I Paint, Therefore I Am

"Elephants win at life" is what James said when he sent me this amazing video of a pachyderm painting a self-portrait. Would that we weren't trying to get them a game over.

The Truly Dismal Science

Behavioral economics.

The Nietzschean War

"I do not want to wage war against what is ugly. I do not want to accuse; I do not even want to accuse those who accuse. Looking away shall be my only negation." -- Nietzsche, The Gay Science (emphasis in original)

Fitting that the creators of the abyss are reluctant to gaze into it.

Bamboozled

Bamboo epitomizes life: It grows, and it persists. It evinces what Werner Herzog, in Grizzly Man, saw in the bears' eyes: "the overwhelming indifference of nature." Just ask Randy Bothwell.

Iwata Asks

Nintendo's president, Satoru Iwata, interviews people involved in making Wii games, such as Super Smash Bros. Brawl.

Steam Wars

These steampunk Star Wars action figures are pretty neat.

Douchebook

The story behind Facebook.

Amsterdam

Anthony Amsterdam is an incredible lawyer who has tirelessly, (com)passionately, and masterfully battled the death penalty for over four decades. He successfully argued Furman v. Georgia, in which the Supreme Court held that the state's arbitrary and inconsistent (read: capricious and racially discriminatory) application of capital punishment violated the Eighth Amendment. My law journal recently dedicated its annual dedication issue to him. It was inspiring to hear various colleagues and students of his pay tribute. It made me wish I'd prepared for a career in appellate litigation. Amsterdam began his acceptance speech with one of many attempts at modestly stemming the tide of praise, roughly: "In the story of Paul Bunyan, which the panelists have reworked, he was accompanied by Babe the Blue Ox. So it is not surprising that they have given you such a load of bull!" Far from it, apparently.

Greatly Exaggerated

My blog is not dood; reports of his doodness have been greatly exaggerated. Here is my blog's official statement on the matter:

Friends, strangers, enemies,

I understand why some of you may have imagined me in protracted death throes--multiple reasons come to mind--but I assure you that my past month has been dominated by a very different activity: incubation. Yes, all of that milkweed consumption was not for naught. I have emerged from my cocoon more poisonous than ever, but without any cautionary garishness. (I am above the laws of nature.)

Now, whether you consider my metamorphosis an evolution is up to you. That said, be thankful that I live at all! My content will now consist chiefly of interesting links with brief commentary.

Tread lightly,
The Dumping Ground

The Constitution According to Akhil Amar - Class 8

Class 8 (Chapter 8)

The Constitution According to Akhil Amar - Class 7

Class 7 (Chapter 7)

Lincoln's Legacy

Maybe we'd be better off without American heroes, but as far as I know, Abraham Lincoln is as good a choice as any. David Armacost disagrees, and I responded to his character assassination attempt. I guess that pretty much makes me an American hero, too.

Plug - The Core of the Case Against Judicial Review

"The Core of the Case Against Judicial Review" by Jeremy Waldron

The Constitution According to Akhil Amar - Class 6

Fear not: there was no class last week, and we now return to our regularly scheduled programming.

Class 6 (Chapter 6)

Laurence Tribe Invented Flowing?

You can't make this shit up.

Maybe Because You Choked?

Vanity Fair on George Lucas on Indiana Jones and the Kingdom of the Crystal Skull:

Whatever, Lucas is convinced he won't please everyone. "I know the critics are going to hate it," he says. "They already hate it. So there's nothing we can do about that. They hate the idea that we're making another one. They've already made up their minds."

At least the legions of Indy geeks will be pleased, right?

"The fans are all upset," Lucas says. "They're always going to be upset. 'Why did he do it like this? And why didn't he do it like this?' They write their own movie, and then, if you don't do their movie, they get upset about it. So you just have to stand by for the bricks and the custard pies, because they're going to come flying your way."

Idioteque - Trialogue About Climate Change, or Just Disco?

"Idioteque" by Radiohead

Who's in a bunker?
Who's in a bunker?
Women and children first
And the children first
And the children
I'll laugh until my head comes off
I'll swallow till I burst
Until I burst
Until I

Who's in a bunker?
Who's in a bunker?
I have seen too much
I haven't seen enough
You haven't seen it
I'll laugh until my head comes off
Women and children first
And children first
And children

Here I'm allowed
Everything all of the time
Here I'm allowed
Everything all of the time

Ice age coming
Ice age coming
Let me hear both sides
Let me hear both sides
Let me hear both
Ice age coming
Ice age coming
Throw it on the fire
Throw it on the fire
Throw it on the

We're not scaremongering
This is really happening
Happening
We're not scaremongering
This is really happening
Happening
Mobiles skwrking
Mobiles chirping
Take the money run
Take the money run
Take the money

Here I'm allowed
Everything all of the time
Here I'm allowed
Everything all of the time

Here I'm allowed
Everything all of the time
Here I'm allowed
Everything all of the time

A Dialogue on Mandatory Abortion

Preface
This potentially ongoing exchange grew out of an earlier post in which I offhandedly defended the horrible-sounding practice of mandatory abortion (in the case of even more horrible, and incurable, diseases and conditions, that is).

Dialogue
Anonymous
I had a question or two about your stance on mandatory abortions. If all babies with a certain disease (for example, Tay-Sachs) are aborted, doesn't that completely destroy the incentive and ability to find a cure for that disease? Forget drug trials for that disease. Also, let's say that there's a 2% chance that the disease will not kill the person whom it afflicts, and a 98% chance that it will result in a terrible horrible death. Is that a high enough probability to require abortion? If so, isn't that probability still lower than what the judicial system should require for imposing non-lethal punishment upon a criminal defendant?

Me
It seems clear that aborting everyone with a given incurable disease would almost certainly prevent a cure. But I don't think it's worth it in certain cases. Many people would suffer and die in the costly search for a cure. On the other hand, many families would have to get abortions. Certainly the latter is a painful process - but not necessarily more painful overall than the search for a cure. I think it depends a lot on the specifics.

I'm not sure about the point of your criminal punishment analogy. In my view, a mandatory abortion requirement would depend on the expected value of a life with a given disease or condition. It would only apply in extreme cases and at the discretion of state-appointed experts who reviewed the findings of the primary ob/gyn doctors (who would be obligated to report certain diseases and conditions that met a some high standard). I'm not sure what, if any, exceptions would apply. I'm inclined to think that ideally there would be none - what could justify creating a life with something along the lines of infantile Tay-Sachs? I'm also realizing that it would be quite difficult to craft a mandatory abortion requirement, aside from the obvious objections of certain groups of people. Anyway, my response to your punishment analogy is that the relative harms of false positives and false negatives are different in the punishment and mandatory abortion contexts. I think it's worse to convict an innocent person than to mandate the abortion of a fetus that wouldn't have led a sufficiently bad life. And I think it's often more harmful to allow the birth of a baby with a sufficiently bad disease or condition than it is to let a guilty person go free. Note also that the mandatory abortion provision would only apply when a test indicates that the fetus has a disease or condition; perhaps the provision should only rely on tests that are virtually flawless. Then the only question is the expected value of life with the disease or condition. Now that I think about it, the implication of my position - which I'm fine with - is mandatory euthanasia for the incompetent in some cases (e.g., infanticide as an alternative to mandatory abortion when no sufficiently reliable prenatal test is available). To me the real problems are practical; this would be some statute to draft.

Anonymous
You're right that people would die painful deaths while humanity searches for a cure. But once a cure is found, then most -- if not all -- of the people with that disease henceforth will be able to lead full and, I assume, relatively painless lives. That condition will last forever, meaning that potentially countless lives will be saved by the cure. I agree that you have to consider the expected value of a life, and that a horrifically painful life will have quite a negative expected value. But if you really want to aggregate expected values here, don't you think that the value added by a cure, multiplied repeatedly for as long as mankind exists and uses that cure, would be quite large, and would probably result in a net positive value? I suppose you can make the argument that you're then subjecting the disease-afflicted children, who are born before a cure is found, to immeasurable suffering for the sake of speculative children in the future. And perhaps you can't add expected values of different people together. I haven't taken the time to think about my intuitions on this, but to me, something feels wrong about simply acquiescing to a disease instead of trying to find a way to cure it. Of course, this assumes that a cure can be discovered at all, let alone in the reasonably near future. In that respect, you're correct that it depends a lot on the specifics.

I'm going to leave alone your response to my criminal punishment analogy. Not only was your response effective, but also all this talk about Tay-Sachs and mandatory abortion....

Me
I take issue with the way in which you're valuing the cure. You implicitly assume that the alternative to the cure is countless afflicted people over time. But mandatory abortion/infanticide would prevent these people from coming into being. Thus the relevant cost (broadly speaking) is the cost of the mandatory procedure, which is certainly significant but pales in comparison to innumerable cases of suffering and death. It may be better to abort a diseased fetus even if a cure is readily available, because the cost of not having a child or of conceiving another child may be lower than the cost of treating the child (especially if treatment is risky or limited). In short, a cure doesn't necessarily have net positive value in the case of diseases that make lives not worth living and can be detected before or at birth.

I can see why one would view abortion as a form of acquiescence, but that's a matter of perspective, not a normative point. Besides, there's no inherent value to "fighting." It may feel better (more noble or whatnot), but does it do the most good?

I also want to note the undesirable implications of treating the values of lives as incommensurable. This may be attractive, but the alternative to measurement, however flawed, is no rational basis for decision-making. Consider environmental goods, such as the existence of bonobos, for example. Some may consider them "priceless," but this is belied by these people's willingness to trade them off for other goods. The real issue is valuation. (Should it be based on willingness to pay? Willingness to accept? Something else? How, if at all, can differential levels of wealth be accounted for?)

Plug - Mother Earth Mother Board

"Mother Earth Mother Board" by Neal Stephenson

The Limits of Litigation

This week's readings in my Culture and Law seminar focus on the shortcomings of law's standardization, ritualization, and creation of disputes. The articles invite us to reflect upon why some people deem legal redress inadequate or even inappropriate, and how the legal system should respond to these concerns.

A natural question is whether civil litigation should be more accessible, and, if so, how this can be accomplished without undermining its goals. Society enshrines litigation as the preeminent method of dispute resolution, but it is only realistically contemplated by a narrow set of people with a narrow set of disputes. Many people find it too daunting, too onerous, and too formal. (For every example of pathological litigiousness, there are surely hundreds of aggrieved individuals who found the barriers to entry to be too high.) But these reactions are, to a large extent, necessary byproducts of litigation's extensive procedural requirements; litigation is a mechanism designed to deal with the most significant bilateral conflicts and as such must go to great lengths to achieve accuracy, fairness, the appearance of propriety, and other values. In short, the rules of litigation must presume that there is a lot at stake. Society's recent response to the inaccessibility of litigation has been to provide an abundance of alternative means of dispute resolution, both inside (e.g., small claims court) and outside (e.g., arbitration) of the judicial system, as opposed to streamlining the process or reducing its costs. This strikes me as the appropriate response. I don't know of any major procedural reforms along the lines of notice pleading that would uncontroversially open the courtroom door to more plaintiffs. (As far as I know, the Federal Rules of Civil Procedure and the like are quite effective and are unhindered by political concerns or undue formalism.) In my view, therefore, significantly improving the accessibility of the civil justice system would require providing litigants with substantial financial assistance (e.g., by capping litigation expenditures or providing court-appointed counsel). I don't see why this would be preferable to the use of cheaper, less involved methods of dispute resolution. Is there anything wrong with full-fledged civil litigation being reserved for cases in which both parties expect to win big? What matters is that people recognize when they have been illegally injured and know that they have a feasible means of redress. This is consistent with William L. F. Felstiner, Richard L. Abel, and Austin Sarat's concern that "the study of the emergence and transformation of disputes may lead to the judgment that too little conflict surfaces in our society, that too few wrongs are perceived, pursued, and remedied."

This leads to the question of what should be done to facilitate the redress of relatively minor legal grievances. How should alternative dispute resolution mechanisms be designed? To what extent should they be promoted? In answering these questions, it's useful to consider what dissuades people from litigation aside from its costs. Austin Sarat's analysis of The Sweet Hereafter illustrates that litigation is an inherently adversarial process, both between and within each side of the "v." Indeed, the very definition of a side, as in a class action, is a process fraught with conflict. Even a team of one lawyer and one client must agree on a single narrative and strategy; as the parties multiply, so do the potential disagreements. A central difficulty is the disparity between the lawyer's and the layperson's conception of dispute resolution. Inexperienced litigants have to come to grips with counterintuitive aspects of litigation that lawyers take for granted, such as formality (e.g., rules of evidence), artificiality (e.g., witness coaching), and extensiveness (e.g., discovery). Ideally one's lawyer should counsel her about unrealistic expectations, but some lawyers are more concerned about retaining clients, and some clients are obsessed with vindication. Regarding the relationship between the opposing sides, Sarat makes it clear that civil litigation, like its criminal counterpart, entails one party blaming the other. I'm sure that even in cases of strict liability, many people view the defendant as having done something immoral. After all, it's always in a party's interests to demonize its opponent and glorify itself if it can get away with it. Understandably, many people don't want to partake in such a process, especially, as in The Sweet Hereafter, when the alleged wrongdoer is remote and any amount of damages would be fundamentally inadequate. Under such circumstances, all that a trial would do for some victims' families is keep their wounds open. This brief discussion suggests some dimensions along which it may be important to distinguish alternative dispute resolution proceedings from litigation. Such proceedings should generally be less formal, less ritualized, more open to individuals' natural narratives, and more flexible about assigning fault and remedies. In sum, what works for litigants often does not work for aggrieved parties who are turned off or intimidated by litigation's ceremony, stiffness, combativeness, and structure.

Overall, it's important to investigate what causes people to have a lack of faith in litigation. We can then ask whether the aspects of litigation that are to blame are worth it, and whether they should be maintained in alternative proceedings intended to resolve different types of disputes among different types of disputants.