Why Separate Knob?!

On January 10, 2012, an iPhone sounded the famous “Marimba” alarm. You know the one. Unfortunately, this iPhone belonged to a man seated in the front row of the New York Philharmonic, and the orchestra was in the middle of Mahler’s Ninth Symphony. The conductor, exasperated, let his arms fall to his side, silencing the music. For an uncomfortable period thereafter, the only sound in the concert hall was Marimba. Pure poetry. If you missed it, you can read Daniel Wakin’s report in the New York Times or, through the magic of the interneteratti, enjoy a simulation.

Considerable debate among technology bloggers I follow has erupted over this incident because of one fact. The concertgoer’s iPhone was “silenced” with the “mute switch.” Naturally, this poses a question. Should alarms sound even when a phone is set to mute? Marimbagate (yes, I said it) surely points out the downside to alarms sounding when the phone is muted, and your initial reaction might be, like that of Andy Ihnatko, mute means mute. When the switch is set to silence, the phone should make no noise under any circumstances.

This problem is more general than phones or even technology. It’s inherent in the design of complex systems with many, heterogeneous users, whether they be legal systems, computer networks, or ubiquitous, mass-market devices. What to do when any choice of system behavior will at times deliver unexpected results but where meeting expectations is the goal? This particular controversy illustrates how a device in the head is different from a device in the hand and how a seductively clear and simple rule may turn out, in the hand, to be the less desirable one.

In the abstract, Dan Benjamin’s argument is compelling: “Physical settings should always trump and override software settings. If you’ve flipped a switch, you’ve told the iPhone something very important, just like when you flip a switch in the real world.” Further, he argues, the behavior should mirror that of real switches, like light switches, in that the switch should completely disable the system you’re trying to turn off. Mute means mute, as he titles his post. “When I ask the iPhone to be quiet, I’d really like for it to be quiet and stay quiet until I ask it to make noise again, and I think most people expect the mute switch to mute everything.”

As Ihnatko puts it:

I should slide the switch to “Mute,” and then the phone goes SILENT. If I miss an appointment because I did that, it’s completely on me. If my phone disrupts a performance despite the fact that I took clear and deliberate action to prevent that from happening…that’s the result of sloppy design. Or arrogant design, which is harder to forgive.

… .

[T]the right answer seems clear. The iPhone must never let a user down the way it let down that man at the philharmonic.

But the iPhone, and many similar devices, are designed to let such a user down in order not to let other users down. As Ihnatko acknowledges, the simplest solution will inevitably result in users’ not waking up on time, missing flights, and otherwise having their expectations foiled in situations where they really didn’t want mute to mean mute. As Marco Arment summarizes, the iPhone mute switch mutes all sounds except: (1) Sounds in the Movies or Music apps when you play a movie or song. (2) Third party apps that explicitly choose to ignore the switch but only if the app is in the foreground, the one you’re currently running. You can hit the sleep switch and the sound will play, but if you exit the app by hitting the Home button, the sound will not play. (3) Alarms and Timers set in the Clock app. (But not Calendar items.)

In each of these three cases, you, the user, are explicitly telling the device to make noise. The design problem is to figure out whether that instruction or the instruction to remain mute should be ignored. The simplest answer, and the most conceptually appealing, is to respect the switch, turning all sound off. In any system, a simple answer that delivers desirable results is preferable to a more complex answer. But sometimes conceptually simple solutions have unintended consequences. And the solution that is more complex conceptually (in the head) is simpler and better in practice (in the hand).

So here’s the downside to mute meaning mute. Suppose you use your iPhone as an alarm clock, as I do. Suppose you also either generally mute your phone, as I do, or at least do so at night to prevent notifications from sounding at 2 a.m. Your alarm would not sound if the mute switch were on. To silence my phone but allow the alarm to sound would require me to unmute the phone and put it in airplane mode — so that no other notifications would come in. The simpler solution is, for me, more complex.

In the head, the device should obey the conceptually simple rule. In the hand, most users expect the device to follow a more complex rule: mute everything except the things I expect to make noise. The iPhone, in my view, obeys the more complex rule that makes for the simplest user interaction. I want my phone to wake me up in the morning and vibrate instead of ringing for phone calls, texts, emails, and the like. The design choice is the simplest rule that matches general user expectation, even if that expectation is not the simplest conceptually.

Let’s think about what has to happen to create a Marimbagate. First, you must have an iPhone, go to the Clocks app, and set an alarm. Second, you must be somewhere where you do not want the alarm to sound at the time you set it to sound. Third, you must be unaware that alarms will sound despite mute and also not have turned the phone off. Fourth, you must, despite having set the alarm, not know how to silence it. Marimbagate only happened because the user had an iPhone he didn’t know how to use that had been given to him with alarms set (for odd hours) by someone else.

How often will that happen compared to the frequency with which people want to use their phone as an alarm clock but still otherwise be silent? I’d lay a large sum that the latter is far, far more frequent. This is John Gruber’s conclusion as well:

You can’t design around every single edge case, and a new iPhone user who makes the reasonable but mistaken assumption that the mute switch silences everything, with an alarm set that he wasn’t aware of, and who is sitting in the front row of the New York Philharmonic when the accidental alarm goes off, is a pretty good example of an edge case.

Whereas if the mute switch silenced everything, there’d be thousands of people oversleeping every single day because they went to bed the night before unaware that the phone was still in silent mode.

I’d go further than Gruber. I bet that most new iPhone users if asked what the mute rule was would respond with “mute means mute.” They would be responding to a question about the right conceptual model. But if you measure their expectations from the way they actually use the device, then you’d see they expect the device to behave pretty much the way it does. The simplest rule, so clear and easy in the head, doesn’t take account of how most people would live with it.

This distinction, between thinking abstractly about rules and considering their consequences, is apparent in the law as well. In the abstract, many people prefer simple solutions like border fences to keep out all illegal immigrants and stiff penalties and deportation for those who get through, but faced with an actual person caught up in such a system, people’s views tend to change. Sentencing a real person to prison or death is far, far different from determining what the right punishment would be for an abstract criminal. Hard-core libertarians are famous for conceptually simple solutions that fail to take account of how life is really lived. In the head, law is easy, but in the hand, we naturally, and more simply, latch on to a more complex calculus for what the rules should be.

Back to the iPhone, well how about settings? Let users, when they set an alarm, further specify whether that alarm should sound when the phone is set to mute. Yes, settings, the solution to every problem on which users might differ, right? More choice is better! Not necessarily, yet again the conceptually simple solution to heterogeneity — choice — fails to take account of what is practically simple. Yes, the introduction of this one setting might not be a big deal. But the mode of thinking that sees every heterogeneity in use as a mandate to introduce a choice, well, there would be no end to it. That way lies disaster, like this and this. An interface littered with choice is one dripped in sadness.

Ihnatko believes that if there are such settings, the default should be that the mute switch silences explicitly set alarms. It seems to me that settings, regardless of default (and I think Ihnatko’s choice of default would exacerbate this), would lead to am/pm and “separate knob” mistakes. You start with the simple, conceptual model, and then to accommodate how people actually use the device, you add settings and choices. But now you have a device that matches no one’s conceptual or practical model but is instead something to be configured. In the immortal words of Jean-Paul, “Why separate knob!? Why separate knob!?” In an instant, Seinfeld gets to the heart of it.

This Thing I Made

Textbooks suck. They’re heavy, difficult to update, expensive, in a fixed order, rarely (excepting some graduate and professional school materials) written by leaders in the field, and too often ridiculous compromises reached by less than competent state committees. A few years ago, I built HydraText.org, which made it possible to solve these problems by giving to teachers the power more easily to build and share their own textbooks. Next week, Apple just might introduce software that solves them for everyone else.

Textbooks Are Playlists

Think about what a textbook is and how you’d build one. There really isn’t much difference between making a textbook and a playlist in iTunes. With music, you put your songs in order. Once you’ve done that, you can burn the playlist to a CD (I said “can” not “would” - it’s not 2001 anymore), listen right on your computer, or sync up the playlist with your phone. So you build it by choosing and ordering songs, and then you output it in various ways.

Same thing with textbooks. You make a table of contents, and under each heading, you put contents. Traditionally, textbooks could only be bought as complete works and in a single format. The teacher or professor would choose a book. The students would then pay whatever it costs and lug it around. The prof then has a choice whether simply to teach the book in order (just play the playlist the publisher shipped) or to try to adapt the book to the class he or she actually wants to teach. Most of my favorite teachers did the latter and would also supplement the book with other materials, some from other books or journals and some of their own notes or other writing.

The actual course book, then, would be another playlist, one laid out in the syllabus, which specifies how the units of content are ordered. First, read this, which can be found here. Then read that, which can be found there. The physical textbook is, in this model, a sourcebook, one among a library of materials from which the virtual course book draws.

There must be a better way. What we want are beautiful, high-quality textbooks, customized to the course the teacher wants to deliver, at low or no cost to students, and available in a range of convenient formats. Getting this right requires a different information-sharing architecture than existed when I first decided to build HydraText.

Many to Many

The best example of shared production of written content on the internet has probably been Wikipedia. The whole idea of a wiki is that a great many people can collaborate to produce a single thing, an encyclopedia for example. Some tasks lend themselves to parallel effort like this, and others don’t. For textbooks, there is Wikibooks, which has essentially the same architecture as Wikipedia. Many people cooperate to produce textbooks.

But that’s not good enough. A teacher wants to produce the perfect textbook for him or her, and at the same time to take advantage of others’ work producing similar materials. We need software that permits many people to collaborate to produce not a single, definitive thing, but many customized things.

Here’s the HydraText solution. Every teacher has an account. And each subject has its own space (or Hydra, as I call it). You can upload or enter individual units of content, which I call Articles. These can be law cases straight from Google, your own text, ideally in John Gruber’s Markdown format but it’ll handle Word documents and other formats as well, PDFs, or even items from the web you’ve saved in Instapaper. You can build a Textbook by creating a table of contents and then adding Articles to each heading. You then hit a button, and out comes a web, ePub, and PDF version of your textbook.

But the real potential lies in sharing. You see, no one else can change your book, like they could if it were a wiki. But they can copy it, make it their own and rearrange the chapters, add more content, or delete content. They can take a chapter of your book, add a chapter of someone else’s, and add some of their own content. And they can build their own book using Articles you and others have added. This is the origin of the name HydraText, the tiny freshwater animals that can grow into whole new animals if cut into pieces.

An iTunes Education Store

My main goal with HydraText was to permit people to cooperate on producing customized texts. The result is an iTunes-style process for building a playlist from content you provide or that already exists in the Hydra. To extend the analogy, HydraText is meant to provide an iTunes Store filled with content in your subject area.

This content has the potential to be much better than what the textbook industry now produces. As it is, to author a casebook is a monumental undertaking. You likely need co-authors and research assistants. A Nobel Laureate, for example, is unlikely ever to take up the task of authoring a Biology 101 textbook but might enjoy writing a terrific section dealing with the heartland of his or her research. Just think of all the supplements teachers at all levels have prepared for their classes and that remain only in file folders, unused by others. By reducing the unit of meaningful contribution from an entire book to a single Article (however short), the HydraText model holds the potential of global use of better learning materials than have ever been produced.

Incidentally, although I haven’t added this feature, there is no barrier to letting users set a price for their content. And so the analogy to the iTunes Store gets even closer. Most materials shared would probably be free, like podcasts, but great content might be worth paying for.

Here’s an example of a textbook, a website from which students can browse the book directly or download a PDF or ebook. This particular book lacks audio, video, or images, all of which are possible, but it gives you an idea. I haven’t used a commercial textbook in years. In the past, my students generally wanted printed copies, and so I’d arrange a group rate with Kinko’s (now Fed-Ex), for maybe $10 for an 800 page book. This year, I’m just beginning to see more students prefer digital-only versions. However they consume it, the choice is theirs. They can read it on their phones, in a three-ring binder, on a tablet, or in a web browser.

What’s Apple Going to Do?

Back in January of 2010, about a week before the iPad was released but when it was clear a tablet was in the offing, I emailed Steve Jobs to tell him about HydraText. I had no idea whether he’d even see it (he did), but I wanted him to know just how important the tablet could be for breaking the textbook logjam. I didn’t hear back from him, but, obviously unrelated to anything in my email, we now know that Jobs had targeted the textbook industry as the next to be revolutionized. According to Isaacson’s Steve Jobs biography (another topic but if you’re at all interested in Apple or Jobs, you owe it to yourself to listen to this), he apparently wanted “to hire great textbook writers to create digital versions, and make them a feature of the iPad. In addition, he held meetings with major publishers, such as Pearson Education, about partnering with Apple.”

On Wednesday of this week, Apple issued an invitation to the media to gather at the Guggenheim Museum in New York on Tuesday, January 19 of “an education announcement.” According to the New York Times, the “event will showcase a new push by Apple into the digital textbook business, but will not feature any new devices.”

I think we can assume, at least, that Apple is planning to make textbooks easy to acquire and to consume on the iPad. It’s a reasonable guess that Apple’s solution will use the ePub3 standard, which would allow richer ebooks with more interactive features. But what architecture will Apple pursue? Will they treat textbooks like they do music, where Apple has made deals with the major publishers and features them on something like the Store where they can be easily downloaded? Would there also be something like podcasts on the Store, where teachers can, perhaps using Apple tools, produce and place their own materials, where their students can easily find it. Or could there be something more, a place for more than just books, but some Apple version of MIT’s Open Courseware, where whole courses live, and where the book is just an integrated piece?

My gut, and that’s all it is, tells me Apple will release new reader software, maybe standalone or maybe a new version of iBooks, on the iPad that allows for deeply interactive textbooks, which it will provide on iTunes free or very cheaply. I’m less certain about book creation tools. The Jobs model, from the limited quotes available and from what we know of his preferences and approach in other industries, would seem more likely to be making available beautifully made, professionally produced materials, rather than the tools for open-source-style collaboration.

But perhaps HydraText will become obsolete because Apple provides better production and collaboration tools. That will be so if Apple sees the essential value of customization and production in education. Perhaps, though, HydraText will become even more useful if Apple only provides a better reading platform and supports the richer books HydraText could be used to produce. Quite honestly, whichever they do will be fine by me. I’m a teacher first, and what I really want is the best possible experience for my students.

I’m excited, though, because we’re on the cusp of changing everything. My son now carries to school a backpack filled with tens of pounds of static books and a ridiculous, boxy Thinkpad in an even more ridiculous carrying case. All this is about to be disrupted.

I remember being in law school and having a class discussion about technology prediction. Electronic books and videophones were held up as examples of technology that people always predicted would soon arrive but which never did. For ebooks, the claim was that there were fundamental reasons for their inferiority to paper books. I argued that this was only a matter of display technology and that the advantages of electronic processing, storage, and display would become overwhelming with time. I have been wrong about a great many things in my life, but that was not one of them.

When We Were Heroes

Abney, my daughter, back when she was three, in conversation with a close family friend, and processing the deaths of our dog, Mag, and my wife’s mother (who died years before Abney was born). And after listening to and singing a lot of Johnny Cash with me.

Abney: Mag died.

Friend: I know. That’s very sad, isn’t it?

(pause)

Abney: Mommy’s mom died.

Friend: Yes, that was very, very sad.

(pause)

Abney: Johnny Cash died.

Friend: (pause) Yes, and that’s sad too. But not quite as sad, because we don’t know Johnny Cash.

(pause)

Abney: (confidently) Daddy knows Johnny Cash.

Anniversary Post: Against True Love

My twentieth wedding anniversary was last week, and we finally went away together to celebrate. Ergo, the lack of posting. While sipping mojitos and relaxing by the beach, I kicked around this post for awhile, but kept putting it away and hating it as pablum. Even if it is, it’s an antidote to other nonsense I used to believe. So here goes. Maybe I can combat, even a little, the dangerous, malformed view under which I labored as a young person. For me, growing up meant gradually letting go of lots of comforting ideas and learning how to embrace reality. This is about one of those: true love.

You’re either groaning because you think true love is such an absurd idea that it’s essentially a straw-man or because you’re pained that anyone would lead the empty life of a romance-atheist. These antipodes, and I’ve experienced the eye rolls from each, are yet another instance of the opposing forces always at play when working out our place in the universe. Is our position privileged or not? And if it’s not, what’s the point?

True love, soul-mates, destiny, all of these are ways of describing a deeply embedded but wildly destructive cultural myth. Your partner is that one person for whom you were meant and whom you really, really love, the one who makes your heart beat faster, the one who is supposed to be so close as to be a part of you. It’s psychologically comforting. It affirms our specialness and provides an aura of security so unbelievably tempting in this life that seems otherwise perilously close to being cast adrift in rough black seas, at night, alone. Even if we don’t believe in the Myth, and most people probably don’t intellectually, we may grasp onto it in dark times. Some days we just need it to be true.

You probably already know all I’m about to say in response and are wondering why I thought it worth writing down. Well, it wasn’t obvious to me as a young person, and I know too many others sabotaged by an attachment to some part or other of the Myth. Our culture, our movies, our music, and our books are filled with it. Marriage ceremonies too often pretend simply to recognize true love’s existence. We’re overrun with the message that love is something that happens to us, that we either feel or don’t. I’m convinced that this belief, even if only subconsciously entertained, causes too much suffering to be ignored.

The answer to the Myth’s seductive promise is to be mindful of reality. There are thousands of people out there with whom you could fall in love. Thousands and thousands. If you were in a boat with forty random people and shipwrecked on an island, you’d probably fall in love with one (or more) of them eventually. The supply of people with whom we could fall in love is vast, and we’ll keep meeting members of this set throughout our lives. Obvious, yes, but dangerous to deny.

For me, love is not faith in the idea that the universe has delivered to me my one, true companion. Rather, it begins with the adherence to a wager, the most important choice I’ve ever made. I’m betting that this single, precious life will be best spent with a single, compatible person. Again, the wager is this: life will be better lived with steadfast commitment to one partner than with one’s devotion lurching from person to person, wherever the sensation of love takes it. I can’t tell you whether this is always the right choice, but it is mine.

Love starts, of course, with biologically-driven infatuation. But the body will keep doing that to you, if you let it. Every time you meet a new member of the set, if you leave open the possibility, infatuation will lay in its hooks and begin to do its work. Part of love is deciding that you will not let this happen, that you will draw boundaries so broadly that you never give infatuation with another a fighting chance to become something more and so broadly that your partner is never asked to wonder whether you’re still together in all this. It’s your obligation to reassure. Deep and whole-hearted sharing of a life, my definition of love, cannot really happen without that security.

I wish I’d understood marriage this way from the start. You grant each other the luxury of knowing that your loyalty will not depend on a day-by-day calculation of competing desires. If you’re guided by momentary calculations of happiness, you’ll sooner or later jump ship. That’s human nature. But together you’ve made the long bet. And once you’ve both committed to that, truly committed to irrevocability, infatuation with each other never really goes away for long.

After twenty years, the love I have for my wife is not at all how it began. My feeling of it is inextricably bound to our shared history. Whether either of us could have been happier with someone else is not a relevant question. That’s a life we didn’t lead. We’re betting not that we’re happier together than we would have been with any other people in the world, but that we’re happier living irrevocably together than conditionally, and thus, in a real sense, alone. Soul-mates are made, not born. And we are soul-mates, because we choose to be.

The power of the Myth of true love lies in the assurance it provides that our seemingly secure lives are destined, that our love is embedded right in the moral fabric of the universe. Life is a story we’re living out, a movie in which we’re the sympathetic hero. But what happens when what you feel isn’t the “outside this universe,” timeless, emotion as the voice of God, overwhelming conviction that you’re in love, when you don’t feel that electric jolt of infatuation for your supposed soul-mate? Well, then how could this person really be your soul-mate? If he or she were, there would simply be no way you could have the feelings you do for someone else. The people in the movies sure don’t seem this ambivalent about the love they find. So your soul-mate must still be out there somewhere, and, obviously, this relationship must end for the next one, the destined one, to begin. But that way lies sadness, because love is not a sensation, but the sharing of your one, precious life. Don’t waste it trying to chase a phantom. Love is yours to choose.

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.