If a belch is accompanied by citations, should we take it seriously?

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Newt Gingrich almost never meets a problem that can be fixed with anything short of a fundamental change in the operation of the Republic. His is a disposition that can only be called conservative through the lengthening political kaleidoscope of the last three decades, during which — and this is the key to understanding our current state of affairs — national Republicans have gradually ascended their own version of the Ivory Tower, one so lofty even its foundations float high above in the twisted nether, as Democrats have increasingly embraced pragmatic pursuit of near-consensus goals. (These pursuits go unchecked by any sort of equally pragmatic opposition more disposed to worry about unintended consequences, you know, the office that used to be held by conservatives.) But lofty ideals must at least be ideals, with some hint of reason, not simple tribalism surrounded by quotes from the Federalist Papers.

A recent Gingrich target is the authority of judges to pass on the meaning of the Constitution, with only the prospect of constitutional amendment, impeachment, and new appointments to restrain them. Among the sources of Gingrich’s outrage is a now-void ruling by the Ninth Circuit that Congress acted unconstitutionally in the 1950s when it added the words “under God” to the Pledge of Allegiance. Yes, one of the chief arguments for changing the modern federal order is Gingrich’s dislike of a Ninth Circuit decision that was overruled by the Supreme Court. As Dahlia Lithwick points out, if one dislikes the Ninth Circuit’s opinion, that is was overruled is evidence that the judicial branch actually works.

Sure, Gingrich has other targets: the cases deciding that captured human beings confined far from any battlefield at least have the ability to challenge aspects of that confinement in courts, for example. But other cases striking down acts of Congress, like the invalidation of campaign finance restrictions in the name of a corporation’s right to free speech in Citizens United, are in his words “principled” and should be “appreciate[d].” Abortion decisions, limitations on the death penalty, the potential for one day recognizing equal rights to marry — all are judicial usurpations or “assaults.” Heller, striking down local gun control laws is nowhere to be found. The common thread? The political branches and states should have some sort of power to ignore some kinds of decisions but, apparently not others. Oh, and everyone should be originalists.

Eric Posner, writing for Slate, suggests that Gingrich’s views on this “deserve serious consideration.” I think Posner is correct that the proper arrangement of branches — the design of the informational network of the institutions that comprise the federal government — should be further studied and debated. I’m writing about this, because it’s an area I find fascinating. And I hope to blog about some work I’m doing on the conditions under which law, constitutional or otherwise, legitimately binds future generations and the implications for interpretation and institutional arrangement.

Posner, though, is also correct in his closing paragraph: “Gingrich fancies himself a big-ideas man, but he is really just a politician with an interest in history and a penchant for bombast, and what he needs are ideas that will carry him to the White House.” Dahlia Lithwich has grappled with why Gringrich chose to make this an issue. Maybe it’s easy to bully courts, because they can’t talk back. Maybe he’s trying to shore up hard right support with bluster that he thinks other segments don’t care as much about. Who knows?

One thing is clear, though. Gingrich only deserves credit for advancing the conversation in the sense that he’d deserve it for wondering aloud, perhaps after watching a NOVA special, whether the universe would go on expanding, and suggesting that it indeed would — leading physicists to say that, well, there’s actually debate on this and that Gingrich deserves credit for raising the profile of the issue. But no one would conclude that Gingrich’s foray into physics speculation made him the right choice to lead a team of scientists trying to answer the question. He has shown no more precision, expertise, or ability on the issue of the judiciary’s role.

This won’t generally be a political blog, but what has stuck in my craw over the past few days is the suggestion that Gingrich has advanced a policy at all, much less a serious one. At a minimum, we should expect a presidential candidate campaigning on a policy to identify a problem and suggest what he or she would do about it. Gingrich’s position paper and statements do not come close to doing so. They fail to tell us the problem, fail to specify solutions, even by the gauzy standards of presidential politics, and amount to nothing but bluster, gussied up all law-history-like with citations to Framers, scholars, and judges, most of whom don’t even support the general principle Gingrich seems to advocate.

I think, even though he has taken some heat in the press, that Gingrich gets away with it because it’s a legal issue — both (a) technical enough for many people to defer to the white coat that is the multi-page document dripping with citations and (b) basically unfalsifiable. This is a real problem when it comes to public debates about the courts. Too many people either defer to supposed experts or fail to think deeply enough about what courts do, or they all too eagerly accept a citation-loaded white paper that bolsters their political priors. And political-legal arguments are thus free to float around without even the minimal criticism candidates receive when they talk about the budget or military conflicts, and these “out there” arguments can be cited to prop up the intellectual bona fides of the ones who advance them. (But see Bork hearings.)

Gingrich has somehow managed not to take complete advantage of the dual shield afforded by the nature of law, because he fails to provide a credible account of what he thinks the problem is and how he thinks it should be solved. Sure, he has identified a problem but only in the vaguest sense: that the Supreme Court has reached decisions with which he disagrees and that, on those decisions, the Court should not have the final word. He gives us no criteria for determining when other institutions should be able to overrule the Supreme Court. And what are his suggestions assuming there were some class of decisions open to political reversal? As far as I’ve been able to glean from his position paper, they come down to:

  • The Executive has unilateral power to nullify rulings on “certain national security” issues.
  • “[A] nationwide watchdog” group will be charged with “monitoring the courts and engaging the state legislatures whenever the courts behave radically.” Who knows what “radically” means other than perhaps decisions Gingrich dislikes.
  • State officials could “issue warnings to the federal judiciary about the consequences of the judicial branch exceeding its powers.” I defy anyone to explain what this means.
  • When Congress and the President disagree with the court, or as Gingrich puts it when “it is two branches against one,” the Court can be ignored, at least in an “area where the Constitution empowers the executive and legislative branches.” Of course every piece of legislation involves the consent of two branches, and since legislation is presumably within their power. So what does this mean? No idea.
  • Taking a cue from Lincoln, the President could order agencies “in certain circumstances” to interpret Court rulings as applying only to their facts, and not establishing broader rules. What circumstances?
  • Congress could go to war with the Courts by stripping jurisdiction and reducing or eliminating funding. Why and when?

Contrast this with other conservative targets of ire. Immigration? We’re told the problem is too many illegal immigrants and that the solution is building an electric wall. Terror? We’re told the problem is terrorist attacks and that the solution is war and torture. The economy? We’re told the problem is unemployment and that the solution is drastically cutting government spending. I don’t agree with any of these, or even the less caricatured versions of them, but at least they cite problems and suggest solutions, ones that can involve the public in debate.

I think, on the merits, Gingrich is wrong that there’s an actual emergency here, of whatever nature. I gather he fails to appreciate fully the dynamic institutional framework that we actually have. But, more fundamentally and narrowly (!), I disagree with Posner that anything Gingrich has said or written deserves serious consideration. Posner, himself, has very interesting things to say on this topic. Gingrich does not.

Why You Should Follow European Football (aka Soccer), Even If You're Generally A Non-Sports-Fan Geek Like Me

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Let’s say you don’t follow soccer, but you enjoyed watching some World Cup matches. (Yes, I’m going to call it soccer. I usually call it football, and you will too if you get into it. But I’m talking to my fellow Americans now, and many of them will probably already be suspicious that this is some sort of hippy thing without my self-consciously appropriating the name of the Sport That Tebow Plays.) If you’re a fan of other sports, I can’t imagine it will be very hard to convince you that soccer is worth following. So let’s suppose you’re not. Maybe, like me, you watched a sport or two as a kid, but you became a Mathlete and games came to mean either Dungeons and Dragons or Autoduel. Guess what, you’re going to like soccer.

It is indeed a beautiful game, even when viewed as a one-off affair. Matches between top clubs are, in my opinion, even better than those in the World Cup, as the quality of teamwork and concentration of top players can be higher. But here’s the real hook for geeks like me, the key mechanic that absolutely makes the sport: every year a league’s worst teams are demoted to the league below, while the best are promoted to the league above.

Maybe you know something about baseball. Well, imagine that in baseball the worst teams each year went to the minor leagues and the best were promoted to the majors. Now imagine that rather than two such tiers, there were twenty-four. Now imagine that a bunch of other countries had quality leagues and that the very best teams around the world competed in both their own leagues and in a true world series. And now imagine that the games reliably lasted two hours at most and that there was continuous action. Read on.

The game itself

Soccer is really, really simple to understand. There’s a ball. There are eleven players on each side. Your team scores one point every time you put the ball in your opponent’s goal. You can’t touch the ball with your hands or arms, unless you are the one player on your team designated as the goalkeeper and you’re within a box around your goal. The team with the most points wins.

A few more simple rules: If the ball is kicked out of play on the side of the pitch (i.e., the field), a player will throw it in. If it goes out at the end, it will be kicked in from a corner. Each team can substitute up to three players during the course of a game, meaning at least eight players have to last the entire ninety minutes. That’s basically it.

Unfortunately, there are two impurities that make the game a bit more complicated, but it’s unavoidable. First, offsides. In a nutshell, you can’t receive a pass unless the ball or a defender other than the goalkeeper is between you and the goal. It’s easy to understand both how the rule works and why it has to be that way after watching a game or two.

The second impurity is fouling. Action stops, and the other team gets a free kick when you improperly kick, trip, or push an opposing player. The rules are detailed, involve judgment calls, and encourage faking. The gist is that dangerous or repeated fouls (or faking fouls) will lead to the referee’s showing a player a yellow card, a warning. If a player receives two yellow cards, he’s shown a red card and is out of the game. The team must then make do with ten players. Particularly bad fouls, including those preventing goal-scoring opportunities, may bring on a straight red card, and the player’s out without a warning. Also, fouls in the box give a penalty kick, a close-range shot on goal with only the goalkeeper to beat.

The leagues

In each of the top leagues in Europe there are about twenty teams. Over the course of a season, each team plays every other team twice, once at home and once away. Winning gets three points. A draw earns one (no overtime). Losing gets nothing. At the end of the season, which typically runs from August until May, the team with the most points is the champion. Wait! What about the playoffs, the championship game!? No, none of that. The team with the most points wins — and it’s awesome. It means that every game of the season matters.

When I say every game matters, I mean that nearly every game matters to nearly every team. This is where relegation and promotion come in. Though it varies from league to league, usually around three teams at the bottom of the table (the listing of teams in order of points) are relegated to the league below. The top three teams are promoted to the league above. In some leagues there are special play-offs for one of these spots. For example, the play-off final for the third promotion spot from the second tier of English football (the Championship League) to the top league (the Premier League) is played at Wembley Stadium and is worth millions of pounds to the winner, perhaps the most valuable single game in any sport. In a league of twenty, there will usually be a good handful of teams competing for the top three spots and another good handful competing to avoid the bottom three. Lots of teams have something to play for right until the bitter end.

The biggest, single prize in European soccer, however, is not winning the league. It’s winning a pan-European league comprising the top teams from the various leagues. You see, the top few spots in each nation’s top league lead to participation in the next year’s European Champions League. The Champions League is played very much like the World Cup, with a group phase in the fall (like a mini-league from which two of four teams advance) and a knock-out, play-off style competition in the spring.

But wait, there’s more. Each country also has a national cup tournament, contested by all the teams in the top few leagues. And all of these competitions — the league itself, the cup tournament, and the Champions League — are all going on at the same time. The greatest honor is to win the European triple, called different things but meaning to win the league, the cup, and the Champions League in a single season. (There are other kinds of triples and doubles and more than one domestic cup competition. Doesn’t matter for now.)

What’s so cool is how, in concept, a rag-tag group of amateurs can build a team that rises all the way through the English league system to win the European crown. And a mighty team can fall through the floor. About twenty years ago, Fulham was in the fourth tier. Manchester City, leading the Premier League as of this writing, was in the third tier in 1998. It’s a high-drama, fascinating system (with interesting economics to boot).

How to watch

You don’t need to understand or think about every competition, every country, or every team. Pick one league, and pick one team in that league to follow. That’s what I did when I started rooting for Arsenal about a year and a half or so ago. (Yep, big newbie here.)

For those in the U.S., the English Premier League is the easiest to keep up with. It’s also quite competitive, with six or so teams in the hunt for the top spot, and features top players. Other excellent leagues are the top flights in Spain, Germany, France, and Italy. Spain features what are probably the two best teams in the world, Real Madrid and Barcelona. The Madrid-Barcelona games are worth watching no matter what league you follow. (Unfortunately, they so dominate that the Spanish league is mostly a battle for third place.)

ESPN will usually play a game or two a week (with many European matches on espn3.com), and Fox Soccer carries far more. I watch online and subscribe to foxsoccer.tv, which is a bit pricey at around $20/month. But by far the best way to get started is to watch a match a week at a local soccer pub. For me, that’s The Royal Peasant, a ten minute walk from my house. Search the web or ask around to find yours. Even for a non-sports-fan like me, it’s a blast to be at the local pub with fans from around the world when a goal leads to cheers that blow the roof off.

Many of the English games begin at 10 or 11 and, remember, last two hours. So it’s a perfect way to enjoy a Saturday or Sunday lunch, without spending hours in front of the TV. I’ve found soccerway.com to be an easy place to check schedules, standings, and results. Don’t get overwhelmed, just follow the results in your team’s league. Welcome to the beautiful game.

Law's Not That Hard

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Frank Abagnale, the anti-hero of Catch Me If You Can, forged a transcript and passed the bar exam never having attended law school. Eight weeks of study, apparently, was enough for him to pass the exam on his third try. People I’ve heard discuss the film often cite this fact as evidence of Mr. Abagnale’s unusual gifts. I, too, was astounded by Mr. Abagnale’s resourcefulness and adventures, but I didn’t find it at all exceptional that he was able to pass the bar. You see, law is just not very hard.

Any reasonably intelligent person can fairly quickly learn enough about law to understand its practice and to make legal arguments. A very thin volume explaining legal concepts is all that it would take to turn a competent engineer, doctor, writer, scientist, mathematician, or other analytically-minded individual into a decent lawyer. While I’m not yet ready to draft such a volume, I thought I would try out some of what it would contain here, in a series of posts to which I’ll return from time to time.

Let’s get started

For many outsiders, law is a discipline seemingly steeped in obscure methods and arcane procedures. Most of my beginning law students think that a lawyer’s training is in knowing what the laws are. They believe they will be expected to master a list of laws in each subject and that lawyers are people who know these lists. The way we often teach it, coming as case after case illustrating discrete types of laws and disputes, may initially reinforce this assumption. But it could not be more wrong. As with most fields, expertise in law lies in knowing how to learn more of it, not in an encyclopedic knowledge of all its details. There are concepts and methods that, once acquired, allow you to do law: to read it, understand it, criticize it, and make it. Put simply, becoming a lawyer is about learning a set of concepts and a language, not a list of laws or even where to look laws up.

Here’s as good a starting point as any: What is a legal argument? This question leads us to ask what a law is. At its most basic, and sweeping some philosophical problems under the rug for the moment, the body of law is a set of information that will be part of the basis on which a court will decide whether to compel a private citizen to do something he wishes not to do. Susan wants John to do something, and the rest of society, acting through a court, will force him to do it if there is a law that says he must. A legal dispute involves a set of facts, one or more laws, and the things the court may order if it finds, from the facts, a violation of the law.

The undesired thing that the defendant is fighting to avoid might be paying money to another private citizen or the state, or serving a prison sentence, or ceasing to operate a factory. And the court’s judgment will come in the form of yet more information that may serve as part of the input for future judgments.

The law itself consists primarily of statutes (acts of legislatures), administrative rules (acts of governmental agencies), contracts (acts of private parties), common law (the collected acts of courts that have made law to decide cases). They constrain behavior, stating that if some class of facts occurs, then some judgment should follow. No matter how long or convoluted, all primary laws boil down to: If X occurred, then a court should order Y. The trick is translating the typically vague or ambiguous text in which a law is encoded into this simple form. The opinions of courts in other cases (or the informational outputs of other institutions) can and sometimes must be used when deciding among possible translations.

(Note: In a later post, I will discuss two special sets of laws that do not conform to this simple pattern. These laws govern (a) how primary laws can be made and what they can and cannot do and (b) how law can be enforced. I call such secondary rules, or meta-laws, Constitutional Law and Procedure, respectively. For example, the First Amendment prohibits Congress from making laws that abrogate the freedom of speech. This secondary rule, a rule of Constitutional Law, limits the scope of primary laws. It’s not the basis for ordering another party to do something it wishes not to do.)

The facts of the case are the third bit of information that may be contested. In the above formulation, whether X occurred, even if we don’t disagree about what the law means by X, might be uncertain. We may agree that someone shot the victim at point-blank range. But the defendant is only guilty of murder if, among other things, she was the one who killed the victim. To show a law violation is to show that the law’s criterion is satisfied by the facts to a given degree of certainty, called the standard of proof. For example, we must put on evidence that convinces us “beyond a reasonable doubt” that the criteria for murder, which include the fact that it was the defendant who caused the victim’s death, have been met in order to conclude the murder law was violated by the defendant.

A legal argument

The job of the lawyer, in the end, is to identify the relevant informational inputs, law and facts, and to argue about how they constrain the possible output (the judgment). “Your honor, facts x, y, and z occurred here. And law A says that if those three things happen, then the defendant must pay the plaintiff damages.” Or: “Your honor, the law says that a fine of $100 must be paid by anyone driving between ten and twenty miles per hour above the speed limit on state highways. Here, radar shows the defendant was driving seventeen miles per hour above the posted speed limit of state highway four. Therefore, he must pay $100.”

A basic legal argument goes in several parts:

  1. separate the dispute between the parties into separate possible grounds for liability, i.e., the separate possible law violations;
  2. for each possibly applicable law, parse the law to determine the criteria, X, under which it will be found to be violated; and
  3. argue that HERE, X should or should not be found BECAUSE (apply the facts to determine whether the criteria have been met).

Again, separate the overall dispute into component legal issues; for each issue, formulate criteria that will suffice to find violation; apply the facts to determine whether the criteria were met.

Your job is first to bring order to the stream of facts relating to a dispute (and, believe me, aggrieved parties will deliver an uncoordinated jumble of facts and outrages, and they will argue that all this means they should win a bunch of money). Identify the separate complaints that an aggrieved party is making, and match these with potential grounds for liability, whether based on contract or publicly made laws. This involves some, very minor, skill in being able to search and sift through laws. Fear not, I’ll return in a later post to why it’s not all that hard to understand law’s sources and to figure out, without studying a complete list, what the law probably is and where it is probably recorded.

I use an archery analogy with my students to explain how they should think about making a legal argument. One by one, for each law, set up the target by explaining what the criteria are for proving a violation. This may involve acknowledging ambiguity or disagreement among other courts that have applied the law. Next, reach into your quiver (the set of facts) and fire arrows at the target. That is, explain why the law is or is not violated using the facts of our case.

The most basic legal argument goes: Plaintiff argues that Defendant is liable for violating law A. Law A is violated if criteria X is satisfied. HERE, X is (or is not) satisfied, BECAUSE the facts do or (do not) satisfy X. Identify the law that applies. Identify that law’s criteria. Apply the law to the facts.

I have found that the archery analogy, emphasizing order, law identification, and deployment of facts, helps them to understand what makes for a good argument - or at least a good exam answer. For concrete examples of good and bad arguments, see Orin Kerr’s post from a few years ago on exam answers over at the Volokh Conspiracy.

Law is, to the contrary, hard

What I’ve discussed is just the most basic part of the basic skill of arguing about law. Law itself is, to me, an intensely fascinating subject. I study it as the set of rules we use to govern ourselves. It could hardly get more interesting than to think deeply about why we have decided to rule ourselves this way and whether we could do a better job of it. These questions call for the full use of other areas of knowledge: psychology, economics, statistics, sociology, physics, and just about every field you can think of that grapples with what is really going on inside of and between us humans.

Even though I’m trying in this series of posts and in the abstract theory that guides them to argue that law is easy, there is an important sense in which I’m wrong. While it’s indeed easy to understand how we go about law, getting law right is very hard indeed. In fact, it’s the piece of advice I got in law school (from Mark Kelman) that I continually turn over and keep at the forefront of my mind: “Make the easy problems hard.”

That is, in the context of this little blog post, it may be easy to learn how to make a legal argument:

Parties are fighting about something. Law A speaks to that thing and has criteria X. Here X is met or not met because of the facts.

But to make a really great argument, we need to appreciate why the parties are fighting, what justifies their positions. It’s in understanding, deeply, the strength of the intuitions justifying your opponent’s position, that you can understand what law A really concerns, and why figuring out and applying criteria X is, in fact, a hard problem that may divide courts. My point here is only that it’s easy to be able to undertake this very hard work.

Apps as Objects

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What is it that makes some mobile apps feel so compelling? Why is the skeumorphic design of some of Apple's recent apps so awful? Why do desktop apps feel dated? I came to my own answer to these questions while listening to Dan Benjamin and John Gruber complain on The Talk Show about the regrettable new version of the official Twitter app for iPhone.

Ever since I can remember, applications have presented to me interfaces. Even the best of them put graphics on a screen that clearly mediated the relationship between the user and the processing of data managed according to a set of rules. (The worst of them were exercises in trying to figure out how to manipulate a crummy interface to do the processing that you wanted done. A number of versions of Microsoft Word, for example, required hunts through menus and dialogs to try to determine the magical series of clicks that would trigger the right formatting or appearance of text. You knew what you wanted and that it could be done but not how to tell Word to do it.) Great apps could try to make you forget, through inspired design and new metaphors, but in the end you knew an interface was there - that there was mediation between the processing you wanted the app to do and the actions required to trigger it.

Touch computing makes progress on this front, as it removes at least one layer of artifice. If the interface doesn't lag, then selection and clicking feel like direct manipulation of data, not as though they are actions requesting processing, followed by a graphical response. A drag of the mouse and a click of its button are abstract, obviously actions you intend the computer to observe and respond to. Touch rids us of this, but the way forward requires more.

I believe that the best apps will be designed as complete objects. They will have an internal physical consistency, a logic of manipulation, that will make using them feel – not just look – like using a *thing* rather than putting in a series of requests. When you pick up a new object in the world, you look at it, turn it over, fiddle with it. You try to figure out what it can do, how it interacts with other things, and you gather this from its shape and how it responds. Think about picking up a book, a Swiss Army knife, a jewelry box, or anything else you happen to have around you. All these are designed, to be sure, but you learn how to use them and know their limits by the physics that apply to everything else in the world. How they are put together dictates the rules of your interaction with them, and you just know those rules because physics are everywhere and the object is right there, exposed in front of you.

I keep coming back to this when I think about what makes the Twitter for iPad app so compelling, even though it has significant flaws. That app, with its sliding drawers, just hints at a semblance of being a complete thing unto itself. You feel, when the app is at its best, that you are playing with an object, that obeys known, physical rules. You are not requesting some data processing to be executed and to report back to you.

Now, Twitter for iPad is not perfect. Tapping a tweet to see a conversation feels like a request, not a physical revealing of a conversation from the germ of the tapped tweet. Doing a reverse pinch to expand a tweet into a profile, figuring out whether to hit the tweet itself or the picture of the Twitter user, and some of the sliding don't feel particularly intuitive or connected to an easy to understand set of rules. But the potential is obvious. With more attention to detail, using Twitter can be like using a real thing, like a magical set of cards but where that magic has simple and clear rules and bounds.

Although Twitter for iPad feels a little like sliding cards on a desk, it doesn't try to replicate that experience - and it certainly doesn't look like a desk covered by paper. Flipboard may even be a better example. It doesn't act like any real book, and yet turning "pages" is so addictive, because it just feels manipulative, not input-output driven. That probably gets at it best, that it's the feel of using these apps, not the look of the animations in itself, that makes them seem so right.

Indeed, the best apps will likely not take many graphical cues from the real world objects they logically resemble. Criticism of skeumorphic designs in Lion, like address book and calendar, and in iOS, like iBooks and Find My Friends, are rampant and on target. Although I think Steve Jobs was right relentlessly to focus on making the user feel like he or she was using a real object rather than a computer, these Apple apps make clear why mimicking the appearance of a real object is often a lousy way to do that. A book reading app will never be a book, and we shouldn't try to enlist the user in pretending otherwise. It's like putting wood panelling on a TV or making a car look more like a buggy. No thing will ever be great masquerading as something else. They can only disappoint when the physics and rules of the app diverge from the real thing. If it looks just like a calendar and I can't tear off pages, circle dates, flip back and forth, and the like, it will feel like I'm using a poor facsimile of a calendar. I'd rather use a new kind of object altogether.

The object oriented app will have a consistent, internal physics. It will have a simple and bounded set of interaction rules. And most importantly, using it will feel like manipulating a thing. We will use the app to make things happen directly, not as a remote control for sending messages in order to receive other messages.

I don't know what these new apps will be, but I do know that we've glimpsed their birth.