11 February 2015

The Impending End of an Era

Satire can sometimes say in five minutes what it might otherwise take "serious" journalists (especially those who continually attempt to place themselves in the center of the story without paying the price of actually doing all of the preparation) an hour… if they bother at all (what Williams "did" was not acceptable; neither was it all that uncommon).

A note to Comedy Central: I'm embedding this from YouTube because your site uses the ethically unacceptable (not to mention rude) autoplay function. Your marketing folks also need The Cone.

I don't know where Stewart is going next. But I will note that whoever wins the 2016 election, there's going to be a vacancy for White House Communications Director to be filled. Recent experience demonstrates that we can do a lot worse than someone with a well-earned reputation for deflating self-important journalists and politicians.

  • Libraries are still vital, if only because they're far more reliable than anything coming out of a certain arrogant and inaccurate excuse for conspiracy theories beginning with "W" and ending in "pedia." More to the point, libraries implicitly teach the necessity of relying upon, and evaluating, a variety of sources instead of a quick set of not-necessarily-accurate keywords. Hmm… does that sound like what is all too frequently taught as "legal research" these days? Might this be foreshadowing of something else on this platter of link sausages, complete with creepy background music?
  • A thread over at the Grauniad on the conversation about race (and other discrimination) goes spectacularly wrong — in an entirely predictable manner — by confusing "diagnosis" with "treatment." Absolutely, there must be a conversation about race, and gender/orientation discrimination, and other varities of bigotry. Yes, it's an incredibly important conversation that's going to make a helluva lot of people uncomfortable. But employing suppression and bigotry of its own as a "solution" is, to say the least, counterproductive.

    The problem with "political correctness" is not with the recognition, or the conversation, or the earnest-if-humanly-imperfect attempts to keep others from suffering through the same circumstances; it is with the presumption of authenticity and the consequences of raising surface authenticity to the primary imprimatur of credibility… especially at the margins and in overlapping areas. And it's especially poisonous when it results in improper assumptions about what others have experienced themselves; an obvious example is that pale-skinned heterosexual college-educated men without an obviously non-Northwest-European surname are inherently "privileged" in all aspects of their lives… and therefore cannot be listened to, and are acceptable collateral damage. Hint: There isn't any "acceptable collateral damage" — that's the entire point of valuing individuals as individuals, although it's not to deny that there probably won't ever be a reform movement that doesn't have some collateral damage.

    I welcome the conversations, and want to actually learn something and ponder and consider what to do, and then try to do it in my humanly imperfect way. But don't reify the immediate group-dynamic self-interest of certain individuals who have been ascribed credibility on behalf of Group C in place of that of Group A, all the while expecting Group B to just accept that assigning the abuse-of-power vacuum to a different owner somehow fixes the underlying problem.

  • And now, a purely legal/jurisprudential entry. There's a move afoot to further restrict the length of briefs presented in federal courts of appeal by modifying the Federal Rules of Appellate Procedure. I'm even more convinced than I was a couple of weeks ago that this is a very bad idea... primarily because the limits on brief length are so ineptly implemented.

    What is a "word"? Well, it's anything that is counted by the word-processing software. That means that "R. 1:117" (record, volume 1, page 117) is two words... and "Santa Fe Ind. Sch. Dist., 530 U.S. at 310" is nine words. And the difference adds up over the length of a brief, especially when there are citations to multiple versions of legislative history. The obvious solution here is to go to an extreme short form that references just back into the table of authorities (which nobody really seems to use) with a pinpoint, such as "11:1097-98" (pages 1097 and 1098 of source number 11). In short, "Die Blue Book Die!"

    Some parts of the brief are subject to word limits that shouldn't be. The statement of the procedural history of the case should not be; just consider the difference between an accurate and proper description of the purely procedural histories of cases that were decided below on a motion to dismiss, on a motion for summary judgment, and after a jury trial. Then there's the problem of proper tracing for a case that is back up in front of the Court of Appeals after a remand… because if one does not do that, it's not clear what issues have been preserved for appeal (or for what has already been finally decided). And the less said about lawyers and summarizing of facts, the better. And quoting verbose contract language…

    Others have commented on opinion bloat; it seems to me that opinions that exceed the length of all briefs in front of them by a factor of two or more should themselves be subject to word limits, but you're not going to see the judiciary do anything like that. More to the point, the experience of the Illinois intermediate courts of appeal in imposing word limits on opinions demonstrates that it just doesn't work — too often, it leads to an easy deference to inadequate prior reasoning that is no longer relevant and/or on point in the first place, because deference is so much shorter and easier. This latter point is endemic to the common law; I just don't think it needs to be encouraged.

    Finally, and most relevantly, there's a fundamental difference between "on the cutting edge of the law" (where I've done a lot of briefing over the years in both civil procedure and substantive law) and "determining which existing law applies to the facts, and whether the facts were properly established in the first place." Under most circumstances, it just takes more verbiage to be clear, persuasive, and above all lawyer-as-opposed-to-policy-wonkish for the former than for the latter. The Rules make no distinction. They should: And that's the principal problem with restricting the length of principal briefs. One can be overly verbose at 14,000 (or 12,500) words... or painstakingly concise.

    In short, this is a problem of the profession more than it is of substance. Unless and until we actually teach and encourage lawyers to write concisely in everything, every attempt to control bloat is going to have serious unintended consequences. Just changing the Rules as proposed won't actually fix the problem; instead, like all too much in educational policy, it will substitute a measurement for actual evaluation just because the measurement can be done mechanically.