Law's Not That Hard, 2: Legal Sytems

In the first part of this series of posts, I argued that understanding how law works is not very difficult, that it’s easily accessible to people with basic analytical ability. I started out with an explanation of the basic skill of making an argument by connecting a law with the facts of a case. Like an archer, you set up a target (the law relevant to an aspect of the dispute), and you then fire your arrows (the facts of your case) case, arguing that they either do or do not hit the target BECAUSE (insert your argument for why the facts do or do not meet the criteria established by the law here). Rinse and repeat for each law applicable to the dispute. That’s the core mechanic at the heart of litigation-oriented practice.

But how do we know what the laws are? And what kinds of arguments count as good “BECAUSE arguments”? There are three basic elements essential to a solid understanding of legal systems. First, you need to know how the legal system works so that you can tell what the laws are, what they should be, and how they are enforced. Second, you need to know, mechanically, how to make an argument (first introduced in the last post). And third you need to know how to judge the quality of an argument, that is what kinds of arguments are in bounds.

In this post, I’m going to show you what the basic areas of a legal system really are: Tort, Contract, and Criminal Law, all governed by Constitutional Law and Procedure. This subject arrangement is not arbitrary and knowing how to derive it will help you learn how to develop intuitions for what the law should be in any give case.

First Things First

Let’s talk about legal systems. How do we know what the laws are or should be? You no doubt have some familiarity with contracts, “lawsuits,” prosecutions, and the like. You surely know, as well, of wills and gifts. All these things seem like possible subjects of court cases, all of them laws of one kind or another. How do we make sense of this jumble of things a court might have to deal with? I’m now going to take a crack at explaining a way of understanding legal systems that I advanced in a recent article. Please, download the article early and often! (Why that’s helpful and why the fact that it’s helpful is absurd will be the subject of another post.)

It’s easiest if we go back to first principles, and so you’ll need some patience with abstraction. Start by thinking not of formal, developed legal systems, but of random collections of people. “In the beginning,” suppose we have a group of people who decide that life will be easier if they work together. This group decides it will undertake certain joint projects and has some ability to coerce its members to cooperate. Maybe all they can do is kick you out. Maybe they can beat you, imprison you, make you pay a fine, or make you compensate someone else in the group.

A legal system is the set of rules, call them “laws,” for figuring out how this group, or “public,” will deploy whatever coercion it can muster. So we see that a legal system is an attribute of just about any collective you can think of: a nation state, a corporation, a fraternity, or your local PTA. They all have legal systems, and, guess what, all of these systems have the same, basic structure. Let’s turn to what that foundational structure is. (Aside for law profs: I know this sounds like Austin, unreformed by Hart, but this is immaterial at the moment. For now, all that matters is that I’m defining something. And you can call that thing something other than a legal system if it bothers you.)

Classifying the Laws

One of the very first things any “public” must decide is how its laws should be made and enforced. And the most basic element of each of those decisions is who should do so. You see, the business of law is the creation and transmission of information. For example, a legislature may draft a law, pass it, transmit it to the chief executive, who signs it, publishes it, and then a court reads it, interprets it, and creates information in the form of a judgment, which is then the basis for action by others. So a legal system can be conceived as a set of rules to manage the creation and passing of messages among various groups within a public. (If you’re a computer programmer and are starting to think this sounds like object-oriented programming, yes, the connections are deep, because both endeavors are code-based efforts to manage complex systems.)

To proceed further, we need a convenient term to describe subgroups within the public that will be making and passing on legal information. I’ll call these groups institutions. The Congress is an institution, with many sub-institutions. A corporation is an institution. They’re all over. But to understand the basic structure of legal systems — and to construct a simple atlas of the laws — we only need to talk about the two fundamental types of institutions: public and private. Public institutions, like legislatures, presidents or city councils, are established by the collective to work on behalf of the collective. Private institutions, like a corporation, a single individual, or contracting parties, are the creations of private individuals meant to serve the interests of those individuals , even if those interests are altruistic or publicly minded.

So here it is, an atlas of the legal system: law can be made by either (a) private institutions or (b) public institutions and prosecuted by (a) private institutions or (b) public institutions. By “prosecute,” I mean, roughly, who controls whether a cause of action is brought. Can you go to court and sue, privately prosecuting, or does the decision whether to enforce a law and prosecute rest with a public official, a public prosecutor? (The full article contains a bit more detail.) Setting this out in a chart, we have the following:

	Privately Made	Publicly Made
Privately Pros.	Contracts	Torts
Publicly Pros.	Parens Patriae	Criminal Law

These are the basic legal areas: Contract (privately made, privately prosecuted), Tort (publicly made, privately prosecuted), Parens Patriae (privately made, publicly prosecuted - and almost, but not quite, an empty set), and Criminal Law (publicly made, publicly prosecuted). Beware, these are my own labels. Gifts are part of Contract Law in my atlas, and civil rights statutes giving individuals a right to sue violators are a part of Tort Law. Other academics and practitioners might not use these same labels, but our goal is understanding legal systems in general. Once you know that, then learning the particulars of our own system or some others is just picking up jargon.

So why is this a useful map? For one, it helps law students understand why they take Contract, Tort, and Criminal Law as foundational, first-year courses. In doing so, you’re functionally covering the whole legal system. For us, it will help to understand, in broad outline, why laws come from the institutions they do and what the limits on such laws should be. Put simply, the constraints on a contract, statute, or other type of law almost always come back to the characteristics of the institutions that made it. And so if you’re trying to argue that a law/contract/regulation is valid, invalid, should be interpreted in a particular way, or anything else, the right kinds of arguments will be found in thinking hard about the characteristics of the law’s drafter. Just a little more about this…

A Functional Atlas

The above is a classification of the laws of a legal system. But legal systems have rules, sometimes called secondary rules, that specify how a law must be made, how far it can go, how it should be interpreted, and how it should be enforced. Constitutional Law is what I call the set of rules governing which institutions can make which kinds of laws (so-called structural rules, like voting rules, age requirements, and the like) and what the permissible contents of laws are (which you can perhaps lump together as “rights,” such as that the law may not abridge the freedom of speech). Similarly, the rules governing who can bring and how they can bring actions to enforce law, I call Procedure. Here’s the full map of arbitrary legal systems:

		Constitutional Law
		Privately Made	Publicly Made
Procedure	Privately Pros.	Contracts	Torts
	Publicly Pros.	Parens Patriae	Criminal Law

To re-emphasize: Constitutional Law are the (secondary) laws governing the making of laws. Procedure is the (secondary) law governing the prosecution of law violations. There is a public and private Constitutional Law — and Procedure. One of the goals of my academic work has been to exploit this symmetry to show how these areas of law — the private Constitutional Law of Contracts, comprising offer and acceptance and contract doctrines like unconscionability, and the public Constitutional Law, often with more rule-like procedures for law enactment and with rules of due process and other substantive constraints — nicely mirror one another, with the differences owing precisely to the generic difference between public and private institutions.

The key advantage to learning law in these terms is that we can develop intuitions and arguments about what the law should be based on the qualities of the institution at hand. For example, individuals typically act in their own self-interest. If we’re going to allow them to make a law that binds others, we should probably only do so if all those others consent. And, indeed, the basic structural provision of what I call the Constitutional Law of Contracts is consent: that a privately made law may only come from a unanimous private group containing all those who would be bound. Public agents are expected, in contrast, to act in the public interest. And our secondary rules governing the public making of law are tuned to trying to ensure good agency (by looking to see that proper and usually detailed procedures were followed and scrutinizing more closely than we do with contracts the fit of a law with our more basic norms - freedom of speech and equality, e.g.).

Next Steps

Importantly, we now have in hand a map of the legal system, Contract, Tort, Criminal Law, governed by Constitutional Law and Procedure. We’re going to need to go over some examples to see how the public or private identity of the institution plays a primary role in the content of Constitutional Law and Procedure. That will give us an abstract understanding of legal systems, a set of expectations about how laws are probably made and governed.

Then, we can begin to look at how our system, in particular, is constituted. What are the public institutions? What kinds of legal information does each produce, and how does information flow among institutions?

Once you know these things, you’ll be able to take a dispute or an issue and know where to look and how to think about what the law is and what the law should be. Should we leave this issue to parties to contract over? Should we pass a law that creates rights to sue? Should we create a criminal law? What kinds of sanctions should there be? If you know what the law should be, then, because the law very often is what you think it should be, you’ll know where to find it and how to argue about it.

And finally, in this series, we’ll take a tour through the various “tools” deployed in legal arguments — principles like precedent, economic efficiency, justice, and the like. But for now, whew, thanks for staying with me.

Ideas are cheap, and I'm giving them away - Part 1

If I were developing content for one of those Home, Garden, and Food cable channels, where people build each other’s porches, chefs cook Donut Hamburgers, and hipsters are followed by cameras as they travel across the country sampling onion rings, there’s a show I’d greenlight right away:

BrunchHunters

You’re welcome. (The ideas only get better, but no less free, from here. Stay tuned.) Acknowledgments to Matt, Erica, and Meredith for their contributions toward this world-class, next-gen cable concept.

Five Xboxes

In today’s New York Times, Amy Chozick reports on the “whiter collar” approach to cable guys that cable companies are taking. Two things. First, check this out:

Quirino Madia, a 46-year-old supervisor for Time Warner Cable, recently set up a system for Selene Tovar, 35, a stay-at-home mother of three.

She needed the Internet service at her three-story home in New York’s Chelsea neighborhood to be fast enough to power the family’s six televisions, five Xboxes, several PlayStations and multiple iPads and laptops. Even a new scale — a Hanukkah present from her husband — required a fast connection so it could send daily weigh-ins to an iPhone app.

I don’t even know what to say. So I’ll just leave that right there.

Second, the article refers throughout to “high tech” installations that are complex because of the sheer number and variety of devices that will be sharing the connection. This is, of course, nonsense. When you “install” a router, it makes no difference whether it talks to five Xboxes or a single laptop. (Yes, I get that some of these providers may be setting up each device, and maybe I’m out of touch with how difficult it is for some people to connect an Xbox to a wireless network.)

The one job that we want our cable-based Internet to do is to provide a working Ethernet cable to our wireless router. If the cable company wants to sell wireless routers on the side, fine. Nothing they do, however, should be more complex on account of my having two dozen iPads in the house rather than a single, beige Packard Bell in the basement that plays the latest CD-ROM games, runs Napster, and surfs the geocities homepages on the World Wide Web.

But, you see, the cable companies want to delight us with high tech magic, not just provide a dumb pipe:

“We think the consumer wants a state-of-the-art experience,” Brian L. Roberts, Comcast’s chairman and chief executive said, as he showed off the company’s forthcoming partly cloud-based cable box with the internal code name of Xcalibur.

Sure, I get it. The cable companies don’t want to be the water company. They want to be in the content business, and they’re afraid if they don’t move quickly that they’ll be the next RIM, while Google, Apple, and others take the higher-margin content-delivery business. This is all an artifact of a time when cable was content and when it was not possible to get your data feed from one company and all your content from another. Now, however, I don’t need my internet provider to do anything other than provide fast internet service.

With any luck, technology will come around that creates a real market for commodity internet providers. Until that happens, I think we should let these companies choose. Either you get to be a local monopoly providing data service OR you get to sell content. It looks like we’re about to see what happens when large corporations that have local monopolies, a history of poor service and high prices, and a perfect track record of producing the world’s worst user interfaces get into the cloud-based “state-of-the-art experience” business.

Shutter Island

This is not a review. It’s not really a defense or even exhortation to see the film. This is what it is, and Scorsese’s Shutter Island has stayed with me in the year since I saw it. It’s perfect. Not that there could never be a “better” film or that in some other time and place I may not prefer another, but it’s an insanely ambitious work of art that is the perfect realization of what it set out to be.

If you haven’t seen the movie, I guess you should stop reading. But before you do, be sure to check out the music that plays over the closing credits (with headphones or a good set of speakers). It is the synthesis of “This Bitter Earth,” a 1960 Clyde Otis song performed by Dinah Washington, and a 2004 composition, “On the Nature of Daylight,” by Max Richter. There’s surprisingly little I could find on how this mash-up came to be, other than that it was arranged by Robbie Robertson, singer, songwriter, guitarist, and longtime Scorsese collaborator. The result is the closest thing to an original composition on the soundtrack. Robertson and Scorsese have filled the movie from end to end with an excellent selection of modern classical music, juxtaposed with some 1940s and 1950s popular songs. This final song brings those two strains together in a way that’s nearly impossible to believe from listening to the two sources separately.

I have only seen Shutter Island once. While I’m planning to watch it again in the next few months — some friends and I are watching all of Scorsese’s films in order, fun stuff — what I have in mind now, is just the impression left a year ago. I’m assuming that you’ve seen the movie too. Here goes.

The film is a technical tour de force. The cinematography, lighting, sound, editing — everything works precisely as Scorsese must have intended. The whole production is just brimming with confidence. Every piece of it contributes expertly to its goal. From the bold music on the boat, the fog, the darkness, all delivering an intense sense of mystery and mood, you know that you’re being spoken to by a master craftsman of the medium.

While every review I’ve read at least acknowledges this much, many critics turn negative after doing so. The main complaint seems to be that the film contains too much pointless misdirection for a payoff of limited value. Here’s A.O. Scott writing in the New York Times:

Mr. Scorsese in effect forces you to study the threads on the rug he is preparing, with lugubrious deliberateness, to pull out from under you. As the final revelations approach, the stakes diminish precipitously, and the sense that the whole movie has been a strained and pointless contrivance starts to take hold.

And Michael Phillips in the Chicago Tribune:

Scorsese’s job here isn’t direction: It’s redirection and misdirection. That’s all there is to this thing: mazelike fun and games, without the fun.

Of course, they’re correct that we’re forced to confront mystery after mystery. But is it pointless? And what of all the bombast, the loud notes, the general lack of restraint. Is it simply gratuitous, the spectacle of a virtuoso showing off through the means of an overly caricatured noire?

No. These mazes we run through, these misdirections, the extreme mood and emotion, all these are the complexities and passion found inside Teddy’s head. The movie, from beginning to end, is not only about a character coming to grips with his own mind, relearning a horrible truth about himself and his life, but I think it actually depicts Teddy’s mind. The images on the screen draw up a narrative MRI of a broken brain. The fog in the beginning, the delusion of searching for one thing in order to ignore another, the real and imagined inmates and inhabitants who urge him on, and the lighthouse as the goal with all the emptiness that follows a search for a missing but intensely miswanted thing. The movie quite obviously is dream-like, even when it’s not showing us Teddy’s dreams. And what else is a dream but the desperate attempt of a part of the brain to make sense of the stream of information flowing into it. A dream is the perception and ordering of the unreal as the subconscious sorts itself out.

None of this is immediately apparent. The movie works as a wonderfully inventive and skillfully shot detective story for most of its running length. To criticize it for having a twist that was overly telegraphed is perhaps a criticism of its effectiveness as such a story, but it is also to miss the point entirely.

You are supposed to suspect, though perhaps not be entirely sure of, what will unfold at the end. If you’re at all like me, you saw it coming but positively rebelled against it. I desperately wanted the ending not to be true. Even though I guessed the movie would end as it did, I still cast about for an explanation that would make the hospital staff all liars. Oddly, I wanted an explanation that would reduce the movies to an excellent thriller. I looked on the internet for theories like the ones I had in my head, but the more I thought about it (and read), the more I became resigned to accepting that it had indeed all been a ruse. (The skill in making the movie work so truthfully whether you know the ending or not is breathtaking. What to make of the odd disinterest of the staff, the fire, the water, the Platonic cave in which Teddy sees and hears only the shadows of reality made by his own mind - and so much more? It’s just marvelous. The wartime memories that mean one thing and then another. I’m restraining myself not to go on about it.)

In the end, the movie did something absolutely amazing: it made me feel, deeply, deeply feel, just like Teddy himself as he reacted to the moment of realization. I’ve seen films that have expertly transported me to other times and places, to other cultures, in the middle of romances, films that have injected me with adrenaline, and films that have otherwise moved me deeply. But I have never seen a film that has so deftly put me inside the agonized mind of another human being, and all the while doing so without explicitly asking me to empathize with the real Teddy. Yes, it moves you and interests you in all the usual ways that an expertly crafted story can, but its very design causes your mind to synchronize with Teddy’s without consciously realizing it’s happened until the very last minute.

From where I sit, Shutter Island is not only Scorsese’s finest achievement, it’s our greatest film.

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

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

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.

This Land Is ... Well ... Our Land

Snapped this a couple of years ago in a gas station bathroom in North Carolina:

English speakers: This is your bathroom.

Spanish speakers: Don’t pee on the floor.

Law's Not That Hard

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

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.

This...

will be a blog.