The Laboratorium
April 2003

ALife That Does Not Yet Exist


Writing is attempting to find a life that does not yet exist.

-- Richard Powers

Secular Prayer


Reading is the last act of secular prayer.

-- Richard Powers

Black-and-Bluebook


The formatting of legal citations is controlled by the arcane rules laid forth in The Bluebook: A Uniform System of Citation. Bashing The Bluebook is a common pastime among law students; its 300-odd pages of rules can be almost comically technical. A few examples:

  • Roman commas and italicized commas are distinct creatures and must never be used in place of each other.
  • Documents available exclusively on the Internet are introduced using the phrase "at." Traditional documents available both offline and on the Internet are introduced using the phrase "available at." Traditional documents available offline but accessed by the author only through the Internet do not take an introductory phrase.
  • Woe betide the poor law student who fails to note that citations to Fifth Circuit cases from 1981 require the month in addition to the year.

I've heard many colleagues, in the face of such seeming madness, say that The Bluebook makes no sense. My personal opinion is a bit different. I think it makes reasonable sense, once you recognize that it's terribly organized. The Bluebook is a textbook example of what happens when you forget to write design documents early on. There are reasonably clear overall principles animating its rules; they've just been obscured by the accumulated cruft of generations of incremental patches.

The Bluebook is, without realizing it, a Chomskyian transformational grammar. At its core, there is a single perfect abstract Platonic citation syntactical form which becomes increasingly specialized as you adapt it to the particular document to which you wish to refer. Thus, given a document, you first write a skeletal citation, and then apply a single deterministic set of transformations to produce a final cite, just as a Chomskyian syntactician would write a deep-structure sentence and then apply a deterministic set of transformations to produce a surface structure sentence.

Now, the problem with Chomskyian deep-structure syntax is that its algorithm is fundamentally irreversible. Given a sentence, Chomskyian ideas of deep structure give you no useful way to parse it. Similarly, if you look at a Bluebook citation, it's not always obvious how it wound up in its final tortured form. There are multiple rules that introduce an "at" before a page number; these rules are all subject to certain exceptions. So if you're looking at a page number and wondering whether that "at" before it belongs there, you can draw almost no useful information from the cite itself. You need to reason backwards, to what the cite would look like without the "at," and then see whether one of these rules (but not the exceptions) would apply.

As best I can tell, this is how The Bluebook used to operate. But somewhere along the way, generations of law students with codifying inclinations forgot about the original rules. Instead, they looked at the places where an "at" might appear and tried to come up with a declarative set of rules for explaining their presence or absence. Since these new rules aren't sensitive to the step-by-step nature of my hypothetical ur-Bluebooking, they're more complicated, messier, and harder to apply than the original version. Instead, they read as a long list of specific recipes to apply in very specific situations. This is the kind of dumb thing you do when you don't have the original design documents to keep you on track.

Worse, when it came time to handle new citaiton forms, successive Bluebook editors have added these new forms by analogical reasoning. Instead of asking why The Bluebook makes a particular choice, they ask when it's mades a particular choice in the past. So rather than respecting the transformational principles at work, they've turned particular quirks of the surface structure into "new" governing principles by propagating them forward.

Which is to say that The Bluebook isn't even a Chomskyian mess. It's a parody of a Chomskyian mess. But it does make sense, in the more specific sense of being explicable. First one finds the general rule. Then one finds the accumulated cruft. As long as one doesn't attribute the details to the general rule, or look for general rules in the details, it's actually sort of reasonable.

Too bad The Bluebook itself doesn't distinguish general rules from specific details.

Nevada’s Revenge


Thirty-five years ago, an employee of the University of Nevada drove into California on official business. While there, he crashed into another car, severly injuring its occupants, who were California residents. They sued Nevada.

Now, under the principle of "sovereign immunity," which says that states can't be sued without their consent, Nevada courts would have capped damages at $25,000. But the plaintiffs didn't sue in Nevada; they sued in California. California looked at the situation, decided that its rule of not capping damages made more sense, and ignored Nevada's $25,000 limit.

The Supreme Court took the case and voted 6-3 to let California get away with it.

Apparently, Nevada has been biding its time and looking for a chance to get even. And in 1998, it got its chance. California had audited a Nevada resident for underpayment of taxes from the time he'd lived in California. After an apparently unpleasant audit process, he filed suit against California for various torts, including fraud and invasion of privacy.

Now, under its version of sovereign immunity, California shields its tax agency from being sued for doing its job. But the plaintiff didn't sue in California; he sued in Nevada. And I bet you can see where this one is going.

The Supreme Court took the case and voted 9-0 to let Nevada get away with it.

(Interesting sidenote: of the three dissenters in the first case, only Justice Rehnquist is still on the Court. At the time, he thought that letting the California suit proceed "work[ed] a fundamental readjustment of interstate relationships." But he joined the majority in the second case, even though it relied principally on the holding in the first one. Put that in your stare decisis and smoke it.)

We All Scream


Twice today I was promised ice cream; twice today I arrived to find the ice cream gone.

Call it customer service. Call it tact. Call it truth in advertising. Call it empathy. By whatever name, it matters. If you promise ice cream, and ice cream you have not, you owe apologies, or at the very least, some expression more contrite than a mistakes-were-made shrug.

Damn lawyers. I want ice cream. Failing that, I want some sympathy from those who were to supply it. I don't want to be told I should have come at 6, when the signs all said there would be ice cream until 9. I don't want to joke about contract doctrine. I just want some acknowledgement of my basic dignity as an ice-cream loving individual.

What sticks in my craw is that the whole point of the one ice cream social was to show that the hosts actually cared about us guests; it was supposed to be a friendly expression of support and gratitude. Mocking your guests for not showing up earlier is not cool in my book.

2 Corinthians 9:6, I say to you, especially if I have any say in the matter.

Update (23 April): apology accepted.

Social Engineering Through Civil Procedure


Is it possible that the "divorce revolution" was nothing more than an accident of American civil procedure? Probably not, but consider the following . . .

Historically, marriages were religious ceremonies to which states agreed to attach certain legal consequences. [As a matter of theology and canon law, whether or not two people were married was strictly between them and God. But since the government couldn't just go and ask God directly whether the marriage was valid (i.e., were both husband and wife freely consenting and free to marry), it had to depend on the appropriate ceremonies.] If a priest sanctified the union and the right formalities were followed, the marriage would be considered valid for all legal purposes.

Now, over the centuries, the class of people legally allowed to conduct marriages has grown. Rabbis, judges, and so on. Meanwhile, the legal preconditions of marriage, as embodied in the notion of a "marriage license," have similarly grown. But the basic idea, that legal recognition of the marriage is a purely administrative matter, not one that should take up the time of a court of law, has stuck.

Divorce, on the other hand, is a creation of the law. And as a matter of historical accident, the power to grant divorces has been lodged in the courts. Divorces (typically) reach the judge in the form of a lawsuit by one spouse against the other; the judge then issues a judgment (that's what judges do, after all) granting the divorce.

That is, divorces in this country, but not marriages are "reduced to judgment." The divorce is embodied in a more official piece of paper than any recognizing the marriage it terminates. This distinction may not seem like much, but it has Constitutional ramifications.

You see, the Constitution provides, as the first sentence of Article IV, that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The basic idea behind the Full Faith and Credit Clause is that if I sue you and win in New York and you go hide out on your Wyoming ranch, I can require a Wyoming court to enforce my judgment against you.

Now, here's the subtle part. As a matter of Constitutional interpretation and judicial doctrine, "full faith and credit" comes in at least two flavors. Judgments -- official rulings by a court with a signature and a seal -- get near-absolute faith-n-credit. There's no arguing with what a judgment says. But laws, administrative procedings, and other non-judgment procedings get something rather less than "full" faith-n-credit. As a purely pragmatic matter, allowing every state's laws to be enforced absolutely in every other state would completely destroy every last shred of state independence, becuase doing so would force each state to have the same exact laws as every other state.

What's important for present purposes is that there is a line, and that the Supreme Court has chosen to draw that line around judgments. And since divorces are judgments while marriages aren't, this means that divorces get, as a Constitutional matter, more faith-n-credit in travelling from one state to another than do marriages.

Perhaps you can see where this is going. Nevada has a history of granting both quickie marriages and quickie divorces. But while Iowa courts might be able to resist a Nevada marriage on public policy grounds; they won't be allowed to resist a Nevada divorce. Once Nevada really got going, other states had at least the option of maintaining their own, more stringent, marriage laws -- but Nevada divorce law, became de facto national divorce law.

What makes this result really incongruous is that divorces often don't fit comfortably inside the "judgment" paradigm. The idea that judgments get the fullest possible faith-n-credit comes, in large part, from the theory that judgments are the result of a spirited adversary proceeding between the two parties who care about the outcome of the lawsuit. Husband and wife go to court, have at it, and the court finds a good compromise and enters a judgment on it.

For a great many divorces, this picture is completely fictional, because the "lawsuits" involved are collusive. Husband and wife want a divorce and work out the terms and go before a judge and have their agreement recorded in a judgment. Which would be fine, except that the two of them aren't the only parties to the marriage. It seems at least plausible that the state cares about the fate of the marriage. They needed its approval to get married; they agreed to various conditions in order to win that approval.

Now, Nevada may say that it's fine with the divorce. But when the couple getting divorced are married in Iowa, live there for a decade, and return there after getting their divorce, one wonders why Iowa doesn't get a say in the matter. Especially if Iowa has a policy of making both marriages and divorces difficult to obtain, as a way of encouraging well-thought-out and lasting marriages, Nevada seems like an awful spoilsport.

Now, ideologically, I'm much closer to Nevada's position than this hypothetical Iowan one. But it still strikes me as a bit unfortunate that we've wound up with this particular ratchet, and that it operates only for divorces and not for marriages, because it creates a hydraulic pro-divorce pressure. One might see the profusion of divorce liberalization as a response to this pressure: once Nevada broke ranks, everyone else had no practical choice but to follow.

Put it this way: in the eyes of American law, a couple about to get married cannot now choose to be married in a way that will make it legally difficult for them to later split. I wouldn't want to force everyone to choose marriages that will be difficult to unwind, but if people at least had the option, I think they'd sometimes use it wisely.

As it happens, the place where the marriage-divorce asymmetry has been most significant has been for same-sex marriages. Remember the Defense of Marriage Act (DOMA), which said that states could refuse to recognize same-sex marriages? The consensus among conflict-of-laws scholars is that DOMA was legally irrelevant, because marriages aren't judgments and states could refuse to recognize them, the same way states have been free to refuse to recognize marriages between first cousins.

Ah, symbolic politics.

Arbitrariness is the Whole Secret


Arbitrariness is the whole secret. It is popularly believed that there is no art to being arbitrary, and yet it takes profound study to be arbitrary in such a way that a person does not himself run wild in it but himself has pleasure from it. One does not enjoy the immediate object but something else that one arbitrarily introduces. One sees the middle of a play; one reads the third section of a book. One thereby has enjoyment quite different from what the author so kindly intended. One enjoys something totally accidental; one considers the whole of existence from this standpoint; one lets its reality run aground on this.

-- Soren Kierkegaard

Everybody Everywhere Loves James


The Nields have a song entitled "James":

I saw James at the end of the day
Hanging his head while he was laughing
He said, "I am the master of giving it all away
And now there's nothing to keep me from crashing
Nothing left for me to take home
Nothing left for me of my own
And all I've ever wanted was to be alone"


James, James, James
Isn't it a shame
That someone so crazy could go so insane
Everybody everywhere loves James

I hope it's not about me.

Our Fault, as Usual


It now appears that the first wave of looting at the National Museum of Iraq may have been carried out by professionals, who obtained keys to locked vaults and carefully sliced through class cases to remove artifacts undamaged. Many of those artifacts are now believed to be in the hands of black market art smugglers.

But that means the looting was driven by the same exact passions that are now driving the outrage over the looting. These antiquities were stolen because there are collectors who will pay good money for beautiful and ancient objects. But those collectors are just following the same love of our species's collective heritage that led to the creation of the National Museum.

Depressing, isn't it?

In Every Generation


This is the bread of affliction that our fathers ate in the land of Egypt. Whoever is hungry, let him come and eat; whoever is in need, let him come and conduct the Seder of Passover. This year we are here; next year in the land of Israel. This year we are slaves; next year we will be free.

At least in Iraq, Passover came early this year. It's hard to go through a seder without being struck at how timely its message of release from bondage is. Oppression will come to an end: slaves will be redeemed, tyrants and their armies swallowed under the sea.

I mostly got chuckles for mentioning this at the seder last night, but I do think the connection is worth noting. Last year, I mostly got chuckles for complaining about the political overtones wrapped up in "Next year in Jerusalem!" but I thought that one was worth mentioning, too. The haggadah is remarkable that way: every year, something remarkably current jumps out of it.

Of course, after the Exodus come forty years of wandering in the desert . . .

That’s a New One


"May I speak to the Republican of the house?"

I swear, these telemarking calls are getting stranger and stranger. I was almost convinced that it was a machine on the other end of the line; there was something a little suspicious with how long the voice waited before saying "I understand; thank you."

Even more strangely, other people have had similar experiences, right down to the odd silences.

Yeah, That’s the Ticket


Ahmed ChalabiJon Lovitz

Left: Ahmed Chalabi; Right: Jon Lovitz

By Popular Acclaim


I have another conference report over at LawMeme, this one on the "Democracy in the Digital Age" event from last weekend. Yay.

Freedom’s Just Another Word for Nothing Left To Loot


In the words of Iraqi archaeologist Raid Abdul Ridhar Muhammad, as quoted by the New York Times:

I asked them to bring their tank inside the museum grounds. But they refused and left. About half an hour later, the looters were back, and they threatened to kill me, or to tell the Americans that I am a spy for Saddam Hussein's intelligence, so that the Americans would kill me. So I was frightened, and I went home.

There you have the problem of post-invasion Iraq in a nutshell. As I see it, the guys with the tank had four basic strategies available, all of them sucky:

  • Listen to the archaeologist. But a lot of times, the "archaeologist" asking for protection may very well be a spy for Saddam Hussein's intelligence.
  • Listen to the mob. But a lot of times, the "spy for Saddam Hussein's intelligence" may very well be an archaeologist.
  • Listen to no one, bring over the tank, and make everyone go home. But then you're part of an occupying army of occupation, not one of liberation, or at least risk coming across as one.
  • Listen to no one and do nothing, on the theory that the Iraqis can and should sort things out. But then the hospitals and museums get trashed.

These four options live at the corners of a rather neat diamond. One axis, let us say the horizontal one, is deference towards the mob (stereotypically "left") as opposed to deference towards the official (stereotypically "right"). The other axis, which we call the vertical one, ranges from a high of maximal military involvement to a low of a complete hands-off attitude.

There are two points to be made here. First, none of these strategies is an appropriate blanket response. The best that can be done is a thoughtful case-by-case balancing act somewhere in the middle of the diamond. But notice that there's a strong counter-clockwise rhetorical tendency at work here. Saddam had an iron grip on Iraq (right), which the U.S. took care of by invading (top); Iraqis took to the streets (left) and started looting everything in sight (bottom). Whoops. Wouldn't it be nice to have some local authorities (right)?

If you want to see the cycle in action, just read the press briefings. Both Rumsfeld and the reporters are working at a high level of guile; they chase each other around the diamond at dizzying speed. Today, the widespread looting opens Rummy up to criticism that he's too far down in the diamond, too far towards letting the Iraqis sort everything out through a programme of retributionary (or perhaps redistributive) looting.

The reporters, though, can't call him on it directly, because, the opposite of down is up, and up means using the tank more, which would smack of colonialism. So instead, they're trying to suggest that U.S. policy should be further to the right: more control by local Iraqi archaeologists. But, of course, Rummy has a perfectly good reply: those aren't archaeologists, they're agents of the former Iraqi intelligence apparatus! Witness:

Q: I think the question is, if you -- if a foreign military force came into your neighborhood and did away with the police, and left you at the mercy of criminals, how long would you feel liberated?

Rumsfeld: Well, that's a fair question. First of all, the foreign military force came into their neighborhood and did not do away with any police. There may have been some police who fled, because the people didn't like them, and because they'd been doing things to the people in the local community that the people wanted to have a word with them about. But we haven't gone in and done away with any police. In fact, we're looking for police in those villages and towns who can, in fact, assist in providing order, to the extent there are people who can do it in a manner that's consistent with our values.

Notice that twist at the end? Since the reporter is arguing for right, Rumsfeld plays rock to the reporter's scissors and starts sliding towards up. The "police" will "assist in providing order . . . consistent with our values." I think we can all see where this one will wind up a briefing or two down the road, not least because U.S. policy already seems to be tipping upwards towards greater involvement. When platoon-leaders-turned-mayors (after a two-minute briefing) overstep and start shooting innocent civilians, we'll hear about abuses of power, and the reporters will be asking Rumsfeld why we're not over in the left part of the diamond, trusting ordinary Iraqis more. We've already been there with the checkpoint shootings, which we got into because of the suicide bombers; nor will this next time be the last. Around and around the spin cycle goes; where it stops, nobody knows.

It's certainly possible to second-guess individual decisions made by the U.S. forces in Baghdad. But the press briefings are just one flanking movement after another. These movements are rhetorical tropes, formalistic responses to the previous day's spin. I don't know whether it would be possible to do much better than the U.S. troops are already doing without mucking things up worse. Trusting local "authorities" too much could be disastrous, if Iraqis come to identify the U.S. troops as the protectors of the Ba'ath. The National Museum may have been a necessary sacrifice. We'll never know now, though.

The deeper point here is that the difficult tradeoffs involved in playing the diamond of disorder are quite predictable. Something very similar happened during the 1989 invasion of Panama; thousands of Panamanians died in the disorder that followed the sudden removal of their government.

Such violence is not, as Rumsfeld would have it, the necessary consequence of the transition from repression to freedom. Most of Eastern Europe managed that transition just fine. Nor, as the 1863 Draft Riots and 1992 Los Angeles Riots illustrate, do you only see looting during revolutions. I doubt the Secretary would say of the latter, as he did of the chaos in Iraq, "[F]reedom's untidy, and free people are free to make mistakes and commit crimes and do bad things."

Now, to be fair, something on this order might very well have happened in the absence of an invasion, on Saddam's death. But we'll never know now; and we do know that it did happen as a more or less natural consequence of the invasion we wound up with. Not that I really believe anyone would have thought differently about an invasion with this prospect in view, but still, folks, come on, would it have been so hard to admit up front that Iraqis might well be pulling down Saddam statutes and trashing their hospitals? This happens when you delete the government.

Once again, I feel very small and helpless.

A Refinement


I was waiting for some alert reader to raise the first immediate objection to my proposal from yesterday. But since no one has written in, I'll have to raise it myself:

Too much direct aid may not be practically useful. How much can be spent before it turns into spending for spending's sake, or gets siphoned off by corruption?

I don't know. It's an important question and a recurring problem for development projects. Which is why I'd like to offer up another suggestion, both as a way of mitigating some of the firehose effect and as a productive gesture in its own right.

Now would also be an excellent time for a new volunteer program. What if every Marine who leaves Iraq were replaced by a Peace Corps volunteer?

A Second Step


The first step may have been ill-considered and is by no means over, but it does seem to be going about as well as might reasonably be hoped.

I'd humbly suggest that now would be a good time to be putting together a foreign aid package, and to be doing so publicly and transparently. A twenty billion dollar commitment up front would be a good start. Ultimately, it would make sense to spend as much on the peace as on the war, if not more.

The Private Fisc


Taxes mostly done. They were mercifully easy this year, and I should be getting a nice chunk of change back.

True, both of these pleasures are but the silver lining of no longer having income, but still.

If I Were a Machine


But if _I_ should find out I were a machine, my attitude would be totally different. I would say "How amazing! I never before realized that machines could be so marvelous!"

-- Raymond Smullyan

Peace, Man


I've been wearing around a small silkscreened peace sign patch on my lapel. You would not believe the number of people who ask me, "That peace sign. What's it for?"