I can't imagine them being linked from similar places. Indeed, I can't imagine anyone using "Morgan Lewis" near links to the baseball monopoly, nor does "Morgan" or "Lewis" appear anywhere on the baseball main page.

There's something screwy going on under the hood at Google here, mark my words.

Say What?


So there I am, getting a haircut, minding my own business, when the tonsorial artist asks me, "Do you know the life expectancy of a snake?"

Earthbound


If a reasonable launch schedule is to be maintained, engineering often cannot be done fast enough to keep up with the expectations of originally conservative certification criteria designed to guarantee a very safe vehicle. In these situations, subtly, and often with apparently logical arguments, the criteria are altered so that flights may still be certified in time. They therefore fly in a relatively unsafe condition, with a chance of failure of the order of a percent (it is difficult to be more accurate).

Official management, on the other hand, claims to believe the probability of failure is a thousand times less. One reason for this may be an attempt to assure the government of NASA perfection and success in order to ensure the supply of funds. The other may be that they sincerely believed it to be true, demonstrating an almost incredible lack of communication between themselves and their working engineers.

In any event this has had very unfortunate consequences, the most serious of which is to encourage ordinary citizens to fly in such a dangerous machine, as if it had attained the safety of an ordinary airliner. The astronauts, like test pilots, should know their risks, and we honor them for their courage. Who can doubt that McAuliffe was equally a person of great courage, who was closer to an awareness of the true risk than NASA management would have us believe?

Richard Feynman, Report of the Presidential Commission on the Space Shuttle Challenger Accident, Appendix F, June 6, 1986.