Onward, Scientist Soldiers, Marching as to Peace

I am reading The Social Atom, in which physicist Mark Buchanan argues that human societies are best understood not in terms of the individual humans, which present enough complexity and randomness to make understanding almost impossible, but in terms of the larger social patterns, of which individual humans are the constituent parts. He compares individual people to the smallest parts of matter, which are described by quantum physics and essentially impossible to predict at the smallest scales, while the social forms created by humans are more like visible matter, which follows patterns and is more predictable in its behavior. Thus, he says, we should look to patterns, not people, in the social sciences.

Can’t say I disagree. The only other alternative, and still the most popular one, is to say that humans are somehow mysterious and unquantifiable, separate from the rest of “nature,” and therefore fundamentally unpredictable. But there is no evidence that such is the case; there are just generations of people who have tried and failed to understand human society, thrown up their hands in frustration, and declared that we must be unexplainable. That doesn’t prove anything, except that we have a long history of failing to explain ourselves.

Seeing as how almost everything we know to be true became known after a period of ignorance that vastly exceeds the period of knowing, it hardly seems a decent argument to say that something heretofore unexplained is therefore uexplainable.

Some are surely skeptical that human society will ever be explained and others are, in my opinion, just unreasonably afraid of abandoning the idea that humans are mysterious and unquantifiable, separate from the rest of nature. But considering our history with war and peace and global problems like climate change, it seems to me that we ought to be working harder at figuring out how to keep ourselves from falling prey to our own ignorance about how we operate. If that means recognizing that, at least in the aggregate, we fall into predictable patterns whose properties can be tinkered with to reach desired aims, then we ought to pursue potential solutions.
At any rate, I recommend the book.

(Watch out now for the wags who leap, without basis in fact, to the conclusion that any attempt to improve the lives of individuals by understanding and tinkering at the societal level is tantamount to fascism or totalitarianism or some other failed attempt at social engineering. Because, you know, our knowledge has not advanced in the last century, and it never will, because humans are fundamentally mysterious and weird, so we can say conclusively that there is no way to make life better without destroying everything we hold dear and turning into Hitler. Therefore, anybody who even tries must be a Very Bad Person, clearly does not believe in God, and has no respect for the Sanctity of Life. Also, he weighs the same as a duck.)

Darth Cheney

The headline on this article made me laugh:

Cheney goes under knife for new battery

Brilliant. He’s more machine than man now, twisted and evil.

Senatorial Shenanigans

The United States Senate is having a slumber party. No foolin’.

They’ve ordered pizzas, they’ve brought in pillows, and they’ve even sent their staff to stock up on toothpaste and deodorant.  (That way, I suppose, if they don’t come out smelling like roses figuratively, they’ll at least have the literal version. Er, to the extent their toothpaste and deodorant smells like roses.)

“Will the all-night session change any votes [on legislation to withdraw troops from Iraq]? I hope so,” said [Senate Majority Leader Harry M.] Reid [(D-Nev.)]. “Because it will focus attention on the obstructionism of the Republicans.”

This, of course, is just the kind of peaceful absurdity upon which we here in Western Civilization pride ourselves. We don’t act like adolescent boys, all puffed up and angry with bombs strapped under our coats—we act like adolescent girls, shrill and scheming. With pillows.

Anybody in Homo sapiens up for acting like adults? Show of hands?

Propositions and Quotients and Correlations, Oh My!

A friend sent me to this interesting web site that has results from a whole bunch of different studies that, in the aggregate, indicate a negative correlation between religiosity and intelligence. In other words, the more intelligent a person is, the more likely that he or she is not religious, and vice versa.

Unfortunately, the site does not provide full citations for its data, but only refers to studies by the last names of the authors and the years they were published, so it’s difficult to assess the validity of its conclusion:

The simplest and most parsimonious explanation is that religion is a set of logical and factual claims, and those with the most logic and facts at their disposal are rejecting it largely on those grounds.

No religious person is going to agree with that conclusion, except for the occasional oddballs who claim that religious propositions are superior to logical and factual claims. Never mind, I suppose, that such a statement is impervious to evaluation.

At any rate, I thought the statistics were interesting. If we assumed for the sake of argument that the data are accurate and the conclusion is sound, it would be interesting to see how religious people would wriggle out of it. However, one should note that these would only be statistical trends and there can still be intelligent religious people, some of whom will be more intelligent than some non-religious people. Thus, one is faced with the likelihood that the religious people who both object to the negative correlation and can do a relatively good job of arguing against it will be a self-selected sample of those religious people who happen to be on the more intelligent end of the scale.

It is always interesting to think about these things, though.

Professional Ethics

I am working on my outline for Professional Responsibility, which requires me to know a whole raft of rules for professional ethics in the legal profession. Most of those rules can be summed up pretty easily:

• Be diligent in your research.
• Promptly and truthfully disclose important information to your clients, but do not disclose their information to anyone else.
• Tell the truth in court, do not submit false evidence, and cite the correct law to the best of your ability.
• Do not charge your clients too much money and then do not misappropriate their money once you have it in your control.
• Avoid conflicts of interest, or get informed written consent from your clients if it looks like there will be a conflict of interest.

Honestly, how hard can it be?

It is almost an insult that we have to take this class at all, but the “Attorney Discipline” section of the California Bar Journal makes it clear that plenty of people have not yet figured out basic things like the necessity of communicating with clients or the impropriety of misappropriating clients’ money. Others seem to think they can get away with charging unconscionable fees.

That such disciplinary reports appear month after month in the Bar Journal could be, depending on one’s perspective, astonishing. How can people get through law school and pass the bar exam but be so careless and unethical? On the other hand, the profession seems to draw a consistent, but thankfully low, percentage of shysters. That, coupled with the enormous number of lawyers in California, probably means that a continuous stream of violators will always be with us. Finally, for those who are prone to disgust with the legal profession, I should point out that reports like the ones linked above indicate that our disciplinary system works pretty well.

(As a point of comparison, one might note that the California Bar Association does not function like a labor union. When a lawyer screws up, the Association does not circle the wagons to make sure that someone unfit to practice keeps on practicing; rather, it hangs lawyers up to dry, to the extent proportionate to their errors.)

Furthermore, if you believe you are dealing with an unscrupulous lawyer in California, you can file a complaint, whose allegations will be investigated. (One can only hope that vindictive and malicious people will not abuse the system and file unmeritorious complaints.)

My class on Professional Responsibility requires me to know both the American Bar Association (“ABA”) Model Rules of Professional Conduct and the Rules of Professional Conduct of the State Bar of California, together with the provisions of the California Business & Professions Code that are applicable to attorneys.

Unfortunately, the ABA and California rules are not always the same. There are weird little differences. For instance, in California, under Business & Professions Code, § 6068, subdivision (e)(2), attorneys are supposed to protect the secrets of their clients “at every peril” to themselves, with only the narrow exception in Rule 3-100 that client information may be revealed if the attorney has a reasonable belief that disclosure is necessary to prevent a criminal act that is reasonably likely to result in death or substantial bodily injury to someone. Even then, before disclosure, the attorney has to make reasonable efforts to convince the client not to commit a criminal act and inform the client that the attorney may disclose the information. (In other words, in California, we really don’t want attorneys to be revealing their clients’ information.)

Meanwhile, under the ABA Model Rule 1.6, an attorney can disclose client information if there will be death or substantial bodily harm to someone, or even just substantial harm to the finances or property of someone—and there is no requirement of a criminal act. In comparison to the California rule, the door to disclosure might as well be wide open.

Here is another annoying difference between the two sets of rules: Under Rule 3-700(B)(1) in California, an attorney must withdraw from representation if he or she “knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or malicious injuring any person.” Meanwhile, the corresponding ABA Model Rule 1.16(a) has no similar provision. Does that mean that in jurisdictions following the ABA rules, there is no mandatory withdrawal if the client is asserting a position in litigation without probable cause and for malicious or harassing purposes? Withdrawal would no doubt be permissive under Rule 1.16(b)(4), providing the attorney finds it “repugnant” to bring an action without probable cause and to harass someone, but permissive withdrawal is not the same as mandatory withdrawal.

Once could find good reasons for both rules. For instance, if an attorney must withdraw from representation where the client desires to bring an action without probable cause and for the purpose of harassment, then every time an attorney does that, it will just teach the client that he or she needs to make sure the attorney believes the action has probable cause and that it is not simply to harass someone, which may be an incentive to deceive the next attorney in order to succeed in bringing the action that shouldn’t be brought.

On the other hand, by making withdrawal only permissive in such circumstances, rather than mandatory, attorneys might have an incentive to seek out the clients who want to bring these harassing lawsuits, so they can bring them in hopes of settling them quickly for their nuisance value. Other rules might come into play at that point, such as ABA Model Rule 3.3, which prohibits knowingly false statements of fact to a court.

Who knows? Ultimately, the point of both rules is that part of the job of attorneys is to act as gatekeepers to the courtroom by helping to ensure that frivolous lawsuits do not tie up the resources of the court. In my opinion, trying to put that broad objective into a rule that lawyers can follow by rote (“I am obligated to withdraw from representation because this client has no probable cause for her lawsuit”) simply indicates that a lot of lawyers are narrow-minded, uncreative, and incapable of recognizing their broad obligations and exercising their own good judgment in deciding how to fulfill those obligations. I think it would not be inaccurate to say that achieving the objective of shielding the courts from frivolous lawsuits may require a different approach depending in each case. Trying to nail down the “best” one will just result in weirdly conflicting rules like the ABA and California rules here.

At any rate, I would not object to having to follow either set of rules (though I will be bound to follow the California rule once I am admitted to practice), but it is annoying that I need to know these goofy little differences for the purpose of my professional ethics class.

And now I must get back to work.

Moot Court Results

My amazing partner and I won the award for Best Brief at the George A. Hopper Moot Court Competition this evening.

For the uninitiated, moot court is modeled on practice at the appellate level, where the lawyers submit a written brief and then go before a panel of judges for oral arguments. Appellate courts review decisions of trial courts. A brief is an explanation of the facts of the case as it proceeded in the trial court, the relevant law, how the brief-writer thinks the case should be decided, and why. At oral arguments, the lawyers argue their respective cases to the judges, who ask many difficult questions.

In the moot court competition, we first researched and wrote briefs, which were submitted two and a half weeks ago. Then there were several rounds of oral arguments.

Awards are given for Best Brief and for Best Oral Advocate. Apparently, our brief was the best one. My partner was also a finalist for Best Oral Advocate. Doesn’t get much better than us.

Call for Papers

The San Joaquin Agricultural Law Review is devoting its 2008 edition to legal issues relating to global climate change and agriculture, particularly in light of the recent decision of the United States Supreme Court in Massachusetts v. EPA, __ U.S. __, 127 S.Ct. 1438 (2007).

Global climate change will have an enormous effect on agriculture and our ability to use the rule of law to address present issues in light of long-term environmental impacts. An inspired reassessment of our laws and regulatory schemes is necessary at this crucial moment in history.

Through this special edition, the San Joaquin Agricultural Law Review hopes to provide judges, practitioners, and scholars with a valuable resource concerning ongoing developments in the law regarding global climate change, considered through the lens of agriculture, which is vital to human society.

The San Joaquin Agricultural Law Review was founded in 1991. It is published each spring and edited by students of the San Joaquin College of Law in Clovis, California, which is located in California’s Central Valley, one of the richest agricultural regions in the world. The San Joaquin Agricultural Law Review has been mentioned frequently in the National Law Journal’s “Worth Reading” column and is available via Westlaw® and LexisNexis®.

If you are interested in submitting an article for inclusion in the 2008 edition, please contact Assistant Editor-in-Chief Peter Wall at peter.wall@student.sjcl.edu. The deadline for submissions is December 13, 2007, with the editorial process continuing through March of 2008.

Those interested in participating are encouraged to read the guidelines for submission of professional articles.

Ridiculous and Incomprehensible

Why should anyone be “offended” when a violent computer game features the inside of a real church as its backdrop? But after making a game that features Manchester Cathedral as a backdrop, the people from Sony find themselves saying:

“[I]t is . . . clear that we have offended some of the congregation by using the cathedral in our science fiction game.”

The religious people, meanwhile, are calling it “virtual desecration.”

Incomprehensible, I say, after trying and failing to think of a possible analogue, of some space that is so “sacred” to me that I would bother to be “offended” if it became the backdrop for a violent computer game. A computer simulation of a location is, by definition, not that location. How can you possibly “desecrate” a space merely by representing it visually? Do these people not understand what a simulation is?

That there remain, in the twenty-first century, people in modern countries like the United Kingdom who bother to be offended by a computer simulation is utterly beyond me. Have they nothing better to do with their lives? Nothing better to be angry about? Do they somehow think that their God is invoked and dragged into a cyberspace instantiation of the Manchester Cathedral each time the game is played? Is their God on such a short leash? Is their God so petty? Are they?

Took Long Enough

This is the kind of scientific study I like:

The common notion that women are the more talkative sex has been dispelled by scientists in the US.

Excellent. And then:

“If women listened more we might find men talked more than we thought, and if men listened they might find that women actually don’t talk a lot of rubbish all the time. Some of what we say is actually valuable.”

Indeed.

Can’t Ever Turn It Off

Finally, I have a little slice of time that almost qualifies as “down time.” Essentially, that means I just have one thing I need to be doing right now, other than just relaxing.

It is difficult, after two years of law school and being crazy-busy almost all the time, to know what to do when there are moments when it is both possible and desirable, if not entirely wise, to do something other than study. The “not entirely wise” part implicates the facts that first, it would never be a bad idea to study more and second, depending on one’s position in the rankings and whether one hopes to stay there, the potential adverse consequences of not studying may outweigh the potential advantages gained from studying, leaving one in the unfortunate position of never feeling truly comfortable while not studying.

Little things frequently arise in conversations that remind me how much I need to keep from forgetting. A few nights ago, while having dinner with some people who are also in law school, our talk drifted toward the girl whose feet were severed by an amusement park ride last week. Almost immediately, we turned to potential liability and who the best defendant might be.

Surely, any decent personal injury lawyer filing suit in such a matter would name the park, the manufacturer of the ride, the staff who were responsible for maintaining the ride, and a chunk of “Doe” defendants, who are unnamed and unknown individuals or entities who may have had a hand in the injury, to be added by name at such time as they become known. However, that’s just good procedure. In reality, liability will probably only “stick” to one or two parties. The problem is determining which theories work best for which party.

One of the people I was with suggested negligence under a res ipsa loquitur theory, which basically means that injuries like this do not normally occur without someone being negligent and the particular defendant in question more likely than not had control of the instrumentality that caused the injury. That theory generally only works when you cannot identify a specific negligent act; if investigation were to uncover identifiably shoddy maintenance of the ride, then res ipsa loses viability. However, these clear and articulate thoughts did not occur to me while I was sitting in the restaurant. I want to say they should have, but they did not because I have not regularly reviewed my first-year torts material.

Another moment of frustration occurred last night with a similar group of people in another restaurant. One of my classmates is writing a paper about whether punishing people for giving money to groups that fund terrorism is an unconstitutional abridgment of the right to free exercise of religion for Muslims who are compelled by one of their Five Pillars to give money to charities. Our constitutional law professor happened to be at the table with us and he immediately said, “Well, what’s the standard of review for this kind of thing?” As someone who got the highest grade in his class, I was quite disappointed to find myself completely blank.

Basically, the standard of review applied to government acts that are sufficiently adverse to the right of free exercise of religion depends on the nature of the act. If the government act specifically targets religious conduct, then it is subject to “strict scrutiny,” which means the government has a burden to show that its action was narrowly tailored to advance a compelling government interest. On the other hand, if the government act is generally and neutrally applicable, then the government only needs to show that there was a rational basis for its action, meaning that it was not irrational for the government to believe that it was advancing a legitimate government interest. The thing to notice here is that the law prohibiting the provision of funds to terrorist organizations is probably generally and neutrally applicable; anyone who give money to terrorists is in violation of the law, regardless of whether that person is compelled by his or her religious beliefs. That is, the conduct of Muslims adhering to the tenets of their religion is not particularly targeted.

However, the more I think about it, the more I wonder whether there is a decent argument that the law is not actually generally and neutrally applicable. If a prosecutor could show that the only people who give money to terrorist organizations and the charitable groups who support them are people who practice Islam, then perhaps the law is targeting religious conduct by proxy. Even if that is the case, though, the government still might be able to meet the burden of “strict scrutiny” by showing that preventing funds from reaching terrorist organizations is surely a compelling governmental interest and the law is not overinclusive or underinclusive (i.e., it is narrowly tailored) in advancing that goal. Unfortunately, or maybe fortunately, I do not have time to research the problem further.

I am still annoyed that these things only occur to me after the fact. I should remember things like Employment Division v. Smith, 494 U.S. 872 (1990), which is the case that established the rule I mentioned above, that, in the realm of the free exercise clause, laws of general and neutral applicability must only withstand rational basis review, especially since I learned it only a few months ago. I should also remember the rule of res ipsa loquitur more quickly.

This is why I usually hesitate or stall, or at least feel like I am hesitating or stalling, when people ask me questions about the law. Sometimes, I just don’t know the answer and I am racking my brain to figure it out and I do not want to say the wrong thing. This is what law school does. It not only fosters the strong aversion to being wrong and looking stupid that most of us already have when we entered law school, but it also makes us remember that people might rely on what we say and if we tell them the wrong thing, it could be troublesome down the road. (That is also why we always have to be careful not to phrase things in such a way that they could be taken as legal advice, or as creating an attorney-client relationship, and to disclaim such things expressly: “This is not legal advice; I could be wrong; if you have an actual problem, you should seek and retain counsel.”)
It is extremely unlikely that chatting about the law with other law students and professors is going to create liability or cause much trouble, but those are the situations in which we are most acutely reminded of our ignorance. It happens all the time.

Another little one happened the other day at work when one of the attorneys I work for returned to the office after a deposition of one of our clients by opposing counsel and I asked him how it went, whether the opposing attorney seemed to be fishing for anything in particular. He mentioned that they seemed to be looking for something to support a theory of negligent hiring. “Do you think that’ll go anywhere?” I asked without thinking. “No, not if the employee was outside the course and scope of his employment and it’s pretty clear he was,” said my boss. Duh. I wrote a memo about all the potential theories in this case and should have known that. Why did I miss it?

This is why it is difficult to relax. It will only get worse, too. After I pass the bar, get some real clients, and have my name filed with the court as their counsel of record, so that I am responsible to represent them competently, with due diligence and the requisite zeal, then making stupid mistakes will cost the clients money. If the mistakes are big enough or stupid enough, they will cost me money, too. If they are really bad, they can cost me my bar number.

You can’t go into this field unless you can figure out a way to deal with feeling stupid and embarrassed and worried at nearly every turn. And if you never feel stupid or embarrassed or worried, then maybe you are not doing your job as well as you should be. On the other hand, knowing the law generally puts one in a position of power, or at least control. Plus, the flip side of feeling stupid when you don’t know something is that you can always go look it up. It might take you a few hours of research, but you can find an answer to anything. Even more exciting, if you can’t find an answer, you can devise an answer and then try to convince a judge that your answer is the right one.

Now I must go and get back to work on figuring out where the American Bar Association Model Rules of Professional Conduct differ from the California State Bar Rules of Professional Conduct and the portions of the California Business & Professions Code that apply to attorneys. Pretty exciting, eh?