Litigation and Trial - Max Kennerly : Philadelphia Trial Lawyer Max Kennerly : Business and Commercial Litigation : Civil Attorney : The Beasley Firm : Philadelphia Pennsylvania

Yesterday, after posting a link to a productivity guide recommending email be checked twice daily, I saw this leaked email from a big name at a litigation powerhouse:

Now more than ever there are many talented lawyers and law firms competing for our business. Doing really good legal work is not enough. Clients expect that and well they should given what we charge for our services You must all realize that we are in a service business. In this day and age of faxes, emails, internet, etc. clients expect you to be accessible 24\7. Of course, that is something of an exaggeration—but not much.

LESSON NUMBER ONE: You should check your emails early and often. That not only means when you are in the office, it also means after you leave the office as well. Unless you have very good reason not to (for example when you are asleep, in court or in a tunnel), you should be checking your emails every hour. One of the last things you should do before you retire for the night is to check your email. That is why we give you blackberries. I can assure you that all of our clients expect you to be checking your emails often. I am not asking you to do something we do not do ourselves. I can assure you that [other big names at the firm], etc. all check their emails often.

I check my email frequently except when I don't.

There's two reasons for those times that I don't.

First, to follow the advice of Seneca, himself a great trial lawyer, on keeping a law practice in perspective:

Look at those whose prosperity men flock to behold; they are smothered by their blessings. To how many are riches a burden! From how many do eloquence and the daily straining to display their powers draw forth blood! How many are pale from constant pleasures! To how many does the throng of clients that crowd about them leave no freedom! In short, run through the list of all these men from the lowest to the highest—this man desires an advocate, this one answers the call, that one is on trial, that one defends him, that one gives sentence; no one asserts his claim to himself, everyone is wasted for the sake of another.

But there are also less lofty reasons to avoid the siren song of the crackberry.

The second reason I take time off from email — both scheduled time and time as needed — is to follow Sun Tzu's command: "Ponder and deliberate before you make a move."

Cognitive science agrees:

After a 30-minute study period, the students were separated into three groups to test their understanding of the larger "big picture" relationship between the individual patterns: Group One was tested after a period of 20 minutes; Group Two was tested after a 12-hour period; and Group Three was tested after a 24-hour time span. In addition, approximately half of the students in Group Two slept during the 12-hour period, while the other half remained awake. All of the students in Group Three had a full night's sleep.

The test results showed striking differences among the three groups, especially between the students who had a period of sleep and those who remained awake.

"Group One, the students who were tested soon after their initial learning period, performed the worst," says Walker. "While they were able to learn and recall the component pieces [for example, Shape A is greater than Shape B, Shape B is greater than Shape C] they could not discern the hierarchical relationships between the pieces [Shape A is greater than Shape C] -- they couldn't yet see 'the big picture.'"

Groups Two and Three, on the other hand, demonstrated a clear understanding of the interrelationship between the pairs of shapes.

"These individuals were able to make leaps of inferential judgment just by letting the brain have time to unconsciously mull things over," he says. But, perhaps most notable, he adds, when the inferences were particularly difficult, the students who had had periods of sleep in between learning and testing significantly outperformed the other groups.

Strategic planning and tactical maneuvering in litigation requires a lot of thought, including the serious application of inferential judgment and relational memory, the types of cognitive work that demand contemplation and downtime.

Make room for that cognitive work. The crackberry can wait.

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At Rolling Stone:

Weigman's auditory skills had always been central to his exploits, the means by which he manipulated the phone system. Now he gave Lynd a first-hand display of his powers. At one point during the visit, Lynd's cellphone rang. "I can't talk to you right now," the agent told the caller. "I'm out doing something." When he hung up, Weigman turned to him from across the room. "Oh," the kid asked, "is that Billy Smith from Verizon?"

Lynd was stunned. William Smith was a fraud investigator with Verizon who had been working with him on the swatting case. Weigman not only knew all about the man and his role in the investigation, but he had identified Smith simply by hearing his Southern-accented voice on the cellphone — a sound which would have been inaudible to anyone else in the room. Weigman then shocked Lynd again, rattling off the names of a host of investigators working for other phone companies. Matt, it turned out, had spent weeks identifying phone-company employees, gaining their trust and obtaining confidential information about the FBI investigation against him. Even the phone account in his house, he revealed to Lynd, had been opened under the name of a telephone-company investigator. Lynd had rarely seen anything like it — even from cyber gangs who tried to hack into systems at the White House and the FBI. "Weigman flabbergasted me," he later testified.

As I wrote before in the context of Marc Dreier, "In the world of computer security, that's known as social engineering. Hackers have recognized for a long time that it is far easier to trick someone into giving up their password than to 'hack' it via wizardry."

Weigman's story is incredible, a blind teenager with nothing more than a phone who managed to dispatch SWAT teams, attack other phone hackers ("phreaks"), relentlessly harass phone company investigators, and complicate the FBI's investigation into him.

A Wired story about his sentencing includes an audiotape of him smooth-talking an AT&T operator (by using a small amount of internal lingo and a chatty demeanor) into disconnecting someone's phone line.

I highlight these stories for several reasons, not least to reiterate the importance of (and presumption of) trust in our interdependent society. It's always easy in retrospect to see "obvious" signs of fraud, to recognize the importance of verifying someone else's statements, and to understand the need to reduce agreements and understandings to writing.

But the truth is, no one can protect themselves all the time, at least not if they have any plans for their life other than perpetual paranoia.

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Time for a change of pace, some outside ideas to keep our minds limber.

First, "What's Wrong With E=MC^2?"

So what is the problem with Einstein's mass-energy relation?

Well, to put it bluntly, there is no such thing as a mass-energy relation. What does exist is a mass-energy-momentum relation. The equation Einstein came up with more than a century ago can be considered a degenerate form of the mass-energy-momentum relation for vanishing momentum. Einstein was very well aware of this, and in later papers repetitively stressed that his mass-energy equation is strictly limited to observers co-moving with the object under study. However, very, very few people seem to have paid attention to Einstein's warnings, nor to any of the more recent warnings. Even worse, the vast majority of authors of popular science books take great liberty in applying E=mc² to objects moving at speeds close to the speed of light, and then declare mass to increase with velocity in an attempt to recover consistency in what has become an incoherent mix of relativistic and Newtonian dynamics. Theoretical physicist Lev Okun refers to this practice as a “pedagogical virus”.

Second, "Why No New Einstein?"

Pretty much every knowledgeable particle theorist that I talk to these days, string theorist and non-string theorist, agrees that current ideas about how to go beyond the standard model are not working very well. Everyone hopes that some big new idea will come along and show the way forward, with people often wistfully speaking about how maybe some bright post-doc out there may be at this very moment working on the needed new idea. The problem with this is that what is needed is probably something quite different than any of the current popular research programs, and finding it may be difficult enough to require someone’s concerted effort over quite a few years. If this is so, it’s very hard to see how anyone on the standard career path in the US is going to be able to do this. A young post-doc here generally only has a couple years in between needing to apply for new jobs, and if he or she were to devote those years to working hard on a very speculative new idea, this would most likely be suicidal for their career.

Food for thought.

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Following up on their own post a month ago, the dynamic defense duo at Drug & Device Law posted:

A couple of weeks ago, Herrmann noted in passing that, although many big firms now sponsor blogs, none of the ten firms with the highest profits per partner (that much-despised, but oft-cited metric) do. ...

Many folks contacted us, on or off-line, to suggest why lawyers at the most profitable firms don't blog.

Those ten most profitable large corporate firms -- Wachtell, Quinn Emanuel, Boies Schiller, Sullivan & Cromwell, Paul Weiss, Cravath, Simpson Thacher, Cleary, and Schulte Roth -- "have no apparent affiliation with any blogs at all."

D&D Law summarize the opinions offered to them as:

1. Lawyers at the most profitable firms are stupid.

2. Lawyers at the most profitable firms are too busy.

3. Lawyers at those firms won't stoop to blog.

4. Lawyers at those firms don't want to give away their product for free.

5. Lawyers at those firms lack the necessary skill set.

6. Lawyers at those firms believe that blogging is unlikely to yield a decent return on investment.

A little more detail at their site; sadly, they keep their conclusions to themselves. Maybe next time. Legal Blog Watch links to a few other arguments on the subject.

Let me take a page from another arena: content publishers. There's been a big hoopla in the blogosphere lately over Malcolm Gladwell's highly critical review in The New Yorker of Free, the new book by Wired Magazine's editor-in-chief Chris Anderson, whose blog ("The Long Tail") is here. If you're interested in that debate, Anderson's response is here, Seth Godin's take is here ("Malcolm is wrong"), and Clay Shirky's ruminations on the inevitable end of the newspaper is here.

More useful for our purposes is Michael Nielsen's thoughtful examination of the scientific publishing industry, in which he argues that "even smart and good organizations can fail in the face of disruptive change, and that there are common underlying structural reasons why that’s the case:"

[S]ome of the forces preventing change are strongest in the best run organizations. The reason is that those organizations are large, complex structures, and to survive and prosper they must contain a sort of organizational immune system dedicated to preserving that structure. If they didn’t have such an immune system, they’d fall apart in the ordinary course of events. Most of the time the immune system is a good thing, a way of preserving what’s good about an organization, and at the same time allowing healthy gradual change. But when an organization needs catastrophic gut-wrenching change to stay alive, the immune system becomes a liability.

Elite law firms' hostility to the concept of "blogging" is a function of those law firms' highly effective immune systems. The most profitable firms on those lists earned their way to the top by building effective, reputable practices that can command top fees for unique talent and experience. They are diversified, in demand, and have remained at the top of the field through multiple changes in leadership and in the marketplace. They have proven themselves.

Consequently, elite corporate law firms have built over time strong organizational immune systems, systems that, for example, quite literally reject foreign bodies from entering by way of resistance to lateral partners.

Mention blogging, social media, or the like and watch the immune system kick in. Why waste time messing with success? AmLawDaily picked up the phone, called the firms, and got exactly that answer:

[W]e put out calls to managing partners and spokesman at nine of the ten firms (we excluded Kirkland & Ellis, because, as Beck and Herrmann note, a Kirkland associate played a role in creating the popular Sports Law Blog) to ask them about their stance on blogging. The conversations we had centered on a general theme: The firms just don't see the point. They are already successful, so they don't feel the need to market themselves or prove their grasp of a particular subject matter in the limited spare time they have. 

We'll let Jonathan Schiller of Boies, Schiller & Flexner sum it up: "I think the lawyers here are just too busy," he says. "I'm too old to blog. I'd rather play golf if I have a bit of free time."

The real question is not why big firms don't "blog;" the answer is "because they don't want to blog." The immune system rejects blogging, much as it rejects changes to alternative fee arrangements and compensation structures.

The real question is if elite corporate law firms should blog and the answer is yes.

How do I presume to know that? Because, as the AmLawDaily further points out, most elite firms effectively blog and have blogged for some time:

We wonder, though, whether there is much difference between blogging and putting out so-called client memos and (often) displaying those memos on a firm's Web site. Wachtell, Lipton, Rosen & Katz, for instance, has about as austere a Web site as exists online anymore, and thus seems perhaps the least likely candidate in the Am Law 100 to produce an opinionated or less formal blog. But the firm regularly releases memos that are quite opinionated, including one in the fall that implored the SEC to reinstate the Uptick Rule to limit short-selling. That could just as easily have appeared on any high-brow economic law blog. (A firm spokeswoman and name partner David Katz did not respond to our messages seeking comment.)

You can read many of these Wachtell memos, along with memos from heavyweights at Cravath, Sullivan Cromwell, Latham Watkins, Gibson Dunn, et al, at The Harvard Law School Corporate Governance Forum, which refers to itself as a "blog." Skim down the list of "guest contributors" (not "guest bloggers") on the left side of the "Forum's" website -- might as well be a Wall Street Christmas party.

But they don't call it "blogging." They call it "updates" and "newsletters" and "forums" and "panels" and "discussions." 

The wording doesn't matter. They're out there every day showing off their expertise for free. Welcome to blogging, you blogging bloggers.

One more issue before we go. As Nielsen also noted:

The problem is that your newspaper has an organizational architecture which is, to use the physicists’ phrase, a local optimum. Relatively small changes to that architecture - like firing your photographers - don’t make your situation better, they make it worse. ... Unfortunately for you, there’s no way you can get to that new optimum without attempting passage through a deep and unfriendly valley. The incremental actions needed to get there would be hell on the newspaper. [Ed by MSK - more on this concept's application to business here]

Thus, the real real question is if this blogging or crypto-blogging is the major shift itself or merely a small experiment as part of a much larger "disruption" in the legal industry comprised of, inter alia, blogging, social media, transparency, alternative fee agreements, telecommuting, virtual workers, outsourcing, and collaborative / cooperative practice?

Put another way, are elite corporate law firms sitting in a "local optimum" that works now but keeps them from getting to where they want to be in the future? Elite firms are certainly considering the possibility, hence finding their "client memos," for free, alongside competitors' free "client memos," on a law school blog. They're also upending the structure of their compensation and associate training, even if clients don't believe them.

We may have to wait and see what the answer is. As described in Clay Shirky's piece linked above, in which he summarizes the turbulent transition following Gutenberg's invention of the printing press as "chaotic:"

When the Bible was translated into local languages some people saw it as an educational boon, others as the work of the devil. Erotic novels appeared, prompting the same sort of response. Copies of Aristotle and Galen circulated widely, but direct encounter with the relevant texts revealed that the two sources clashed, tarnishing faith in the Ancients. As novelty spread, old institutions seemed exhausted while new ones seemed untrustworthy; as a result, people almost literally didn’t know what to think. If you can’t trust Aristotle, who can you trust?

Only in retrospect were experiments undertaken during the wrenching transition to print revealed to be turning points. Aldus Manutius, a Venetian printer and publisher, invented the smaller octavo volume. What seemed like a minor change—take a book and shrink it—was in retrospect a key innovation in the democratization of the printed word. As books became cheaper, more portable, and therefore more desirable, they expanded the market for all publishers, heightening the value of literacy still further.

That is what real revolutions are like. The old stuff gets broken faster than the new stuff is put in its place. The importance of any given experiment isn’t apparent at the moment it appears; big changes stall, small changes spread. Ancient social bargains, once disrupted, can be neither mended nor quickly replaced, since any such bargain takes decades to solidify.

 

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Two posts on the same day. Sarah Randag at ABA Journal Law News Now:

Jordan Furlong wonders in a recent post at Law 21 if "we’ll soon be closing the book on one of the legal profession’s most-used and least-understood phrases of the last decade: 'work-life balance.' "

With 10,000 law firm jobs lost in 2009, not to mention waves of announcements of pay cuts and associate deferrals, work-life balance has become a touchy subject.

"Even the most active WLB boosters have toned down talk that might earn them the dreaded 'entitlement' label," Furlong writes. "Realist observers like Dan Hull and Scott Greenfield have gained the upper hand in the WLB discussion," perhaps referring to a InsideCounsel SuperConference panel at which those two lawyers took on Millennials.

...

"If WLB stood for anything, it was for the fact that we all have the right and the obligation to make that tradeoff on the terms we want."

But Furlong agrees with work-life balance proponents that in their first few years of practice, saddled with increasingly high debt, lawyers understandably feel compelled to seek jobs with heavy workloads. And "billable-hour targets for associates at more than a few firms simply can’t be achieved without damage to one’s health or ethics, or both," he writes.

Furlong worries, that now that the moment has passed, "WLB will be relegated to the status of a mere generational quarrel during a freak economy."

Denise Howell at The American Lawyer (at law.com):

It's thus tempting to view balance as a fair-weather topic, brought up only when lawyers feel secure about their jobs and alternatives. ...

It's nothing short of depressing, and things seem likely to get worse before they get better. But even in a recession it's important not to shelve these policies completely.

It may seem counterintuitive, but flexibility and balance-oriented policies are tools that can help firms survive the conflagration. "Eat what you kill" is traditionally associated with the most cutthroat, internally competitive firms. A compensation system where one's career survival depends directly and constantly on the dollars one brings in the door has been seen -- historically, anyway -- as inflexible. But "eat what you kill" and "work/life balance" (with its "work less, make less" compensation system) share one goal: to pay lawyers only for work that enhances the bottom line.

As a result, the two systems can live together very well. Layoffs cost firms, both financially (the lost investment in laid-off lawyers, and the premium often paid in ramping back up) and in terms of reputation (from "They're going under" to "Remember what they did to associates back in '09?"). When those costs are taken into account, scaling back lawyer hours starts to look better and better.

Deborah Epstein Henry, founder and president of consulting firm Flex-Time Lawyers, urges firms to open their eyes to the reality that, unlike layoffs, promoting reduced hours cuts costs now, prevents future recruiting and training expenses, engenders loyalty, improves morale and quells the burnout and lack of productivity that may otherwise plague those left in a fragmented workplace.

If there's one lesson from the latest disruption in the legal world, it's there is no one way to run a law firm. Whether that disruption is from technology, demographics, or economics, there comes a time when you have to start finding 1,000 ways not to build a light bulb.

The NYTimes is overstating the change -- "Big, as a business model (let alone as an expression of the national mood), seems bound for obsolescence." -- but so are critics of "WLB" suggesting that efficiency or value-based lawyer employment is gone.

Indeed, a clear lesson from the "risky, transient" nature of big firms I discussed yesterday, is the danger of expanding too quickly, particularly expanding high fixed costs or becoming too reliant on unstable practice areas. 

"Work-life balance" has never been about being lazy or overpaid -- it was about matching what workers had to offer with what the market needed. Right, it seems a lot of firms "need" a lot less than they thought, something which many employees are more than happy to offer.

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Two interesting stories today.

Twittering Teens Terrorize the City:

A mob of tech-savvy teens tweeted their way into the same place in South Philly over the weekend and then went wild.

"It's kind of a new dynamic that's growing, with large groups of juveniles using the social networks to get out the word," said Philly police Lt. Frank Vanore. "We're not going to tolerate it."

Hundreds of teens who coordinated through MySpace and Twitter, hijacked a taxi at 12th and South Street, assaulted and yanked a woman and passenger out of their car and vandalized a convenience store at Broad and Catharine Streets.

Most of the teens were between the ages of 14 and 17.

Judge Reprimanded for Friending Lawyer and Googling Litigant:

A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.

Judge B. Carlton Terry Jr. and lawyer Charles Shieck both posted messages about the child custody and support case heard last September, the Lexington Dispatch reports. Terry also accessed the website of the opposing litigant and cited a poem she had posted there, according to the April 1 public reprimand (PDF) by the North Carolina Judicial Standards Commission.

The opinion says Terry and Shieck first discussed Facebook in chambers in the presence of the opposing lawyer in the case, Jesse Conley, who said she didn’t know what Facebook was and didn’t have time for it. After the discussion, Terry and Shieck friended each other. Shieck later posted a Facebook reference to the issue of whether his client had had an affair, saying “How do I prove a negative?” according to the opinion. Shieck also wrote, “I have a wise judge.”

...

The opinion says the ex parte communications and the independent gathering of information indicated a disregard of the principles of judicial conduct.

These feel like "new" issues, but they're not. The law of social media is the same as the law of everywhere else. Those aren't the first teens to vandalize an area, nor is Judge Terry the first to seek out information on litigants outside of the court.

The difference is, as Seth Godin put it, "everything goes on your permanent record."

Ten years ago, no one would have found any of the teens and the judge's prying would have gone unnoticed. Now it's plastered everywhere on the internet, or at least available through a quick subpoena.

Where will we be ten years from now?

Judge Sotomayor is getting grilled over a line in a speech several years ago. What if lurking in Google's permanent memory we saw that @soniasotomayor had been invited to 12th and South Street?

The New York Times' "Room for Debate" covered the concern about too much publicity and too much social media recently, with Clay Shirky at NYU writing:

Society has always carved out space for young people to misbehave. We used to do this by making a distinction between behavior we couldn’t see, because it was hidden, and behavior we could see, because it was public. That bargain is now broken, because social life increasingly includes a gray area that is publicly available, but not for public consumption.

Given this change, we need to find new ways to cut young people some slack. Privacy used to be enforced by inconvenience; you couldn’t just spy on anyone you wanted. Increasingly, though, privacy will have to be enforced by us grownups simply choosing not to look, since it’s none of our business.

This discipline isn’t just to protect them, it’s to protect us. If you’re considering a job applicant, and he has some louche photos on the Web, he has a problem. But if one applicant in 10 has similar pictures online, then you’ve got a problem, because you’ll be at a competitive disadvantage for talent, relative to firms that don’t spy.

Maybe we all need to cut each other a little more slack. Maybe we all need to hold ourselves to a higher standard.

Because the permanent record society is here to stay.

Google "Judge B. Carlton Terry Jr." Who knows who he was before, now he's "Judge reprimanded."

As for the teens, being between 14 and 17 means they can likely get their criminal records expunged as adults.

But not their Twitter records.

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Since I don't have access to President Obama's "shortlist," I'll rely on Intrade to tell me the most likely nominees for fill Justice David Souter's seat on the Supreme Court.

Right now, five candidates break double-digit odds (links are to Wikipedia): 

• Sonia Sotomayor
• Diane Pamela Wood 
• Elena Kagan 
• Kim McLane Wardlaw
• Jennifer Granholm

[edit -- if this AP article is correct, then Wardlaw's not under consideration, but Janet Napolitano and Carlos Moreno are. I've thus added a dissent by Justice Moreno.]

Since he's the one doing the choosing, let's quote Obama on the Supreme Court:

[I]n the overwhelming number of Supreme Court decisions, [intellect is] good enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all going to agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart? What’s their broader vision of what America should be?

As all five are still with us, I assume the answer to the former is "oxygenated blood."

The latter, however, can be answered in part by exploring how these potential nominees previously ruled in those "five percent of the cases that really count."

Three are currently judges (Sotomayor, Wood and Wardlaw) and so give us examples -- in the form of dissents -- for how they decide controversial cases.

Why dissents? Because a dissent is one of the few times in which a judge, having seen what the majority (and thus precedential) result will be, is openly trying to change the direction of the law. The primary purpose of a dissent is to limit the impact of the majority opinion, to direct future courts, lawyers and policymakers to conclusions different from those reached by the majority. They're the best glimpse into what judges are "really" thinking, because they show where the judge "really" wants the law to go.

I've picked out [four] cases in which there was insufficient precedent to guide the majority or dissent jurists to a clear conclusion, thereby requiring the judges draw on their "broader vision of what America should be" to decide.

Here's Sotomayor, standing up for the First Amendment rights even of a bigoted police officer fired for anonymous hate speech:

Today the Court enters uncharted territory in our First Amendment jurisprudence. The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech -- where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee's own time; where the employee's position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community. Precedent requires us to consider these factors as we apply the Pickering balancing test, and each counsels against granting summary judgment in favor of the police department employer. To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

Pappas v. Giuliani, 290 F.3d 143, 154 (2d Cir. 2002).

Here's Wood balancing the difficulty of, yet clear Congressional support for, permitting the victims of terrorism to pursue alleged enablers of terrorism through civil litigation:

This is a heart-breaking case. No parent can fail to empathize with Joyce and Stanley Boim, who lost their son to the evil of terrorism just as he was on the brink of all of life's promise. Nothing can bring David Boim back, but the Boims have taken advantage of a statute that Congress passed that was designed to provide some degree of accountability for those who commit such awful acts. See 18 U.S.C. § 2333(a). In Boim v. Quranic Literacy Inst. & Holy Land Found., 291 F.3d 1000 (7th Cir. 2002) ('Boim I'), this court decided that the set of possible defendants in such an action includes not only the direct actors (here, Amjad Hinawi and Khalil Tawfiq Al-Sharif) and the organization to which they belonged and that directed their actions (here, said to be Hamas), but also organizations that aid and abet the former two. When all is said and done, the en banc majority has reaffirmed the latter ruling, though it does so under a slightly different rubric. But, in our zeal to bring justice to bereaved parents, we must not lose sight of the need to prove liability on the facts that are presented to the court. Assumptions and generalizations are no substitute for proof. Particularly because, unfortunately, this probably will not be the last case brought by a victim of international terrorism, it is crucial that we be as clear as we can in fleshing out the statutory requirements and that we do not rush to judgment. Because I do not agree with the majority's articulation and application of some of the governing legal standards, and I find too many central facts to be in dispute, I am still of the view that this case needs to be remanded for further proceedings.

Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 719 (7th Cir. 2008)(PDF here).

Here's Wardlaw arguing the Federal Americans With Disabilities Act's broad authorization of injunctive relief trumps circuit-to-circuit comity concerns and thus empowers a district court to enter a nationwide injunction against a discriminating company so long as that court's relief is appropriate for the plaintiffs involved:

In light of the 'considerable discretion' a district court has 'in fashioning suitable relief and defining the terms of an injunction,' our precedent commands 'correspondingly narrow' appellate review. Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (internal quotation marks omitted). Unfortunately, the majority's review is far from narrow. Instead, based on a tenuous apprehension of 'substantial interference' with the law of the Fifth Circuit, the majority vacates the district court's injunction without ever explaining how that remedial order was an abuse of discretion. Because the district court's injunction did not exceed the specific harm alleged, it cannot have been overbroad. See id.; see also Bresgal, 843 F.2d at 1170-71 ('[A]n injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit--even if it is not a class action--if such breadth is necessary to give prevailing parties the relief to which they are entitled.' (emphasis omitted)). Moreover, because the relevant comity cases actually support the scope of the district court's injunction, it is clear that the district court did not rely on erroneous legal principles. Confronting AMC's nationwide violations of § 4.33.3, and keeping in mind the ADA's stated purpose 'to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,' 42 U.S.C. § 12101(b)(1), the district court was well within its discretion in granting nationwide relief. Thus, I dissent."

United States v. AMC Entm't, Inc., 549 F.3d 760, 781 (9th Cir. 2008)(PDF here).

[As described above, Wardlaw is apparently not under consideration, but another Judge, Carlos Moreno, is.] Finally, here's Moreno, arguing due process protections require, even in the absence of clear prejudice, reversing several criminal convictions due to the trial court's failure to disqualify the local prosecutor's office, where one of the defendant's parents worked:

The pattern of conduct by the prosecutor in this case established that Vasquez was treated differently and less favorably than another defendant in his position would have been who did not have Vasquez's family connection to the LACDA. This disparate treatment of Vasquez violated the duty imposed on prosecutorial offices to exercise their discretion in an impartial and evenhanded manner 'born of objective and impartial consideration of each individual case.' (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 267 [137 Cal. Rptr. 476, 561 P.2d 1164].) As we stated in Greer, '[i]ndividual instances of unfairness, although they may not separately achieve constitutional dimension, might well cumulate and render the entire proceeding constitutionally invalid.' (Id. at p. 265.) That point was reached by the time of the second motion to recuse because by then there was demonstrable evidence that the prosecutor's discretionary decisions were being driven by the LACDA's concern that it not be perceived as showing any favoritism to Vasquez due to his family connection to the office. Because 'we do not know and cannot now ascertain what would have happened if the prosecuting attorney had been free to exercise the fair discretion which he owed to all persons charged with crime in his court' (Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709, 714), I am unable to conclude that the constitutional violation was harmless beyond a reasonable doubt. (Ibid., citing Chapman v. California (1967) 386 U.S. 18 [17 L. Ed. 2d 705, 87 S. Ct. 824].) Accordingly, I would reverse defendants' convictions."

People v. Vasquez, 39 Cal. 4th 47, 72–73, 137 P.3d 199, 215–16, 45 Cal. Rptr. 3d 372, 391 (2006).

The cases are long and complicated, but worth reading because they touch upon basic -- yet unresolved -- questions of American law and governance, from the protections of anonymous (and hate) speech, to the intersection of civil recovery and national security, to the reach of the powers of a single district court in our federal system. The decisions reached by the majorities in each case have ample support in precedent and political theory, yet were not persuasive to judges Sotomayor, Wood, Wardlaw and Moreno.

It's worth seeing why not, and what they believed should have been done instead.

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Tim Ferriss, author of The 4-Hour Workweek, has been covering Soticism lately, most recently with a post on Seneca's "On The Shortness Of Life," including this passage:

Vices beset us and surround us on every side, and they do not permit us to rise anew and lift up our eyes for the discernment of truth, but they keep us down when once they have overwhelmed us and we are chained to lust. Their victims are never allowed to return to their true selves; if ever they chance to find some release, like the waters of the deep sea which continue to heave even after the storm is past, they are tossed about, and no rest from their lusts abides.

Think you that I am speaking of the wretches whose evils are admitted? Look at those whose prosperity men flock to behold; they are smothered by their blessings. To how many are riches a burden! From how many do eloquence and the daily straining to display their powers draw forth blood! How many are pale from constant pleasures! To how many does the throng of clients that crowd about them leave no freedom! In short, run through the list of all these men from the lowest to the highest—this man desires an advocate, this one answers the call, that one is on trial, that one defends him, that one gives sentence; no one asserts his claim to himself, everyone is wasted for the sake of another.

Ask about the men whose names are known by heart, and you will see that these are the marks that distinguish them: A cultivates B and B cultivates C; no one is his own master. And then certain men show the most senseless indignation—they complain of the insolence of their superiors, because they were too busy to see them when they wished an audience! But can anyone have the hardihood to complain of the pride of another when he himself has no time to attend to himself?

After all, no matter who you are, the great man does sometimes look toward you even if his face is insolent, he does sometimes condescend to listen to your words, he permits you to appear at his side; but you never deign to look upon yourself, to give ear to yourself. There is no reason, therefore, to count anyone in debt for such services, seeing that, when you performed them, you had no wish for another’s company, but could not endure your own.

What Seneca would think of Above The Law's 2008 survey, in which more than half of ATL's BigLaw associate readers broke 2000 billable hours?

The Attorney Work / Life Balance Calculator shows that, assuming two weeks vacation, eleven holidays, five personal days, a half-hour commute and an unbillable hour a day (lunch, administration, water cooler, etc), then those associates are spending at least the 10.5 best hours of every workday in the office, car, courtroom, or conference room.

Throw in 6.7 hours of sleep every workday, a quarter-hour getting ready before and a quarter-hour decompressing after, a half-hour finding or making dinner, and they're left with, at the most generous, 5.8 tired hours a weekday to themselves, plus the weekends, unless the partner calls them in.

Maybe that's enough. Maybe they like what they do and where they're going, they owe no apologies for that. I like what I do. So do many lawyers.

But life's too short to do anything because you "should."

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Not too long ago, I believe at the recommendation of Walter Olson at Overlawyered, I started reading WhiteCoat Rants (renamed WhiteCoat's Call Room when he moved to Emergency Physicians Monthly), an anonymous blog authored by a voluble ED doctor.

I have over 300 feeds in my Google Reader, including venture capitalists, scientists, professors, economists, security professionals, and ship captains, and while I frequently read Grand Rounds, I didn't regularly follow many practicing physicians.

So, what the heck.

I didn't expect to comment or to debate, just get another perspective. I have my own blog in part to channel the temptation to respond when Someone Is Wrong On The Internet into a more productive form. That said, I think it's worthwhile to chime in on another blog when I think it will add value to the discussion, which is what happened with WhiteCoat's defensive medicine post, my response, his reply, and my sur reply.

Defensive medicine is a controversial topic made worse by the absence of good empirical data about its existence or prevalence. A GAO study in 2003 found the effect to be minimal and possibly non-existent, and I think the whole idea of "defensive" medicine is conceptually flawed, but it's such a broad, hot-button subject that I don't expect many minds to change one way or another over it.

I didn't expect the same for EMTALA.

Here's the American Academy of Emergency Medicine (AAEM):

The Emergency Medical Treatment and Active Labor Act (EMTALA) was included in the COBRA legislation of 1986. It was promulgated to combat the discriminatory practice of some hospitals transferring, discharging, or refusing to treat indigent patients coming to the emergency department because of the high cost associated with diagnosing and treating these patients with emergency medical conditions. While the Act applies to all Medicare participating hospitals, it protects anyone coming to a hospital seeking emergency medical services, not just Medicare beneficiaries. EMTALA imposes strict penalties including fines and exclusion from the Medicare program for violations of the Act. The Act imposes three primary requirements on Medicare participating hospitals that provide emergency medical services.

• The hospital must provide an appropriate medical screening exam to anyone coming to the ED seeking medical care;

• For anyone that comes to the hospital and the hospital determines that the individual has an emergency medical condition, the hospital must treat and stabilize the  emergency  medical    condition, or the hospital must transfer the individual; and

• A hospital must not transfer an individual with an emergency medical condition that has not been stabilized unless several conditions are met that includes effecting an appropriate transfer.

Emphasis mine to highlight some issues.

In my view, EMTALA reflects the way that most people expect an emergency department to function. If you go to an emergency department, they will check to see if you have an emergency and, if so, will treat you until you no longer have an emergency. The outrage that follows every "patient dumping" story supports this view; it's also no small matter that the winning Presidential candidate explicitly endorsed medical care as a "right." (EMTALA implicitly creates a "right" to emergency medical screening and stabilizing at Medicare-recipient hospitals by permitting patients to sue if they are denied that "right.")

I'm not surprised that emergency physicians dislike a law that requires they spend their time (and hospital resources) screening and stabilizing individuals who often can't or won't pay, at least not pay enough, particularly as emergency departments increasingly become the de facto primary care physicians for millions of Americans. It gives them the burden of being a first-responder without the benefit of stable salaries and guaranteed government funding.

What surprised me was the anathema was directed at the concept of EMTALA rather than the execution, even as the physicians spoke of wanting to ensure access to healthcare for all.

Just as most people expect the ED to check them out when they have a problem, most people expect that the ED will be funded in some reasonable fashion. If you have private insurance, your insurance will be billed. If you are on Medicare, Medicare will cover. If you are impoverished, Medicaid will cover, even for undocumented aliens.

But that's not how it works in the real world. There's a reason that an industry like "professional coding" -- not even middlemen, but people who input data for use by middlemen! -- exists. Health insurance companies routinely deny reasonable care already performed. Medicare reimbursements are low and difficult to process, and Medicaid is worse than Medicare and not even fully funded in the first place.

Some suggestions for reforming the economics behind emergency medicine make sense, like this one from the American College of Emergency Physicians:

Some health insurance plans deny claims for legitimate emergency departments visits, based on a patient's final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). Some also attempt to require preauthorization before a patient can seek emergency medical care, resulting in denied payment. These managed care practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America's health care safety.

ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient's presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.

 But for every specific, reasonable proposal like that, you get a complaint like this (also from ACEP):

According to a May 2003 American Medical Association (AMA) study, emergency physicians annually incur, on average, $138,300 of EMTALA-related bad debt. Approximately 95.2% of emergency physicians provide some EMTALA mandated care in a typical week and more than one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week.

Sounds bad, but those figures are useless since they're a mish-mash of several distinct problems.

What does "EMTALA-related" mean? A prior paper of ACEP's defined "uncompensated care" and "bad debt" as any care where the physician or hospital collected less than they billed, which means every denied private insurance claim, every denied Medicare claim, and every denied Medicaid claim in addition to the totally unreimbursed care most people assume is meant by "EMTALA-related."

Which means the "EMTALA-related" figure above conflates every single billing issue affecting emergency departments into "EMTALA-related bad debt," even where most of it has nothing to do with EMTALA.

Combine that with self-congratulatory, self-contradictory praise like "Emergency physicians are proud to serve as an essential part of the nation's health care safety net, open 24/7, caring for everyone, regardless of ability to pay or insurance status," and you have to wonder if anything's actually wrong with the system if they "proudly" follow EMTALA's dictates yet blatantly manipulate numbers to oppose EMTALA itself.

That's what I wanted to describe to WhiteCoat when he again raised the specter of EMTALA as the cause of several ED stories, including the closing of the ED at Northeastern Hospital here in Philadelphia. I posted a comment.

He took it to heart.

I don't agree with his conclusions (no surprise), and a discussion on the merits is best left until later, but it's gratifying to see that I could offer him and his readers a different perspective, just as they've offered me.

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At US News & World Report (via Slashdot):

If Abraham Lincoln were alive today, he would fight just as hard to keep his BlackBerry as President Barack Obama did.

Despite his popular image as a log-splitting bumpkin and small-time country lawyer, Lincoln had an avid interest in cutting-edge technology. As an attorney, he represented railroads. During the Civil War, he haunted the telegraph office (which provided the instant-messaging of its day) for the latest news from the front and was actively involved in directing troops. He encouraged weapons development and even tested some new rifles himself on the White House lawn. He is the only U.S. president to hold a patent (No. 6469, granted May 22, 1849). It was for a device to lift riverboats over shoals. Jason Emerson, author of Lincoln the Inventor, notes that the 16th president was a product of an American age of innovation, invention and expansion, was intensely inquisitive, and possessed a mechanical mind and a need to know how things work. "He never came across a machine or invention or scientific idea that he did not stop to investigate, both physically and mentally," Emerson says. "He not only created his own invention but had ideas for other inventions, such as an agricultural steam plow and a naval steam ram, [and] was fascinated by patent cases as an attorney and also by new innovations during the Civil War."

At Daniel Little's Understanding Society (via Economist's View):

It is interesting to observe how Europe's greatest revolutionary, Karl Marx (1818-1883), thought about China's greatest revolution in the nineteenth century, the Taiping Rebellion (1850-1864). We might imagine that this relentless advocate for underclass interests might have cheered for the poor peasants of the Taiping Heavenly Army. But this was not the case. Marx wrote about the Taiping Rebellion several times in the New York Daily Tribune and other newspapers, and his analysis and his sympathies are fascinating. His articles are as close to blog postings as one could get in the middle of the nineteenth century; they are topical, opinionated, and pretty revealing about his underlying assumptions.

The Taiping rebellion was enormous in every way: perhaps 20 million deaths, armies approaching a million soldiers, sustained Taiping control of large swatches of Chinese territory and cities, and an extended time duration of fighting (about fifteen years). The American civil war took place during roughly the same time period; and the Taiping rebellion was many times more destructive. It is a truly fascinating period of world history, and one that had important consequences in the twentieth century. (Mao and the Chinese Communists largely represented the Taiping rebellion as a proto-communist uprising.) So how did Marx respond to this social catastrophe? In a thumbnail -- his observations show a remarkable blindness to a contemporary historical event that seems tailor-made for the framework of his own theories of history and underclass politics.

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Via KevinMD, Atul Gawande has a lengthy and thoughtful article entitled "Getting There From Here:"

In 2007, fifty-seven million Americans had difficulty paying their medical bills, up fourteen million from 2003. On average, they had two thousand dollars in medical debt and had been contacted by a collection agency at least once. Because, in part, of underpayment, half of American hospitals operated at a loss in 2007. Today, large numbers of employers are limiting or dropping insurance coverage in order to stay afloat, or simply going under—even hospitals themselves.

Unfortunately, Gawande spoils an impressive history of other Western countries' experiences with annoying hyperbole like:

On the left, then, single-payer enthusiasts argue that the only coherent solution is to end private health insurance and replace it with a national insurance program. And, on the right, the free marketeers argue that the only coherent solution is to end public insurance and employer-controlled health benefits so that we can all buy our own coverage and put market forces to work.Neither side can stand the other. But both reserve special contempt for the pragmatists, who would build around the mess we have. The country has this one chance, the idealist maintains, to sweep away our inhumane, wasteful patchwork system and replace it with something new and more rational. So we should prepare for a bold overhaul, just as every other Western democracy has. True reform requires transformation at a stroke. But is this really the way it has occurred in other countries? The answer is no.

And sweeping generalizations like:

There’s a similar explanation for our employment-based health-care system. Like Switzerland, America made it through the war without damage to its domestic infrastructure. Unlike Switzerland, we sent much of our workforce abroad to fight. This led the Roosevelt Administration to impose national wage controls to prevent inflationary increases in labor costs. Employers who wanted to compete for workers could, however, offer commercial health insurance. That spurred our distinctive reliance on private insurance obtained through one’s place of employment—a source of troubles (for employers and the unemployed alike) that we’ve struggled with for six decades.

The rise of employer-offered health insurance wasn't the organic marketplace development Gawande suggests. It was a deliberate decision by the major industries after WWII designed to thwart calls for government-sponsored health care for all, lead by union leaders like UAW President Walter Reuther. 

It's hard to feel sorry for the major industries, the large employers and the hospitals when it comes to the downside of our employer-based health insurance system: they've fought comprehensive reform for decades, often out of a vague fear that a larger role for the government would lead us on a slippery slope towards communism and/or socialism (Ronald Reagan made a good buck back in the 1950s peddling that exact argument).

Either way, Gawande sees the likely path forward, even if he wrongfully claims that neither "left" nor "right" ever had his brilliant insight:

It won’t necessarily be clear what the final system will look like. Maybe employers will continue to slough off benefits, and that lifeboat will grow to become the entire system. Or maybe employers will decide to strengthen their benefits programs to attract employees, and American health care will emerge as a mixture of the new and the old. We could have Medicare for retirees, the V.A. for veterans, employer-organized insurance for some workers, federally organized insurance for others. The system will undoubtedly be messier than anything an idealist would devise. But the results would almost certainly be better.

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This, my friends, is the meaning of excellence:

Planes can float, but the US Airways Airbus A-320 that crashed into the Hudson River Thursday had a better chance than most.

That's because it was equipped with a special device unique to Airbus planes that increased the likelihood it would stay on top of the water.

The device, called a "ditching switch," effectively seals the plane by closing valves and ventilation ports, a spokesman for the airline said.

Industry experts said the ditching switch is rarely invoked, as "it's not as if anyone expects to ditch these planes," said Robert W. Mann, who owns a Port Washington-based aviation consulting company.

Such a device makes a difference to pilots with backgrounds and training like this:

You may have heard that in addition to being a demonstrably impressive pilot, Capt. Chesley Sullenberger, the man piloting the plane yesterday, has a resume that makes him a legitimate air safety expert. (Talk about good luck matching the bad luck of a double bird strike!) He even played some part in developing the Crew Resource Management training for his airline that most experts say has played a real part in the improvement in commercial air safety over the last decade and one half. And he's worked a number of NTSB crash investigations. (CRM, in very broad terms, is a leadership and collaboration training program that helps pilots and co-pilots make the right decisions in the seconds or minutes that make the difference between close calls and catastrophes.)

So that they can make critical decisions like this:

1 - Many ditchings are more last minute than this one, and consequently much rougher. Sullenburger had the presence of mind to plan to ditch early, as soon as he realized that making it to Teterboro would be a stretch (remember that you only get one chance to make a "dead stick" landing, and Teterboro is surrounded by buildings). This early decision was HUGE.

2 - The Hudson, yesterday at 4:00 PM, was about as good a ditching spot as you could get (except for being cold). It was flat calm, and it's long, wide, and straight, which makes it much easier to bring the plane down gently, which is the only way to have a chance at not tearing the plane apart on impact (the reason that smaller planes ditch successfully more often is that they fly much slower - the A320 is about to stall when the plane I fly is approaching its top speed).

Think about that for a moment: the pilot deliberately chose to land on the water, the exact sort of calculated risk that is made or lost based on training, experience, and judgment, and which must be informed by such crucial details as, "does this plane have a ditching switch?"

Finally,

3 - As you know, it's also surrounded by docks and rich with rescue craft and ferries, and their prompt arrival at the crash site was also essential to saving everyone.

The last part is important. All of Airbus' and Shellenberger's work could have been for naught but for the prompt assistance from the flight attendants, air traffic controllers, ferry pilots, cops and firefighters -- all of whom are unionized, unions which provide safety training and lobby for better training and equipment -- to get them out of the water as quickly and safely as possible.

A model for all of us to follow.

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Tech guru Tim O'Reilly has a great new post: Work on Stuff that Matters: First Principles.

I spent a lot of last year urging people to work on stuff that matters. This led to many questions about what that "stuff" might be.

There are a number of half-unconscious litmus tests I use in my own life. I'm going to try to tease them out here, and hope that you can help me think this through in the comments.

Work on something that matters to you more than money.

It's easy to get caught up in the heady buzz of making money. You should regard money as fuel for what you really want to do, not as a goal in and of itself. Money is like gas in the car -- you need to pay attention or you'll end up on the side of the road -- but a well-lived life is not a tour of gas stations! Whatever you do, think about what you really value.

Create more value than you capture.

It's a matter of balance. Every business needs to pay attention to its bottom line; every individual needs to put a roof over his or her head and provide food for loved ones. But take a look inside: how much are you thinking about yourself and what you might gain, versus what you might create?

Take the long view.

It's very easy to make local optimizations, but they eventually catch up with you. Our economy has many elements of a ponzi scheme. We borrow from other countries to finance our consumption, we borrow from our children by saddling them with debt and using up non-renewable resources.

It's hard to see beyond the "small here" and the "short now," especially if you live in a favored place and time. That's why so many of the really important things do end up on the plates of non-profits.

That's why a time like this, when the bubble is bursting, is a great time to see how important it is to think about the big picture, and what matters not just to us, but to building a sustainable economy in a sustainable world.

 

I made liberal edits. The whole post is worth the time to read.

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It's Sunday and I'm preparing for an arbitration (as the American Arbitration Association calls it, a "Large, Complex Commercial Dispute") which gets underway tomorrow.

Hopefully your day will be a little more relaxed. Get those neurons going with some reading not related to your job:

• Beatles Unknown "A Hard Day's Night" Chord Mystery Solved Using Fourier Transform
• The Edge Annual Question -- 2009; Dozens of Top Scientists Answer, "What Will Change Everything?"
• e: the Unnatural Natural Number
• Let Them Eat Steak -- Philadelphia Magazine's Top Steakhouses
• The Worst Photograph Ever Made
• Thelonious Monk's Advice
• One Hacker's Audacious Plan to Rule the Black Market in Stolen Credit Cards
• A Year In Shipping - A 2008 gCaptain Roundup

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In the New York Times:

Some years ago, the evolutionist and atheist Richard Dawkins pointed out to me that Sir Isaac Newton, the founder of modern physics and mathematics, and arguably the greatest scientist of all time, was born on Christmas Day, and that therefore Newton’s Birthday could be an alternative, if somewhat nerdy, excuse for a winter holiday.

Think of the merchandise! Newton is said to have discovered the phenomenon of gravity by watching apples fall in an orchard. (His insight came after pondering why they always fall down, rather than upwards or sideways.) Newton’s Birthday cards could feature the great man discovering gravity by watching a Christmas decoration fall from a tree. (This is a little anachronistic — Christmas trees didn’t come to England until later — but I don’t think we should let that get in the way.)

All very jolly — but then, ’tis the season. Yet things are not so simple. It turns out that the date of Newton’s birthday is a little contentious. Newton was born in England on Christmas Day 1642 according to the Julian calendar — the calendar in use in England at the time. But by the 1640s, much of the rest of Europe was using the Gregorian calendar (the one in general use today); according to this calendar, Newton was born on Jan. 4, 1643.

Rather than bickering about whether Dec. 25 or Jan. 4 is the better date to observe Newton’s Birthday, I think we should embrace the discrepancy and have an extended festival. After all, the festival of Christmas properly continues for a further 12 days, until the feast of the Epiphany on Jan. 6. So the festival of Newton could begin on Christmas Day and then continue for an extra 10 days, representing the interval between the calendars.

A splendid idea, I can see no reasonable objection to taking off December 25 through January 6. In terms of gross domestic product, it's what happens anyway.

While on the subject: Isaac Newton was born severely premature, so small that he fit into a quart mug. He was not expected to live.

If you're aware of any holidays other than Newtonmas being celebrated today, please, go and enjoy them.

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Amazing:

Marc S. Dreier knew the 45th-floor conference room of Solow Realty well. He had been in it many times as a trusted lawyer for the company’s founder.

So nothing seemed amiss when he showed up one afternoon in October and told a receptionist he had a meeting with her boss, people associated with Solow say.

Mr. Dreier was elegantly dressed, as always, the people said. He had three people with him. The receptionist ushered the group past her desk. They were sitting there, visible inside the glass-walled room, a few minutes later when the boss, Steven M. Cherniak, happened to walk by.

Mr. Cherniak would later tell people at the company how surprised he had been to see Mr. Dreier. He had not scheduled any meeting with him, and he had no idea what Mr. Dreier was up to.

But people there gave little thought to Mr. Dreier’s odd visit until November, when the company’s founder, Sheldon H. Solow, received a disturbing call. The caller wanted to let Mr. Solow know that Mr. Dreier had offered him the chance to buy promissory notes that had been issued by the company, people associated with the firm said.

...

Dec. 2, Mr. Dreier flew to Canada by private jet and tried to hold a meeting there very much like the unauthorized gathering he is said to have held in Solow’s Midtown Manhattan offices, the authorities say.

In the offices of the Ontario Teachers’ Pension Plan, the authorities say, he tried to pass himself off as a lawyer for the plan and close the sale of an additional $33 million in fraudulent promissory notes supposedly backed by the plan.

A receptionist there caught on, the authorities said, and called the police, who arrested him.

In the world of computer security, that's known as social engineering. Hackers have recognized for a long time that it is far easier to trick someone into giving up their password than to "hack" it via wizardry.

Dreier was apparently so good at it that even where detected by the boss no one questioned what he was up to until they got an explicit warning of fraud.

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Some links to get your neurons going over the next week:

• A former producer reveals the secrets of talk radio.
• I Can Has Cheezburger... and pathos? : Salon writer Jay Dixit discusses the link between LOLCats and the human condition.
• A particularly crazy dog vs. cat "fight"
• Woman reaches US army's top rank -- "And you know what they say, behind every successful woman there's an astonished man."
• New Scientist kicks off it's science fiction special by asking "Is science fiction dying?"

And finally, in 1936 Buckminster Fuller explained Einstein's theory of relativity in a telegram:

EINSTEIN'S FORMULA DETERMINATION INDIVIDUAL SPECIFICS RELATIVITY READS QUOTE ENERGY EQUALS MASS TIMES THE SPEED OF LIGHT SQUARED UNQUOTE SPEED OF LIGHT IDENTICAL SPEED ALL RADIATION COSMIC GAMMA X ULTRA VIOLET INFRA RED RAYS ETCETERA ONE HUNDRED EIGHTY SIX THOUSAND MILES PER SECOND WHICH SQUARED IS TOP OR PERFECT SPEED GIVING SCIENCE A FINITE VALUE FOR BASIC FACTOR IN MOTION UNIVERSE STOP SPEED OF RADIANT ENERGY BEING DIRECTIONAL OUTWARD ALL DIRECTIONS EXPANDING WAVE SURFACE DIAMETRIC POLAR SPEED AWAY FROM SELF IS TWICE SPEED IN ONE DIRECTION AND SPEED OF VOLUME INCREASE IS SQUARE OF SPEED IN ONE DIRECTION APPROXIMATELY THIRTY FIVE BILLION VOLUMETRIC MILES PER SECOND STOP FORMULA IS WRITTEN QUOTE LETTER E FOLLOWED CLOSELY BY EQUATION MARK FOLLOWED BY LETTER M FOLLOWED BY LETTER C FOLLOWED CLOSELY BY ELEVATED SMALL FIGURE TWO SYMBOL OF SQUARING UNQUOTE ONLY VARIABLE IN FORMULA IS SPECIFIC MASS SPEED IS A UNIT OF RATE WHICH IS AN INTEGRATED RATIO OF BOTH TIME AND SPACE AND NO GREATER RATE OF SPEED THAN THAT PROVIDED BY ITS CAUSE WHICH IS PURE ENERGY LATENT OR RADIANT IS ATTAINABLE STOP THE FORMULA THEREFORE PROVIDES A UNIT AND A RATE OF PERFECTION TO WHICH THE RELATIVE IMPERFECTION OF INEFFICIENCY OF ENERGY RELEASE IN RADIANT OR CONFINED DIRECTION OF ALL TEMPORAL SPACE PHENOMENA MAY BE COMPARED BY ACTUAL CALCULATION STOP SIGNIFICANCE STOP SPECIFIC QUALITY OF ANIMATES IS CONTROL WILLFUL OR OTHERWISE OF RATE AND DIRECTION ENERGY RELEASE AND APPLICATION NOT ONLY OF SELF MECHANISM BUT OF FROM SELF MACHINE DIVIDED MECHANISMS AND RELATIVITY OF ALL ANIMATES AND INANIMATES IS POTENTIAL OF ESTABLISHMENT THROUGH EINSTEIN FORMULA

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Since politics are about more than just tax cuts and foreign policy: 

There’s no way around it: the Obama administration will need to address food issues head-on.

Last month, Michael Pollan published a sweeping letter to the next president, Farmer in Chief, in the New York Times. After Pollan’s article was published, the American Farmland Trust noted that “there is no topic of greater importance than the issues [Pollan] raises…it is time to elevate these issues to their rightful place on our national agenda.”

Turns out Obama might agree; Obama read Pollan’s article and even worked it into discussions of energy policy.

So what might we expect from an Obama administration when it comes to food policy? Maybe quite a bit. In his plan for rural America, he lays out a number of policy positions that are a departure from the status quo. Obama:

• Supports subsidies as a safety net, but calls for a $250,000 payment limitation and closing of loopholes, so that the program supports family farmers, not corporate agribusiness.

• Supports regulation of CAFOs (factory livestock operations).

• Wants to enforce anti-trust laws that so that smaller farmers can compete against large-scale meatpackers.

• Wants to cap the size of agricultural businesses that can receive government funds for environmental cleanup so that taxpayers don’t subsidize cleanup for large, polluting corporations.

• Supports Country of Origin Labeling (COOL) for meat, a critical issue as we learn how widespread melamine contamination of animal feed is in countries like China.

• Wants to increase support for organic agriculture and local food systems by helping farmers with organic certification/compliance costs.

• Wants to provide incentives to encourage and support new farmers, land conservation, renewable energy on the farm, and microenterprise for farmers and other rural Americans.

• Calls for greater food safety surveillance and communications.

• Plans to encourage local foods in schools.

• Supports providing farmers with incentives that will prevent agricultural runoff.

 

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How would you think about something if you had minimal data and a handful of rules?

The late Carl Sagan once asked this question, “What does it mean for a civilization to be a million years old? We have had radio telescopes and spaceships for a few decades; our technical civilization is a few hundred years old… an advanced civilization millions of years old is as much beyond us as we are beyond a bush baby or a macaque.”

Although any conjecture about such advanced civilizations is a matter of sheer speculation, one can still use the laws of physics to place upper and lower limits on these civilizations. In particular, now that the laws of quantum field theory, general relativity, thermodynamics, etc. are fairly well-established, physics can impose broad physical bounds which constrain the parameters of these civilizations.

This question is no longer a matter of idle speculation. Soon, humanity may face an existential shock as the current list of a dozen Jupiter-sized extra-solar planets swells to hundreds of earth-sized planets, almost identical twins of our celestial homeland. This may usher in a new era in our relationship with the universe: we will never see the night sky in the same way ever again, realizing that scientists may eventually compile an encyclopedia identifying the precise co-ordinates of perhaps hundreds of earth-like planets.

Interesting conclusions follow. My favorite part:

Because distances between stars are so vast, and the number of unsuitable, lifeless solar systems so large, a Type III civilization would be faced with the next question: what is the mathematically most efficient way of exploring the hundreds of billions of stars in the galaxy?

In science fiction, the search for inhabitable worlds has been immortalized on TV by heroic captains boldly commanding a lone star ship, or as the murderous Borg, a Type III civilization which absorbs lower Type II civilization (such as the Federation). However, the most mathematically efficient method to explore space is far less glamorous: to send fleets of “Von Neumann probes” throughout the galaxy (named after John Von Neumann, who established the mathematical laws of self-replicating systems).

A Von Neumann probe is a robot designed to reach distant star systems and create factories which will reproduce copies themselves by the thousands. A dead moon rather than a planet makes the ideal destination for Von Neumann probes, since they can easily land and take off from these moons, and also because these moons have no erosion. These probes would live off the land, using naturally occurring deposits of iron, nickel, etc. to create the raw ingredients to build a robot factory. They would create thousands of copies of themselves, which would then scatter and search for other star systems.

Similar to a virus colonizing a body many times its size, eventually there would be a sphere of trillions of Von Neumann probes expanding in all directions, increasing at a fraction of the speed of light. In this fashion, even a galaxy 100,000 light years across may be completely analyzed within, say, a half million years.

If a Von Neumann probe only finds evidence of primitive life (such as an unstable, savage Type 0 civilization) they might simply lie dormant on the moon, silently waiting for the Type 0 civilization to evolve into a stable Type I civilization. After waiting quietly for several millennia, they may be activated when the emerging Type I civilization is advanced enough to set up a lunar colony. Physicist Paul Davies of the University of Adelaide has even raised the possibility of a Von Neumann probe resting on our own moon, left over from a previous visitation in our system aeons ago.

(If this sounds a bit familiar, that’s because it was the basis of the film, 2001. Originally, Stanley Kubrick began the film with a series of scientists explaining how probes like these would be the most efficient method of exploring outer space. Unfortunately, at the last minute, Kubrick cut the opening segment from his film, and these monoliths became almost mystical entities)

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Carolyn Elefant kicks off a discussion on "The Deterioration of Legal Writing," beginning with a Financial Week story, concluding:

While I believe that both factors -- the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is  the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.  At the end of the day, with so many resources available, legal analysis is suffering, and as a result, so too is the quality of legal writing, which relies on the quality of the underlying analysis for its impact and effectiveness. 

Evan Schaeffer chimes in with links to many of his great legal writing posts.

I had two "legal writing" classes in law school. Both were terrible; I encountered one teacher later who said she was glad to have moved back to consulting because it was "more funner" than teaching.

I'm not kidding.

Two points.

First, I challenge the notion that today's law students write any worse than their predecessors. It may be true, but I have seen no objective evidence of that. Complaints about writing ability are common for all employers, and complaints about the upcoming generation are as old as written history. Take this complaint:

On the matter of overwork they are particularly stern. They want to work hard, but not too hard; the good, equable life is paramount and they see no conflict between enjoying it and getting ahead. The usual top executive, they believe, works much too hard, and there are few subjects upon which they will discourse more emphatically than the folly of elders who have a single-minded devotion to work. Is it, they ask, really necessary any more? Or, for that matter, moral?

....Out of necessity, then, as well as natural desire, the wise young man is going to enjoy himself — plenty of time with the kids, some good hobbies, and later on he'll certainly go for more reading and music and stuff like that. He will, in sum, be the apotheosis of the well-rounded man: obtrusive in no particular, excessive in no zeal.

That's from 1956; Kevin Drum dug it up in response to an article just posted that was virtually identical.

Second, while great legal writing requires a career-long dedication to excellence, not-bad legal writing just requires keeping in mind a couple points:

1. There may be rules for the formatting of legal arguments, but there are no rules for the content — do not force the content of your writing into an artificial form.
    
2. Remember and use the twenty-odd years of writing education that preceded law school. Write sentences in which nouns perform specific actions upon direct objects. Use topic headings and thesis sentences and appropriate paragraph divisions. Present information in a logical form. Read what you wrote aloud; does it sound confusing? If so, then it's confusing to read, too.
    
3. The very worst examples of legal writing are the edits of cases in law school textbooks. Judges usually do not write opinions with frequent leaps in logic, sentence fragments, and the generous use of the ellipsis.
    
4. The second worst examples of legal writing are Supreme Court opinions, which are the product of a delicate compromise amongst multiple Justices and which are deliberately limited in scope so as not to exceed the actual holding.
    
5. The third worst examples of legal writing are law review articles, which must conform to multiple literary conventions that have nothing to do with ease-of-reading or persuasion.
    
6. The best examples of legal writing that are easily accessible are trial court and intermediate appellate court opinions. These opinion state facts and then apply them to law, with little interference (at least apparent on the face of the opinion) from politics or compromise or convention.

In short, writing not-bad requires reading a few short books on writing, like Strunk & White's Elements of Style and Joseph M. Williams' Style, then reviewing some basic court opinions, and then applying the same principles to your own work.

Finally, never be afraid to disregard your writing instructor's advice; odds are they're looking to move on to something "more funner" anyway.

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Good mornin'.

Too busy with legal work (some holiday!) to take my brain away from it, so here's some non-legal goodies to fire up your neurons:

• Paul Krugman wins the Nobel
  
• 15 Noteworthy Nobel Prize Nuggets
• Fox "documentary" claims Obama "trained to overthrow the government;" doesn't identify source as an avowed antisemite once described by the Eleventh Circuit Court of Appeals as a "notoriously vexatious and vindictive litigator who has long abused the American legal system."
• "How Screwed Are We in Afghanistan? Discuss."
• Jay Walkers' redonkulous personal library
• 5 Hidden Gems on the World Wide Web
• 5 Presidential Elections Even Dumber Than This One (Somehow)

The last one is worth the crude language.

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Now he drives a car shuttle, notwithstanding his reflecting the best of scientific progress:

Twenty years ago, Douglas Prasher was one of the driving forces behind research that earned a Nobel Prize in chemistry this week. But today, he's just driving.

Prasher, 57, works as a courtesy shuttle operator at a Huntsville, Ala., Toyota dealership. While his former colleagues will fly to Stockholm in December to accept the Nobel Prize and a $1.4 million check, the former Woods Hole Oceanographic Institution scientist will be earning $10 an hour while trying to put two of his children through college.

...

After the American Cancer Society gave Prasher a $220,000 grant in 1988, he set about isolating and copying the GFP gene.

That caught the attention of Martin Chalfie, another of the Nobel Prize winners announced this week. The Columbia University researcher said yesterday that the organism he was working with at the time was transparent, and he hoped Prasher's work on the luminescent jellyfish protein would provide a way for him to see its molecular functions.

Four years later, as Prasher's grant dried up and he was no longer able to continue his own research, he voluntarily gave samples of the GFP gene to Chalfie.

...

"(Prasher's) work was critical and essential for the work we did in our lab," Chalfie said. "They could've easily given the prize to Douglas and the other two and left me out."

 

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At Mental Floss, here's one of them:

The Lorax. In case you haven’t read The Lorax, it’s widely recognized as Dr. Seuss’ take on environmentalism and how humans are destroying nature. The logging industry was so upset about the book that some groups within the industry sponsored The Truax, a similar book but from the logging point of view. Another interesting fact: the book used to contain the line, “I hear things are just as bad up in Lake Erie,” but 14 years after the book was published, the Ohio Sea Grant Program wrote to Seuss and told him how much the conditions had improved and implored him to take the line out. Dr. Seuss agreed and said that it wouldn’t be in future editions.

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Nothing special about it being "ivy league," but a good list of basic online courses is available here.

A number of universities now have substantial online offerings, like Yale and MIT. Worth checking out at some point, perhaps if you're not a lawyer or, if you are, after you retire.

Yale's currently highlighting a class ("Death") by Shelly Kagan, whose lectures are both infectiously entertaining and maddeningly circular.

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Or rather, just went live.

Here's Wikipedia.

A TED Talk on it. Seed Magazine discussing with top physicists.

And New Scientist on the best and worst 5 things that could happen.

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Some fascinating stuff that's rolled across my desktop lately...

• They Might Be Giants' children's music picks
• Visualizing four dimensions
• How an amateur solved the Cryptonomicon mystery
• Using Causality [self-organizing systems] to Solve the Puzzle of Quantum Spacetime
• Great Diagrams in Anthropology, Linguistics, and Social Theory
• Utilizing antibodies from survivors of the 1918 flu pandemic to combat avian flu today
• Finally, a digital camera with comparable quality to film (for a tiny fraction of the price)

Put your thinking caps on and dive in.

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Justice Scalia doesn't think so:

I do not believe that legal writing exists. That is to say, I do not believe it exists as a separate genre of writing. Rather, I think legal writing belongs to that large, undifferentiated, unglamorous category of writing known as nonfiction prose. Someone who is a good legal writer would, but for the need to master a different substantive subject, be an equivalently good writer of history, economics or, indeed, theology.

(caught by the (new) legal writer).

Interesting position, since the man recently released a book on persuading judges. Here's part of the book's description:

Making Your Case: The Art of Persuading Judges is a guide for novice and experienced litigators alike. It covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief-writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument.

Do the essentials of sound legal reasoning apply equally well to history, economics and theology? Should a historical argument -- an argument that a particular set of facts existed  -- revolve around a syllogism the same way a legal argument -- an argument in favor of applying particular philosophical and logical principles -- usually must?

Some principles of nonfiction writing are universal, like brevity, rhythm, and structure, but to say the principles of good legal arguments are equally applicable to other (particularly non-adversarial) disciplines is a gross overgeneralization. Even Socrates felt uncomfortable using his lifetime of philosophy and logic to make a legal argument:

And I must beg of you to grant me one favor, which is this—if you hear me using the same words in my defence which I have been in the habit of using, and which most of you may have heard in the agora, and at the tables of the money-changers, or anywhere else, I would ask you not to be surprised at this, and not to interrupt me. For I am more than seventy years of age, and this is the first time that I have ever appeared in a court of law, and I am quite a stranger to the ways of the place; and therefore I would have you regard me as if I were really a stranger, whom you would excuse if he spoke in his native tongue, and after the fashion of his country: that I think is not an unfair request. Never mind the manner, which may or may not be good; but think only of the justice of my cause, and give heed to that: let the judge decide justly and the speaker speak truly.

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At Crooked Timber:

“The absence of war between major established democracies is as close to anything we know to a simple empirical regularity in relations between peoples.”

John Rawls, The Law of Peoples, pp. 52—3.

Well, obviously it depends on how much you pack into “major” and “established”, but, since both Russia and Georgia rate as 7, “fully democratic” on the Polity index, there’s at least some case for saying that there’s just been an exception to that lawlike generalization.[fn1]

...

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In the NYTimes another complaint about the internet eating brains:

As teenagers' scores on standardized reading tests have declined or stagnated, some argue that the hours spent prowling the Internet are the enemy of reading — diminishing literacy, wrecking attention spans and destroying a precious common culture that exists only through the reading of books.

Kevin Drum at The Washington Monthly responds:

... the fact remains that an awful lot of longish nonfiction writing is needlessly overwritten, and this isn't something that struck me quite so forcefully before I started blogging. But now, for better or worse, it has. I'm much more sensitive to — and much less tolerant of — padded writing.

So my point is this: if even I, hailing from an earlier generation, feel this way, I can only imagine how teenagers raised on the internet feel. Sure, part of the story may be that their attention spans have become dangerously short, but another part of the story may be that they aren't willing to slog through multiple pages of irrelevant muck waiting for the author to finally get to the point. It's not either/or.

I wrote about this subject earlier, back when The Atlantic Monthly was complaining. I wrote:

Fact is, for ages prolific readers have taught themselves how to quickly peruse useful information from nonfiction. I emphasize "peruse" because the word did not originally mean "to skim," it meant "to use thoroughly." The "inverted pyramid" of news reporting, beginning with the most important information first and slowly working in details as the story progresses, wasn't born with the internet.

Nonfiction, which comprises the bulk of the Internet (news, weblogs, reference, guides, directories) should not be any harder to digest than the subject matter itself -- the whole point of nonfiction writing is to convey information as simply as possible. If you spend a substantial amount of time reading qua reading, you should either practice your reading technique more or find better material to read.

It should be clearly I agree with Kevin whole-heartedly, and also consider many "books" to be a "scourge" upon the modern mind. The book form doesn't automatically guarantee quality, it guarantees length and price, often to the detriment of quality. Here are some examples:

• quasi-journalism books that "recreate" dialogue based on the author's supposition (like Bob Woodward's recent fare);
• expanded doctoral theses made into book form by little more than chapter headings (a style that's a plague upon the academic non-fiction world);
• self-help "books" that could easily have been pamphlet or blogs (even the folks at Lifehacker couldn't pull that off in a way that didn't seem stale);

I completely understand the inclination non-traditional authors have to convert their work into book form. It's prestigious and it pays.

But let's not pretend that it's better for people to read 300 printed pages from one author, at least half of which is filler, rather than 10 online pages from 30 different authors. It's usually worse.

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Bad Astronomy says the answer may surprise you.

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Most attorneys I know keep a "legal research" file. As they have continued on their careers, they have come across numerous issues that took a considerable amount of time to research. After spending that time, in hopes of increasing productivity, the attorneys then dump the core parts of the research into a really long Microsoft Word file (or a really large folder or finder).

I don't. Why? Because of the Brontosaurus.

There is no such dinosaur as a Brontosaurus. The term arose from a mistaken identification of fossils in 1877, later generally corrected among paleontologists in 1903. The "Brontosaurus" was an apatosaurus skeleton that a paleontologist mistakenly associated with a camarasaurus skull.

Surely everyone knows this old, obvious, easily-confirmed fact? WIRED is a tech-savvy, research-friendly magazine. In April 2006, it published "Bringing back the Brontosaurus," an article about reconstructing animals via their genes, without bothering to note the distinction.

Why? Most likely because the author learned it as a "brontosaurus," as did his colleagues. A simple Google search would have revealed the error.

And that's why I don't keep a legal research file: it'll have something wrong with it. Maybe you put it in wrong, maybe you took it out of context, maybe the cases have been overturned, or maybe you messed up the first time around, too. I've always lost more time relying on a "research" file than I've gained.

Moreover, some of my best arguments come from reading recent court opinions, watching as a court grapples with an issue either similar or analogous to my own. The law is your tool - why let it go dull?

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A little blog debate brought about by this trenchant observation:

The last couple of years have seen my friends begin to start their honest-to-goodness careers, as opposed to jobs that were by design short-term. I'd say that among people I would call friends, a good two dozen have gotten long-term/serious jobs in the last couple years. And here's the thing: literally none of them got there jobs without some sort of "in", a personal connection that got them the job.

The second to last link up there, at Uncertain Principles, compares academia to media industries, in which there are simply too few positions for everyone at the bottom to eventually rise to the top (which is basically true everywhere).

Let me add what I think is the worst part about the academic job market: if you don't succeed, there is virtually no way to transfer your skills directly.

Take a lawyer. One path, the path strongly encouraged at prestigious law schools, involves working your way up the ranks of a large corporate firm, eventually becoming partner and making loads of money working for big businesses. Make one mistake, like bad grades one semester or a poor undergraduate record, and you will usually be barred from that path for ever.

As a lawyer, though, you do not have to care about that. You can join in a small firm and make a good salary working decent galleries. You can go into business for yourself, and earn anywhere between little money and a boatload of money while working anywhere between a few hours a week and as if you were actually out on a boat in rough seas. There's a lot of room for variety.

In academia, however, there are no freelance biologists or independent physicists. Unlike someone in the media industry, you can't even hope to have a breakthrough screenplay or acting performance. You are simply out of the loop.

That's not to say there aren't other options for PhDs and the like. There are, but in entirely different fields; there are plenty of PhDs doing career work only vaguely related to their education, work definitely not related to academic pursuits.

I won't pretend to have the solution here but I do think the problem is far more pronounced than generally recognized. It's not that the best and brightest end up choosing law and medicine instead -- trust me, they don't -- it's that many potential superstars in the field languish entirely, captive to their own passion about the subject while also unable to land an appropriate job.

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At Not Exactly Rocket Science:

The latest and most intriguing clue comes from Enrica Audero from the European Molecular Biology Laboratory, working together with European researchers and a special strain of mice. Audero has shown that altering the balance of the signalling molecule serotonin in the brainstems of mice can lead to sudden demise, in a way that resembles the unexpected death of SIDS babies. The mice spontaneously go through "crises" where their basic body functions like temperature control and their heartbeat go haywire.

Audero's work builds on research published by an American group two years ago, which first suggested that SIDS is the result of faults in the way our brains reacts to serotonin. This signalling chemical helps to control the core functions of our body that lie outside the realm of conscious thought. It's the serotonin system that lords over our heartbeats, breathing, sweating and shivering, while our brains are busy processing blogs or solving Su Dokus.

Through a series of post-mortem exams, David Paterson showed that SIDS babies have more serotonin-releasing neurons, but a lower density of serotonin receptors - protein docks that the molecule sticks to. It was a start, and Audero capitalised on it by showing for the first time how an altered serotonin network could actually lead to sudden death. 

...

The results are a bit of a surprise. After all, mice can survive quite happily if they are born without any serotonin neurons at all, even though their behaviour may be different. Audero isn't suggesting that human SIDS babies have extra serotonin receptors; you'll remember from Paterson's study that they actually have a lower density of these. But the results do suggest that an imbalance in serotonin signalling can be life-threatening. Even without any overt outside shock, it's enough to trigger the sort of sudden failure in core body functions that is typical of SIDS. The means may be different in humans, but the ends are the same.

Read the link for more. That may explain how "Back to Sleep" works: on their backs, babies are less likely to encounter suffocation hazards, and thus the "crises" passes without causing any real harm, instead of occuring while the infant is in a dangerous position.

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Building on my prior post about there not really begin any "50-50" cases, the NYTimes interviews a
a physician and molecular biologist who teaches judges about science and genetics:

Q. DO SCIENTISTS AND JUDGES HAVE MUCH IN COMMON?

A. Well, a scientist almost never says anything absolutely. Everything is a theory, to be disproved or adjusted later on. Judges worry a lot about the certainty of conclusions, too. Judges are used to thinking of truth as an elusive concept. A lot of judges, when you bring up “the truth,” they roll their eyes. They say, “I don’t know what to say about truth. I do know about probabilities.”

As I wrote before, "If you can see a wide array of evidence and argument, which it is your sworn duty to evaluate, and yet you remain totally unmoved, then the problem lies with you, not with the inherent unknowability of the world."  I think that is a common ground between science and law, the acceptance that absolute certainty of the rightness of one's result is neither possible nor necessary.

It's worth pondering a bit more. Back in law school, I took a number of classes with an extraordinarily intelligent professor who had, among other academic achievements, previously edited a 14 volume hornbook in a particularly dense, broad and complicated legal field. He was recognized by most of his peers as the smartest professor there, and had devoted more brain power to considering the law as a whole than most anyone on earth.

He was also a cynic, dismayed by the ease with which judges would produce inconsistent arguments and wholly irrational theories of law -- frequently at odds with their own prior opinions -- just to support a particular position in a case before them. So at one point, I asked him, "is anything in the law real, or is all just made up after the fact to justify the decision?"

He answered quickly, "burdens are real. Whatever else is going on, the burdens of production and persuasion tell everyone what they're supposed to do."

Continue Reading...

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Lifehacker.com provides Twitter Users Worth Following.

I don't twitter, but some of those look just intriguing enough... like tinybuddha, which has recently twittered, inter alia:

"Do not seek to follow in the footsteps of the men of old; seek what they sought." ~Basho

"Our greatest glory is not in never falling, but in getting up every time we do." ~Confucius

"I feel the greatest gift we can give to anybody is the gift of our honest self." ~Mr. (Fred) Rogers

"Time you enjoy wasting, was not wasted." -John Lennon

Lovely. Good thing twitter also provides RSS feeds for us non-twitterers.

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At Barista:

But the Indians still didn’t drink it, unless they were closely associated with the Raj. In 1901, the British Tea Association employed a superintendent and two “smart European travellers”, to hawk the stuff to grocers. They sold cheap packets, while the Association organised free tea in government and business offices. But, as Collingham notes with a touch of poignance,

“Nevertheless, marketing tea in India was a dispiriting project. In 1904, it was reported that even after three years of hard work there was little to indicate ‘the existence of a proper tea market in India’, and every year from 1901 to 1914, there were complaints that ‘increasing the consumption of tea in India is undoubtedly the most difficult branch of the work.”‘

Then, in World War One, employers introduced the tea break. In the north, where Muslims were less bothered by caste restrictions, the Association equipped small contractors who supplied tea at railway stations. As it spread, separate stalls catered for Muslim and Hindu patrons.

The Association also set up tea shops, which attracted hawkers who undercut them but spread the habit. It employed its own hawkers, to discourage the use of spiced tea, which used less leaves. Then the Association employed an army of tea demonstrators who spread out across the country to brew tea inside people’s homes, in the manner of vacuum cleaner salesmen. By the 1930’s, the older generation was complaining that their children were rejecting tradition in favour of the new fangled foreign habit.

Emphasis mine. That's certainly one way to make your product accessible and to associate it with positive thoughts and feelings.

So, good lawyers, are you a 'break' in your client's life or a source of continual stress and frustration?

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There's nothing more I could add to this wonderful post about the new GOP slogan at 43(B)log.

Be careful about the ideas and imagery your words convey.

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At Bad Astronomy:

Are we aliens? This question has come up due to a new result from studying meteorites, and is getting a lot of web-chatter. I figure I’d better get on this sooner rather than later!

First, the science. Then the chatter. Finally, the caution flag.

The Science:

Some meteorites have been found to contain some relatively complicated organic compounds, including molecules that are components of amino acids, the building blocks of life. For example, the Murchison meteorite, which fell on Australia in 1969, has been found to contain purines and pyrimidines, which are crucial to a large number of biological molecules like DNA, RNA, and ATP (adenosine triphosophate, a chemical our cells use for fuel).

Now, you have to be careful. A meteorite might have had these molecules in it before it slammed into the Earth, or it may have absorbed them from the ground after impact. One way to tell the difference is to look at isotopes of the elements. An element like carbon usually has 6 protons and 6 neutrons in its nucleus, but an isotope is when the number of neutrons is different. Carbon 13, as an example, has 6 protons and 7 neutrons in the nucleus (the number of protons determines the chemical properties, so carbon 13 is still like carbon, though a tad heavier).

The ratio of isotopes in a sample can be different for objects in space versus on Earth. Various process can change the ratio, so that’s a good way to find out if these molecules are native to a meteorite, or if it was contaminated after it fell.

OK, that’s the primer. Now the good part: scientists studying the Murchison meteorite have determined that the purines and pyrimidines — specifically, uracil and xanthine — have a non-terrestrial origin. In other words, the molecules in this meteorite, so crucial for life, were actually formed in outer space and fell to Earth.

That is very, very cool.

So this means that the some of the basic building blocks of life formed out in space, and came to Earth via meteorites and, presumably, comets.

Note that "some of". That’s important. Because…

Neat!

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Briton hailed as world's greatest fisherman:

A BRITISH angler has been hailed the world's greatest fisherman after spending 18 years travelling 150,000 miles to achieve sport angling's Holy Grail for the first time in history.

Zyg Gregorek, 65, is the first recreational fisherman anywhere to catch all 27 species in the three so-called "royal slams" set by the International Game Fish Association (IGFA) – hooking nine species of shark, including the great white, ten of billfish and eight of tuna.

His journey has taken him to some of the most remote corners of the world: from South Africa to Australia, Mauritius and the Galapagos Islands, and from America, Madeira and Ascension Island to Mozambique.

Mr Gregorek, who caught his first shark, a 40lb blue, off the coast at Padstow in Cornwall, completed his royal slams when he landed a 200lb thresher shark off San Diego – a species he had been trying to catch since 2004.

Rob Kramer, president of Florida-based IGFA, described Mr Gregorek's achievement as "totally unique". He said: "To achieve one royal slam is impressive but to get all three is unheard of. He is the first and maybe the last. These awards are considered the big one – the Holy Grail. They are spectacular – travelling to exotic places and chasing a specific species of fish."

Mr Kramer stressed: "It is not about luck – you have to research, to know exactly where to go and when. Zyg is, by definition, the world's greatest fisherman."

I must admit I'm baffled how billfish have their own "royal slam" yet the IGFA is engaged in an "aggressive campaign to ban the sale and importation of billfish in the United States." Many species of shark and tuna, too, are at critical levels and unlikely to survive the next generation, so I don't know how that factors in, either. Catch and release? Hypocrisy? I honestly don't know.

Regardless, the accomplishment is certainly admirable on a personal level. Of all the virtues that could be ascribed to it, I am most impressed by Gregorek's patience. Unlike, say, the Marathon monks, who can be assured that each step they take brings them closer to their goal, no matter how much research he did, there was no way for Gregorek to know he was accomplishing anything until he actually hauled the fish on deck. I can only imagine the number of times he thoroughly researched a fish and its likely locations then spent weeks endlessly catching the wrong fish. That's patience.

Then again, if the Marathon monks had a bad day, they were supposed to kill themselves swiftly. Poor Gregorek got to watch the sun set at an exotic beach while drinking another piña colada.

Perhaps the secret to patience is to pace yourself.

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I like Amazon: it made books available on a far wider scale than anything since the Carnegie libraries. In case you're not sufficiently geeky, Amazon released it's e-book device, the Kindle (a name I like).

I'm not linking to it, though, because apparently it's downright evil.

Though I would prefer native support for PDFs and the like, and I would prefer not to pay a subscription fee for the same blogs I can read on the Internet, I can see the legitimate business reasons for both, and I hope the free market comes up with new solutions that correct these deficiencies.

The terms of service, however, are not merely "bad" but are in fact "heinous." Amazon will monitor everything you read. Amazon reserves the unilateral right to edit what you have downloaded, without your knowledge or consent, and the unilateral right to revoke your access to it. That is on top of a total restriction on your ability to do anything with the content that you bought except read it directly on the Kindle for whatever fees Amazon chooses to charge, which Amazon may increase at its discretion.

Unacceptable and appalling from a company that has done so much to spread the joy of reading and to unlock the power of the internet.

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Critical Mass, a blog by the national book critics circle board of directors (lowercase was their idea), is currently hosting a weekly series of five books a critic believes reviews should have in their libraries. Up first is J.M. Coetzee:

The Iliad. Sets the standard for the narrative of action.

Aristotle, Poetics. Sets the terms for all later debate on the truth claims of history versus the truth claims of poetry.

Cervantes, Don Quixote. The source-book for all writers of fiction. Reminds us how old most of our bright new ideas are.

Rousseau, Confessions. Reminds us how hard it is to tell the truth.

Dostoevsky, Brothers Karamazov. Reminds us what the novel of ideas can achieve.

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Turns out the appendix may have a function after all:

The function of the appendix seems related to the massive amount of bacteria populating the human digestive system, according to the study in the Journal of Theoretical Biology. There are more bacteria than human cells in the typical body. Most of it is good and helps digest food.

But sometimes the flora of bacteria in the intestines die or are purged. Diseases such as cholera or amoebic dysentery would clear the gut of useful bacteria. The appendix's job is to reboot the digestive system in that case.

The appendix "acts as a good safe house for bacteria," said Duke surgery professor Bill Parker, a study co-author. Its location — just below the normal one-way flow of food and germs in the large intestine in a sort of gut cul-de-sac — helps support the theory, he said.

Also, the worm-shaped organ outgrowth acts like a bacteria factory, cultivating the good germs, Parker said.

That use is not needed in a modern industrialized society, Parker said. If a person's gut flora dies, they can usually repopulate it easily with germs they pick up from other people, he said. But before dense populations in modern times and during epidemics of cholera that affected a whole region, it wasn't as easy to grow back that bacteria and the appendix came in handy.

In less developed countries, where the appendix may be still useful, the rate of appendicitis is lower than in the U.S., other studies have shown, Parker said.

He said the appendix may be another case of an overly hygienic society triggering an overreaction by the body's immune system.

Looks like a good application of Occam's Razor to me. It makes more sense to think that humans have changed their conditions so as not to need the organ as frequently than it makes to think we evolved a distinct yet superfluous organ.

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