Professor Leiter has some interesting thoughts on fact-checking at the Harvard Law Review—or, rather, the absence thereof. It was clearly improper for the HLR to publish that particular book review. I would have been much, much harsher than was Professor Leiter—not only is the review substantively indefensible, but the writing is precisely that sort of writing that gives lawyers a well-earned reputation for inability to write. But I do have one quibble—with Professor Leiter's terminology.

What Professor Leiter quite properly criticizes is a failure to cite check. Part of cite checking is doing precisely what Professor Leiter does in his comments: pointing out places in a work that require either support (which, as he notes, doesn't seem to exist) or a disclaimer that the statement is the writer's opinion. That is not the same thing as fact-checking, which involves not the support cited, but the facts underlying that support. Here's an example:

3,4'-dimethyl diazoamino benzene has a molecular weight of 287.24, melts at 391K, and is water-soluble.[note]
[note]CRC Handbook of Chemistry and Physics, 62d ed. (1981) at C-301.

A cite-check would correct the page number to C-264, correct the molecular weight to 225.30, and note that the source does not provide any data on solubility. A fact-check would go to another source and question the accuracy of the stated melting point. Some math will show that in this instance it is just transposed down a couple of lines on the page, but the point is that this is a different process.

OK, I've split that hair finely enough for today. Why? Because one of the two errors could form the basis for a defamation claim, and the other could not. An article that is properly cite-checked, within "reasonability" standards, does nothing for or against a defamation claim except perhaps help a jury believe that there was no intent and thus reduce damages. Attempting to confirm the truthfulness of factual statements, though, does, at least when done competently. The book review Professor Leiter excoriates did neither; but proper cite-checking (which, as noted above, is more than just checking page numbers) would have pointed to the underlying problems. As he notes, "A footnote adducing the empirical evidence on behalf of [intelligent design] would have been welcome, but there is none to be found, and for an obvious reason: none exists."

Perhaps some of my urge to split hairs here comes from the different perspectives and vocabularies in the publishing industry and academia; in the end, perhaps it is only another example of how the publishing and entertainment industries thrive on doing things differently from everyone else.

Yet more Martha Stewart news on the indirect effects of her convictions. Then there's the question of control of infectious diseases like the bucolic plague.

B. rusticus, also known as "bucolic plague," recently has been recognized as a serious public health risk. This bacterium secretes a psychoactive toxin that causes behavior-specific cognitive realm obsessive-compulsive disorder (axis I). Symptomology includes compulsive creation of ill-conceived craft projects from common household objects, obsessive thoughts of redecoration in a "country style" that bears little or no resemblance to historical or current rural and agricultural fixtures, obsessive claims of credit for the work (however dubious) of others, obsessive fascination with small wooden placques of marginally representational cows (often in a chaotic mixture of art nouveau and art deco styles, methods, and color schemes), and secondary intoxication from spray lacquer fumes. Incidence is gender-selective (M_f > 85%).

You'll just have to find the source of that quotation yourself.

As I've mentioned more than one time before—including while I was on active duty—the military has a much more serious problem with differing-sex rape than any potential problem with consenting same-sex activity or orientation. This includes not just the Air Force Academy, but the entire active duty force, as a recent study in PACAF shows. What I find curious is that only the USAF appears to be looking at the issue. Perhaps this reflects the higher proportion of female senior line officers in the USAF, compared to the Army, Navy, and Marines; perhaps it is the shock factor of the USAFA scandal; perhaps it is a difference in the openness of service cultures. As closed as the USAF's culture is, it is positively cosmopolitan compared to the Army, Navy, and Marines.

The Witness's Dilemma

The Perfesser notes some problems with the "false official statements" prohibition in 18 U.S.C. § 1001. In "After Martha," he basically agrees with the assessment that witnesses should remain silent and force the government to use the subpoena power to obtain testimony. Perhaps, in the abstract, that is an alternative; ironically, however, it runs right into another prong of § 1001.

…whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.

18 U.S.C. § 1001(a).

Martha's problem was violation of (a)(2), in that the jury found that she made a false statement or representation (and probably implicated (a)(3) as well with the phony logs). However, remaining completely silent in the face of otherwise reasonable questions may, in the hands of an enthusiastic prosecutor, cross the line on (a)(1). Certainly not in all circumstances; but consider this possibility:

Government Investigator X is attempting to determine whether Megacorporation M had engaged in fraudulent accounting practices. X asks administrative assistant A whether she knows of any documents that might tend to prove or disprove such practices. Although A does not know the contents of the documents and is not privy to the actual details (we'll assume for the moment that M was guilty), she does know that her supervisor, Vice President V, has directed a massive shredding operation that is to begin within the next few minutes. Fearful for her job, but not wanting to lie, A refuses to answer the question and demands that X obtain a subpoena before she will answer. While X is obtaining the subpoena, V's shredding operation eliminates all of the admissible evidence of M's wrongdoing.

Although it's hardly fair, this appears to violate the "conceals… by any trick" the material fact of the shredding under circumstances in which the shredding itself results in the destruction of evidence.

What this really points out is that § 1001 is badly drafted. Compare it to the clarity of Article 107 of the UCMJ (10 U.S.C. § 907):

Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

Typical. In the military, we're told to ensure that orders (and directives) can be understood by the people who might actually have to follow them. Apparently, the wisdom of that approach has not reached Capitol Hill.

As an interesting exercise in captive nation-building, consider the interim Iraqi constitution (HTML, badly translated from Macintosh). The most important stuff is, as usual with controversial documents, buried at the end and in the middle. The end (Articles 61 and 62) establishes deadlines for a new permanent constitution. It allows one failure-to-ratify rewrite, but is silent on the procedures to be followed if the second attempt also fails. Presumably, that means more UN troops.

Then there are interesting provisions like this one:

Article 16.
(A) Public property is sacrosanct, and its protection is the duty of every citizen.
(B) The right to private property shall be protected, and no one may be prevented from disposing of his property except within the limits of law. No one shall be deprived of his property except by eminent domain, in circumstances and in the manner set forth in law, and on condition that he is paid just and timely compensation.
(C) Each Iraqi citizen shall have the full and unfettered right to own real property in all parts of Iraq without restriction.

What do we call this—the Halliburton Clause? Or maybe just the "ignorance clause"—because nowhere does it define "real property." In the West, we mean land and fixtures on the land; depending upon which interpretation one follows, though, that's not necessarily congruent with Islam.

Grenāda, Grenăda

Professor Balkin provides a lucid explanation of judicial activism and how it is ideologically neutral, rather than a creature of "liberalism." Basically, Professor Balkin notes that calling a decision in the 1850s a "mainstream" position because conservatives today would not object to it is at best disingenuous. Instead, judging whether a particular "activist" decision is "conservative" or "liberal" must be based upon the standards of "conservatism" and "liberalism" current at the time the decision was made.

Professor Balkin's position becomes even more clearly correct when one applies the corollary of the opposite argument to recent "activist" decisions. Under that rule, we cannot judge whether recent decisions are "conservative" or "liberal" now; we have to wait years, decades, centuries until there is a need to reevaluate them, because only the definitions of "conservative" and "liberal" current in, say, 2025 (a short wait indeed!)—or, more properly, the policy preferences identified with "conservative" and "liberals" in 2025—can tell us whether a decision in 2003 is "conservative" or "liberal" in nature. If, of course, we assume that "activist" is objectively definable and not just an attempt to turn a descriptive term into a smear.

Consider, for example, the Michigan affirmative action decisions from this last term. One simply cannot call these decisions "activist," because they are founded on a seasoned (if not entirely defensible, as the Court admitted sub rosa by relying mainly on a concurrence) precedent: Bakke. Calling decisions "activist" because they attempt to delineate an extremely fine boundary—to make a distinction of degree, rather than of kind—only confirms that "activist" means "something of which I disapprove." What if the Michigan admissions programs had adopted an "economic background" test instead of one based explicitly on race? That would largely function as a proxy for race and ethnicity, as African-Americans and Latinos make up a disproportionately large segment of the lowest economic quintile (and the converse), but could be attacked as "irrational" only by using "disparate impact" analysis similar to that found in employment discrimination law. Routinely applying disparate impact reasoning to basic civil rights (other than voting) without a clear reason to believe in pretext would be a radical change in approach, as that approach has been repeatedly rejected—not to mention being so fact-intensive that one would be hard-pressed, even years later, to draw internally consistent rationales from decisions using such an approach.

What I find most interesting is that the examples cited by Professor Balkin and the others involved in this debate never reach obscenity and limitations on noncommercial speech. The farthest they seem willing to go is consideration of the "commercial speech" doctrine, which is admittedly a mess. Far more interesting than whether Central Hudson is a "conservative" or "liberal" decision is the question of whether Miller v. California and Roth v. US are "conservative" or "liberal" in their approaches. Of course, that gets into the question of what truly "liberal" means; I would exclude from "liberal" the extreme protofeminist position of Andrea Dworkin that all pornography is wrong because it exploits and demeans women, and therefore must be censored, but some others would not. Perhaps more important, the failure to grapple with the problems presented in Snepp v. US—which applies principles of contract law to suppress political speech—reveals a great deal more than the particular controversies cited by Balkin, Buck, and others.

More Disney Imitation

As further proof of its loss of the ability to innovate, Disney has just announced that it will coproduce a (potential) series of films based on C.S. Lewis's The Chronicles of Narnia, beginning with The Lion, the Witch, and the Wardrobe. In New Zealand, for $100 million.

The sudden enthusiasm for Narnia and all things fantasy—later this year, the Sci-Fi Channel will be presenting a four-hour-long made-for-TV film of Ursula LeGuin's A Wizard of Earthsea—reflects yet more of the herd instinct in Hollywood. The Lord of the Rings and the two (so far) Harry Potter films have demonstrated to a particularly unimaginative generation of Hollywood executives—quite a considerable achievement in itself—that fantasy reaches beyond the pseudopolitical thriller of James Bond, Tom Clancy, and Mission Impossible to works with a greater relationship to reality. So, in the usual fashion, Hollywood has rushed to acquire preexisting "franchises" based upon their popularity as books; based on this latest from Disney, adaptability to film is not a significant issue.

As difficult as it was to adapt The Lord of the Rings in any sort of fashion to film, it is nonetheless a linear narrative (well, actually two linear narratives wound together that fell apart in the last two films, but that's just quibbling) based largely in a humanoid-dominated, preindustrial-Europe-style nonallegorical universe. A Wizard of Earthsea is a much more subtle work, in some ways, being based on a seagoing culture with a lot of critical internal monologue. Whether the Narnia books, being dominated by non-humanoid characters, can be filmed without gutting them—particularly given the allegorical basis, some of which is rather racist—remains open to doubt. A $100 million budget, given the necessary amount of even-more-complex-than-Gollum CGI work, indicates a serious attempt to cut corners. In the end, all that will do is poison the well.

Hollywood is going through its decade-long cycle of emphasizing preexisting works as the source for its films, as opposed to original scripts. Instead of sticking to more-filmable works, though, and trying to learn from that process, it is attempting to replicate a single achievement that was done outside the Hollywood system. That sounds like desperate me-tooism to me. What a surprise.

Schadenfreude

So Martha may now have an opportunity to teach prison-cell decorating using US government issue blankets for hangings. I am somewhat surprised that she was convicted of all four charges. Although I certainly didn't sit in the courtroom and hear all the evidence, I believe that one of the four charges is properly a lesser included offense of something else of which she was convicted, so it will not affect her sentence and in fact should be thrown out.

The reporters I've heard on the radio haven't had any [insert favorite expletive here for deletion] idea of how the Federal Sentencing Guidelines work. I've consistently heard claims that her probable sentence (to be handed down on 17 June) will probably be about one year for each charge of which she was convicted. Hogwash. No matter how many charges of that nature she was convicted of, they'd be grouped for sentencing purposes. If one actually does the interminable cross-referencing in the current edition of the Guidelines, it seems that the apparent guideline range is 10-16 months before applying any mitigating factors or allowing for downward departure. Stewart is very fortunate that the insider trading count was thrown out, because in that event the guideline range would have started at 15-21 months. Why does that matter? Because full prison time is mandatory, absent a downward departure, when the bottom end of the guideline range is 12 months or more; otherwise, the "term" can be filled partially by prison and partially by community confinement and/or home detention, or even entirely by probation.

"Maximum of twenty years on each count" my left big toe. I doubt that she'll actually see the inside of a prison unless something really surprising comes up on the sentencing report or she pisses off the judge.

POD Blues

Well, technically one doesn't get blues with POD, one gets a laser proof, but who's counting? Most good printers do a laser proof these days anyway for non-color books!

In any event, the POD vanity presses took a massive hit from a St. Louis jury yesterday, which determined that three of the largest vendors had infringed a 1995 patent on the POD process. You can find images of the jury verdict form at Bookmachine.com. Damages were fixed by the jury at $15 million— and the jury also determined that infringement was willful, which requires the judge to consider two even more expensive issues: whether to award attorney's fees to the prevailing plaintiff (the successor in interest to the late Harold Ross who obtained the patent), and whether to multiply the damages by a factor of up to three. Thus, the exposure is probably a round $50 million from this verdict, presuming that it stands.

That, however, is not a good assumption. The defending POD vanity presses—Ingram, LightningSource, and Amazon—will undoubtedly file a whole bunch of post-trial motions to have the verdict thrown out as against the weight of the evidence, as excessive, as insufficient in its finding of willful infringement, and then appeal any remaining adverse result to the Federal Circuit. I've read the judge's previous 46-page opinion that interprets the patent (patent interpretation is a matter of law for the judge; the jury decides whether the facts presented fall within that interpretation). I'm not entirely convinced; I expect that the Federal Circuit will knock out one significant part of the opinion and send it back for reconsideration and possible retrial. I doubt that the Federal Circuit will reverse and direct a finding of patent invalidity or noninfringement; but that is also a possible result.

The upshot of all this is that one can expect POD vanity presses to be raising their rates in the near future to compensate for their exposure.

A few news items of interest:

• For years, I've been whining and moaning about how poorly lawyers write. Now, a "Judge Finds a Typo-Prone Lawyer Guilty of Bad Writing"—and reduces his fees.
• The increasingly popular voice-stress analysis device appears to be no better at detecting deception—generating both significant false positives and significant false negatives—than is flipping a coin. Now there's a surprise—we can't teach machines to do something that we don't understand how to do ourselves.
• Judges do change on the bench. Justice Blackmun is perhaps the prime example, evolving from a conservative "Minnesota Twin" of Chief Justice Burger to a man who would lament "Poor Joshua!" at the law's insensitivity to an abused disabled student and finally conclude that he could "no longer… tinker with the machinery of death."
• I'd remark "Ding Dong the Witch Is Dead!" at Michael Eisner's ouster as Chairman of the Board of Directors of Disney, but that invokes the wrong studio. For more detailed analysis, you can do far worse than read The Perfesser's outraged yet remarkably even-handed and scholarly discussion of corporate governance over the last couple of months. I thoroughly expect that by this time next year the Disney CEO suite will be in the midst of a serious redecorating binge. Not to mention some long-overdue firings, and possibly desperate attempts to get Pixar to change its mind.

Mostly just maintenance today. I've updated the blawg template, and I've got Warped Weft about 90% debugged. Unfortunately, I can't make it work in Lynx or Opera, so something is clearly wrong with the code.

On a more serious note, I'm now officially suffering library withdrawal. The Urbana Free Library, which is consistently ranked among the top 1% of non-university libraries in the nation, is in the midst of a major building upgrade. For the month of March, the stacks will be inaccessible while they're being moved from the preexisting part of the building to the expansion. Once that's done, the library will fully "reopen" in the expansion so the preexisting part can be remodelled. That doesn't mean I can't get anything from the library; but it does mean that thousands of my close personal friends are locked away from me, and I must specifically call their parents and ask that they come out and play.

Some kids are gym rats. I was, and remain, a library rat—the operative word being rat, of course.

In the News

This is a rather boring Monday. The "news" was last night.

Although I'm pleased that Peter Jackson & Co. were finally honored by the Academy for the quality of their work, the way in which it was done was rather annoying. ROTK is by no means a bad film; it is not as strong as either FOTR or TT. It's particularly ironic that this, the by-far-of-the-three weakest script (largely hidden by the sheer grandeur of the images), garnered an Academy Award. ROTK was certainly worthy of nomination; I narrowly preferred Master & Commander, particularly because the script of that movie never seemed to lose its sense of direction as the middle third of ROTK did.

The first boring item is yet another mistaken rehash of the Creative Commons license at the San Francisco Bay Guardian (a weekly newspaper). The article relies far too much on hyperbole and anecdotal evidence for its points, without ever coming to grips with the very real flaws in the CC license. (For example, the CC license does not—and cannot—inhibit an heir from asserting revocation rights under § 203.)

The second boring item is yet another misuse of terminology concerning POD publishing by the New York Times. Contrary to the assertions in this article, it concerns "POD vanity publishing." POD is a printing technology that changes particular price points for print runs and break-evens; it may support other business models, but it is not a business model itself, and aside from the specific numbers it is no different from the more-traditional definitions of "vanity publishing" and "self-publishing." As I've remarked before, it all comes down to two questions: Who is paying, and who owns the product? The technology used in the middle only changes the magnitude of the first answer, not its nature, and does not change the second answer.