Monthly Archives: December 2008

… Not a Suicide Pact

Posted by on 12/31/2008 No comments

I just fin­ished Judge Richard Posner’s …Not a Sui­cide Pact. It is an intrigu­ing and thought-provoking read — how­ever, I’m left with a par­tic­u­larly par­ti­san taste in my mouth.
I quite enjoyed the back­ground and real­is­tic per­spec­tive Pos­ner offers on national secu­rity and fight­ing ter­ror­ism. The dis­tinc­tions he draws between past threats and the cur­rent threat of global, uncon­ven­tional ter­ror­ism are valid… to a point.

J. Pos­ner lays out his excep­tion­ally valid argu­ment for why police pro­ce­dures do not ade­quately meet national secu­rity against ter­ror­ism; he makes intel­li­gent (if not con­vinc­ing) argu­ments for both why and how civil lib­er­ties must be weighed against national secu­rity mea­sures in times of national emer­gen­cies. He pays lip ser­vice to civil lib­er­tar­i­ans but dis­misses them, ulti­mately terming their views “exces­sive” and “irre­spon­si­ble”, but that is to be expected; after all, he hardly expects to con­vince any lib­er­tar­i­ans with his argu­ments. The biggest warn­ing flag was in the con­clu­sion, a pas­sage that was rem­i­nis­cent of Jus­tice Scalia’s dis­sent in Boume­di­ene:

Though scat­tered by our inva­sion of Afghanistan and by our stepped-up efforts at coun­tert­er­ror­ism, ter­ror­ist lead­ers may even now be regroup­ing, and prepar­ing an attack that will pro­duce destruc­tion on a scale to dwarf 9/11.(p.148)

Com­pare that pas­sage to Scalia’s:

I think it appro­pri­ate to begin with a descrip­tion of the dis­as­trous con­se­quences of what the Court has done today… It will almost cer­tainly cause more Amer­i­cans to be killed… The Nation will live to regret what the Court has done today.

Why, must they resort to base fear mon­ger­ing? I thought that was the exclu­sive juris­dic­tion of the media.
I would still sug­gest this book — it is an inter­est­ing read and at least gives excel­lent jump­ing off points for think­ing the issues through yourself.

UPDATE — 1/1/09 –
I real­ized late last night that I failed to make any men­tion of the actual point of the book.
J. Pos­ner points out many times that his main the­sis in the book is that many of the “cur­tail­ments” of civil lib­er­ties in times of national emer­gen­cies are, in fact, con­sti­tu­tional. To his credit, he stip­u­lates that just being con­sti­tu­tional does not nec­es­sar­ily make some­thing morally correct.

The con­sti­tu­tional issues he raises and attempts to put to rest waver right on the edge — depen­dent on how you view the con­sti­tu­tion and the impor­tance of the framers’ intent. I com­pared his views to Jus­tice Scalia’s ear­lier; those sim­i­lar­i­ties exist only so far as their agree­ment about the dan­ger of ter­ror­ism. I’m sure Scalia would have choice words regard­ing Posner’s view that:

Lan­guage and drafters’ intent are not the only or even, in my judg­ment, the best guides to con­sti­tu­tional rule mak­ing; they are merely the most ortho­dox ones.

That being said, I feel that Posner’s view is a much more prac­ti­cal and real­is­tic one than Scalia’s; I sim­ply dis­agree with the extent of some of the con­clu­sions in this book.

Beyond a reasonable doubt…

Posted by on 12/30/2008 No comments

I meant to write this post about a week or two ago.

Mary­land just heard from its com­mit­tee to inves­ti­gate the abo­li­tion of the death penalty and the committee’s con­clu­sion is that the argu­ments are stacked against keep­ing cap­i­tal pun­ish­ment around.  (I first dis­cov­ered this via Gideon’s blog)

The thing I find fas­ci­nat­ing and inex­plic­a­ble is that the pro­po­nents of the death penalty con­tinue to uti­lize the same argu­ments in their efforts to evan­ge­lize. The Anti-Capitalists… wait, let’s make that the Anti-Capital-Punishmentists (doesn’t sound as snazzy, but it won’t get me an FBI dossier) argue that there remains race bias in cap­i­tal cases, that cap­i­tal cases are arbi­trar­ily decided, that the human ele­ment defeats the pos­si­bil­ity of a truly fair trial, and that the death penalty fails to deter future criminals.

The Capital-Punishmentists (for uniformity’s sake) argue “nuh-uh!”. Scan­ning the com­ments in Gideon’s arti­cle show sim­i­lar argu­ments that I’ve heard all to often — the sta­tis­tics aren’t accu­rate. The stud­ies don’t defin­i­tively show that. The issues don’t “sub­stan­tially” affect the deter­mi­na­tion. I would under­stand if the argu­ments were reversed; if the pro­po­nents argued sta­tis­tics and stud­ies and the oppo­nents claimed that the stud­ies aren’t con­clu­sive. After all, this is a ques­tion of whether we put some­one to death — you’d want to be sure that the stud­ies are reli­able and determinative.

But to attempt to make a case for the death penalty by say­ing that the case against it isn’t strong enough makes no sense to me.

Chapter 2: Elementary Economics (or How to hold onto your lunch money)

Posted by on 12/22/2008 No comments

Last chap­ter we dis­cussed the impor­tance of genet­ics in finance. To sum up: it’s pretty darn impor­tant. Now let’s look at fis­cal con­cerns dur­ing early edu­ca­tion. I skipped over the baby years between because, let’s be hon­est, babies have an excel­lent return-on-assets ratio. For every asset they receive in their mouths (such as spinach) the return is much more than the par­ents bar­gained for. And the return usu­ally ends up all over the couch and bed­sheet and ceil­ing. And for­get about the smell…

Any­way, on to ele­men­tary school. The first thing you have to remem­ber is that every cent you save is going to go down on your per­ma­nent record. No, wait, sorry…. I mean every cent you save is going to pro­duce more inter­est in the bank and be a big­ger help when you get older. Unless you have piggy bank. What a cruel, inhu­mane and sick mar­ket­ing ploy: We’ll help teach kids how to save money by screw­ing them out of poten­tial inter­est and earn­ings on their sav­ings! You didn’t have a piggy bank, did you? You did!? You poor sap! Well, at least now you have this book to help you out, because you cer­tainly need it.

So we have ascer­tained that you need to save as much of your money as early as pos­si­ble, espe­cially in an account that grants inter­est. The obvi­ous prob­lem that plagues all lit­tle kids is… school bul­lies. Or so it would seem accord­ing to all comics and car­toons depict­ing Amer­i­can grade school. Have you ever had a run-in with a bully who took your lunch money? (Hint: No) When was the last time kids had lunch money? (Hint: The Civil War) How much was lunch money at that time and how much lunch could it buy? (Hint: If you ask your grand­fa­ther, it was a nickel and it could by lunch for your­self and two friends at the Ritz-Carlton, a cruise to the Bahamas and a mail-order bride.)

So what is the real chal­lenge fac­ing our grade school stu­dents? I have no idea. Hon­estly, did you ever have money when you were in Ele­men­tary and Mid­dle School? I didn’t. Even when my par­ents finally decided to give me an allowance, it was ridicu­lously small, and I was always reminded that it was sup­posed to help me learn to be a respon­si­ble adult which, as far as I could tell, meant being a miser. Because I was never sup­posed to spend it. It was sup­posed to stay in my room, in my under­wear drawer, slowly build­ing until, finally, I’d have enough to pay for my 10-speed in cash. Riiiiiiight.

I’d blow what­ever money I got on candy or toys. I think. I don’t remem­ber much from that period of my life; maybe I spent all that money on alco­hol. The only big money giv­ing occa­sions were birth­days; hol­i­days were devoted to sweaters and socks, and my allowance was the most con­fus­ing thing about my life at that time. Puberty was noth­ing com­pared to how my father cal­cu­lated my allowance.

I know some of you lucky kids had par­ents who were lazy and just decided on a flat amount as an allowance. They obvi­ously did not care about you. My father was one of the ones who decided that my allowance should be based on my age and grades and Body/Mass Index and Fed­eral Inter­est Rate and Wind Chill Fac­tor. The for­mula he used was insanely com­pli­cated and it inevitably came out to an even, round num­ber. Some­times it was very round. (He’s try­ing to be clever. He means it was noth­ing. (See, because 0 = round.)) Some­times it was even zero. (Oh, well then, we have no idea what he meant.)

So, to sum up: save what­ever money you can and try to put it some­where that will help it grow. Like in a mound of peat.

Dis­cus­sion Questions

  1. Have you ever had a run-in with a bully who took your lunch money? Explain.
  2. When was the last time kids had lunch money? Explain.
  3. How much was lunch money and how much lunch could it buy?
  4. Do these ques­tions seem famil­iar? Don’t Explain.
  5. What the heck is peat?

Chapter 1 — Fetal finance

Posted by on 12/19/2008 No comments

There isn’t much of this. How­ever, this is where most of the finan­cial know-how and entre­pre­neur­ship comes from. That’s right, it’s genetic. As proof, allow me to use a well-known exam­ple from all of our child­hoods:
When you were a child there were the kids who were like me – lazy. I never tried to mow the lawn for money, I never tried to shovel the dri­ve­way for money, hell, I never even tried to sell lemonade.

Then there were the kids who did try to make some money by doing what we nor­mal peo­ple call chores. These kids can be split up into two, eas­ily iden­ti­fi­able groups. The first group is not very large and is mainly pop­u­lated by future accoun­tants and Bill Gates. These were the kids who would trawl the entire neigh­bor­hood, sub­tly insult­ing and sab­o­tag­ing all the other kids’ attempts at mak­ing money. You know what I’m talk­ing about. The lit­tle snot would walk up to the door of a big house that’s at least 12 blocks away from where he lived and when the well-to-do-but-elderly-and-infirm-silver-haired-lady opened the door, he would almost bow.
“Good morn­ing, Mrs. Liv­er­spleen! I see that your lawn/walk is cov­ered in grass/snow. Now, either, “he would con­tinue, half-sniggering in a way that would seem obscene and pos­si­bly ille­gal if he was any older, or Mrs. Liv­er­spleen any younger, “either you were kind enough to allow lit­tle Joel Hic­cup­schmit to mow/shovel your lawn/walk, or nobody has been kind enough to offer to do so. Please, allow me to take care of it for you.”

Of course, Mrs. Liv­er­spleen would let him and he would do a fab­u­lous job, since that’s the kind of job a kid like that does, and Mrs. Liv­er­spleen would never even think of let­ting a bright, tal­ented and dar­ling young man like that do such a fab­u­lous job with­out some sort of com­pen­sa­tion. You or I would get lemon­ade and speech about her child­hood, but this lit­tle snot ends up mak­ing $17.50 an hour. And a shot of whiskey.
Of course, should poor lit­tle Joel Hic­cup­schmit ever come knock­ing to try and do a few chores, he’ll be chased away (albeit, at a slow speed) with a broom.

How­ever, there is another group. This group is pop­u­lated by poor, lit­tle Joel Hic­cup­schmit, and by Rex Luzer, and many, many other kids. This is the group that sucks. They don’t mean to, but they do. It shouldn’t even reflect badly on them. They have won­der­ful inten­tions; they try their hard­est. They just end up half done and some­thing hor­ri­ble hap­pens. Like the elec­tric lawnmower’s cord gets unplugged and they think it’s out of gas so they try refill­ing it, and the owner of the house sees the loose cord and plugs it back in and the poor sod ends up send­ing curse words via smoke sig­nals that are vis­i­ble from outer space.
Or they do a superb job shov­el­ing the walk, and then the tree that over­hangs the walk spon­ta­neously com­busts and the melted ice lands on the walk which, being cold, imme­di­ately freezes the water. Of course the poor kid went inside to get the owner and when the owner comes out to view their freshly shov­eled walk, they end up going on a very short and single-manned luge into the street, just when the snow plow is dri­ving by in the government’s effort to insure that every dri­ve­way in the state is blocked.

Yes, I am refer­ring to you and me. (Okay, not me; since we already estab­lished that I was too lazy to even bother try­ing in the first place. But I didn’t want you to feel lonely.) The key here is that you’re try­ing. You may not be suc­ceed­ing, but you’re try­ing. And that is why you bought this book. (Unless you bought this book because you needed a last minute gift and you were about to get the Best of SNL: The Knock-Knock Jokes when the guy behind you who reminded you of the nerd in 7th grade every­one beat up told you that it was his sec­ond favorite book, just after the Lord of the Sword of the Chron­i­cles of the Lion, the Ring and Flame series of 43 books and 12 appen­dixes. At that point you picked up the clos­est book at hand and bought that instead. Of course, since you gave it as a gift instead of read­ing it, I shouldn’t be blab­bing this all over town. Oops.)
Where were we… Oh yes, we were about to discuss…

Dis­cus­sion Questions

  1. Do you think this first chap­ter is a load of crock? Explain and bring proofs. (10 pts.)
  2. Do you think you will get graded on the dis­cus­sion ques­tions? (10 pts. if you answered “No”, –746 pts. if you answered “Yes”.)

Something about… Social Redundancy

Posted by on 12/14/2008 1 comment

Social media seems pretty big, huh? Still kind of shiny and new. Every new bit of func­tion­al­ity is excit­ing and worth a blog post or tweet.

One thing that still stops me from fully embrac­ing the social media uni­verse is some­thing that goes hand in hand with its nov­elty. Peo­ple are still exper­i­ment­ing with dif­fer­ent forms of it — which is good — but  it reminds me of the exchange in Some­thing About Mary:

Hitch­hiker: You heard of this thing, the 8-Minute Abs?
Ted: Yeah, sure, 8-Minute Abs. Yeah, the excer­cise video.
Hitch­hiker: Yeah, this is going to blow that right out of the water. Lis­ten to this: 7… Minute… Abs.
Ted: Right. Yes. OK, all right. I see where you’re going.
Hitch­hiker: Think about it. You walk into a video store, you see 8-Minute Abs sit­tin’ there, there’s 7-Minute Abs right beside it. Which one are you gonna pick, man?
Ted: I would go for the 7.
Hitch­hiker: Bingo, man, bingo. 7-Minute Abs. And we guar­an­tee just as good a work­out as the 8-minute folk.
Ted: You guar­an­tee it? That’s — how do you do that?
Hitch­hiker: If you’re not happy with the first 7 min­utes, we’re gonna send you the extra minute free. You see? That’s it. That’s our motto. That’s where we’re comin’ from. That’s from “A” to “B”.
Ted: That’s right. That’s — that’s good. That’s good. Unless, of course, some­body comes up with 6-Minute Abs. Then you’re in trou­ble, huh?
[Hitch­hiker con­vulses]
Hitch­hiker: No! No, no, not 6! I said 7. Nobody’s comin’ up with 6. Who works out in 6 min­utes? You won’t even get your heart goin, not even a mouse on a wheel.
Ted: That — good point.

There were blogs, then there were social media sites like Face­book; then there were microblogs like tum­blr, and then there was twit­ter and its ilk. I think there’s a good chance that we’ve reached the crit­i­cal mass of ‘blog­ging; most of the new advances will be aggre­ga­tion ser­vices, such as ping​.fm and flockr. As we all know, new media spawns alter­na­tives. VHS and Beta­max; HD-DVD and Blu-Ray. Until “the peo­ple” make a choice, we’ll con­tinue to see sites lit­tered with mil­lions of social media badges.

I’m not insin­u­at­ing that social media has a Highlander-like demand for there to be only one. I’m just point­ing out that there’s a lot of redun­dancy out there. As an exam­ple, I was dis­cussing tum­blr with Martha Sperry on twit­ter and we were weigh­ing tumblr’s func­tion and for­mat against a tra­di­tional blog and twit­ter. It finally occurred to me that all the func­tion­al­ity in tum­blr exists on Facebook’s wall; and with Face­book you already have the built-in net­work­ing functionality.

Dis­cus­sion Question:

Does an extended quote from a movie count as a “movie ref­er­ence”? Explain.

Regarding e-Discovery and metadata

Posted by on 12/12/2008 No comments

I men­tioned the ABA EDDE Case Digest I received by email in my last post. Since train­ing at work is over and I only have 3 finals left, I took some time to look over the digest.

In gen­eral, the cases cited sim­ply rein­force the notion that attor­neys must be savvy enough to know what to ask for dur­ing dis­cov­ery and that if you don’t request it, you don’t get it. One thing that stuck out at me, though, is the list of types of meta­data in the Sedona Principles:

“a. Sub­stan­tive Metadata”

“Sub­stan­tive meta­data, also known as appli­ca­tion meta­data, is “cre­ated as a
func­tion of the appli­ca­tion soft­ware used to cre­ate the doc­u­ment or file“
and reflects sub­stan­tive changes made by the user. Sedona Prin­ci­ples 2d Cmt.
12a; Md. Pro­to­col 26. This cat­e­gory of meta­data reflects mod­i­fi­ca­tions to a
doc­u­ment, such as prior edits or edi­to­r­ial com­ments, and includes data that
instructs the com­puter how to dis­play the fonts and spac­ing in a doc­u­ment.
Sedona Prin­ci­ples 2d Cmt. 12a. Sub­stan­tive meta­data is embed­ded in the
doc­u­ment it describes and remains with the doc­u­ment when it is moved or
copied. Id. A work­ing group in the Dis­trict of Mary­land has con­cluded that
sub­stan­tive meta­data “need not be rou­tinely pro­duced” unless the request­ing
party shows good cause. Md. Pro­to­col 26. ”

“b. Sys­tem Metadata”

” Sys­tem meta­data “reflects infor­ma­tion cre­ated by the user or by the
organization’s infor­ma­tion man­age­ment sys­tem.” Sedona Prin­ci­ples 2d Cmt.
12a. This data may not be embed­ded within the file it describes, but can
usu­ally be eas­ily retrieved from what­ever oper­at­ing sys­tem is in use. See
id. Exam­ples of sys­tem meta­data include data con­cern­ing “the author, date
and time of cre­ation, and the date a doc­u­ment was mod­i­fied.” Md. Pro­to­col
26. Courts have com­mented that most sys­tem (and sub­stan­tive) meta­data lacks
evi­den­tiary value because it is not rel­e­vant. See Mich. First Credit Union
v. Cumis Ins. Soc’y, Inc., No. Civ. 05–74423, 2007 WL 4098213, at *2
(E.D.Mich. Nov. 16, 2007); Ky. Speed­way, LLC v. Nat’l Assoc. of Stock Car
Auto Rac­ing, No. Civ. 05–138, 2006 WL 5097354, at *8 (E.D.Ky. Dec. 18,
2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). Sys­tem
meta­data is rel­e­vant, how­ever, if the authen­tic­ity of a doc­u­ment is
ques­tioned or if estab­lish­ing “who received what infor­ma­tion and when” is
impor­tant to the claims or defenses of a party. See Hagen­buch v. 3B6 Sis­temi
Elet­tron­ici Indus­tri­ali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3
(N.D.Ill. Mar. 8, 2006). This type of meta­data also makes elec­tronic
doc­u­ments more func­tional because it sig­nif­i­cantly improves a party’s
abil­ity to access, search, and sort large num­bers of doc­u­ments effi­ciently.
Sedona Prin­ci­ples 2d Cmt. 12a.”

“c. Embed­ded Metadata”

“Embed­ded meta­data con­sists of “text, num­bers, con­tent, data, or other
infor­ma­tion that is directly or indi­rectly inputted into a [n]ative [f]ile
by a user and which is not typ­i­cally vis­i­ble to the user view­ing the out­put
dis­play” of the native file. Md. Pro­to­col 27. Exam­ples include spread­sheet
for­mu­las, hid­den columns, exter­nally or inter­nally linked files (such as
sound files), hyper­links, ref­er­ences and fields, and data­base infor­ma­tion.
Id. This type of meta­data is often cru­cial to under­stand­ing an elec­tronic
doc­u­ment. For instance, a com­pli­cated spread­sheet may be dif­fi­cult to
com­pre­hend with­out the abil­ity to view the for­mu­las under­ly­ing the out­put in
each cell. For this rea­son, the Dis­trict of Mary­land work­ing group con­cluded
that embed­ded meta­data is “gen­er­ally dis­cov­er­able” and “should be pro­duced
as a mat­ter of course.” Id. at 27–28.”

It’s a start, but I think the prin­ci­ples are going about this the wrong way. Some of these dis­tinc­tions are arti­fi­cially cre­ated for the pur­pose of the list. Take the new MS Word file for­mat — the files are now xml based. That means that embed­ded within the file there can be sub­stan­tive meta­data as well as sys­tem meta­data. What do you demand? You can’t expect the oppos­ing side to parse through the code in a plain text edi­tor and weed out the impor­tant stuff; instead they’ll claim that it’s not nec­es­sary to pro­duce any of it.

So what can we do? We can treat meta­data like we treat any other type of data or infor­ma­tion or doc­u­ment that exists; don’t pre­tend that meta­data is special.

DISCLAIMER:  When I say “we” I mean “you”. I’m only a lowly law stu­dent who had J. Grimm for Evidence.

Quick rundown of interesting tidbits of the week…

Posted by on 12/10/2008 No comments

I’m in train­ing this week for Script­ing and Automat­ing Web­Sphere Appli­ca­tion Server (WAS) v.6.1. I cur­rently script and auto­mate WASv.6.1 but I do it much the way a typ­i­cal tod­dler solves dif­fer­en­tial cal­cu­lus. Hence, the training.

Betwixt the lec­tures and labs I’ve been see­ing some inter­est­ing things I wanted to share (read as tweet) but haven’t been able to (thanks to a band­width tight agency around the hol­i­days restrict­ing every­thing from twit­ter to gmail):

Well, that’s all for now. Time to head home.

Practical scholarship

Posted by on 12/07/2008 No comments
Supreme Court at night

Supreme Court at night

In the throes of finals prepa­ra­tions, I have been cir­cling an idea that I decided needed to be recorded. I took Fed­eral Juris­dic­tion this semes­ter with a bril­liant pro­fes­sor who was extremely capa­ble of both com­mu­ni­cat­ing the intri­ca­cies of the mate­r­ial as well as boil it down to what it means to a prac­tic­ing attorney.

The issue that is gnaw­ing at the back of mind is that the prac­ti­cal use of the class can be cut short to maybe a week of mate­r­ial. Most of it ends with, “…and the Court will end up doing what­ever it feels like, so hedge your bets.”

I found the class and mate­r­ial fas­ci­nat­ing, but was it nec­es­sary? All I needed was for some­one to tell me the impor­tant cases to cite in cer­tain cir­cum­stances and warn me that there’s no telling what will hap­pen… Which, I gather, is the first piece of advice any lit­i­gat­ing attor­ney has to offer.

Life goes on… and on… and on…

Posted by on 12/05/2008 No comments

‘Tis the sea­son! The finals sea­son, as opposed to the hol­i­day sea­son. The two are nearly sim­i­lar: one is  a time of bit­ter­ness, depres­sion and strife; and finals sea­son is even worse.

Allow me to pause while you groan.

Being a non-traditional law stu­dent gives me a unique per­spec­tive on finals. My day job is extremely flex­i­ble and I am able to take days off to study; and my fam­ily — my wife, since the kids are too young to have a real say — is also sup­port­ive and won­der­ful, let­ting me study in (rel­a­tive) peace while I’m home.

That  being said, life for a non-traditional stu­dent does not stop dur­ing finals. I can’t study through the night since I have a fam­ily to pay some mod­icum of atten­tion to and work to go to (early) the next morn­ing. I can’t focus my entire brain power solely on the issues of the semes­ter since I have a job that requires the use of my brain. How fondly I recall my days doing con­struc­tion work! Ok, not so fondly…