A Good Idea Lost in the Weeds?

This may come as a surprise to you, dear reader(s), but I have not exactly spent my free time over the past several months pouring over the position papers and the like of the GOP presidential candidates. West Virginia’s primary is closed, and I’m not a registered GOPer, so aside from the entertainment value of watching them cannibalize each other, I’ve got no reason to spent a lot of analytical sweat on any of them.

So imagine my surprise when one of those GOP aspirants who has fallen by the wayside, Rick Perry, appears to have picked up on an interesting idea. Yes, I’m talking about this Rick Perry:

At Rancho Perry, every day was Oopsday. Along the trail, he forgot how many Justices the Supreme Court has (eight is not enough); forgot the name of one of them (Sonia Sotomayor); placed the American Revolution in the sixteenth century; identified the voting age (fixed at eighteen four decades ago by constitutional amendment) as twenty-one; and suggested that the chairman of the Federal Reserve is a traitor, that Turkey (a NATO ally of sixty years’ standing) is governed by Islamic terrorists, and that Social Security is not only a Ponzi scheme but also a criminal enterprise, a monstrous lie, and unconstitutional. And there’s this whopper, from his farewell speech: ‘As a former Air Force pilot, I don’t get confused.’

The idea is to amend the Constitution to remove the life term for Supreme Court justices and switch to one-time terms of 18 years, with a new justice being appointed every two years. It’s not Perry’s idea – law professors have been kicking it around for years – but he’s the first politician I’ve heard to pick up on it. The theory behind it is two-fold.

First, by making Supreme Court appointments more regular and more frequent, the rancor and partisan warfare that springs up around them would lessen. At first blush, that makes some sense. The chance to appoint a Supreme Court justice would no longer depend on an odd synergy of fate and political expediency. Every president would get his or her chance to appoint justices, at least two, during their time in office. Regularity would lead to a smoother process.

Given the current political climate, I’m not sure how far that idea would get in reality. Judicial vacancies in the lower courts happen much more often than Supreme Court vacancies and, given their subordinate role, ought to lead to less political rancor. The opposite is true, of course. Individual judicial candidates for the courts of appeals or district courts rarely get the kind of spotlight that potential justices do, but they still get held up by simple partisan bickering. Furthermore, the way in which regularly occurring political events (like, say, agreeing on a damned budget) get turned into partisan battles of will suggests that the regularity of some event is no guarantee that it will go more smoothly.

Second, the constant churning of membership on the Supreme Court would lead to less ideological dogmatism. Fresh blood and new ideas, combined with the inability of partisan politicos to lock in a justice for a term lasting decades, would benefit the Court and the litigants who appear before it. It would also allow for a broader range of prior experience in the justices appointed. I’m all for that. Why, if we had to roll through qualified candidates every two years, we might even get a defense lawyer on the Supreme Court! Alas, that’s just a pipe dream.

As is, ultimately, Perry’s proposal. Not just because his own candidacy flamed out so spectacularly. Amending the Constitution is seriously difficult, for good reason. The idea that enough people could get fired up for this kind of structural change (as opposed to something issue specific) is laughable. I suppose once the overwhelming majority of the citizenry is so apathetic about the whole process a mobilized cadre of legal geeks might get it done, but that’s the stuff of fiction, as far as I can tell.

Still, props to Perry for putting the idea out there. I’m not certain of whether it has any ultimate merit, but it’s a least a serious and thought-provoking proposal. In a campaign filled with “9 9 9” and grand plans for new states on the moon, that’s something to be proud of.

Friday Review: Tabloid

Errol Morris is one of the most decorated documentary filmmakers of our age. In Standard Operating Procedure he probed the horrors of Abu Ghraib and the urge of the perpetrators to document their crimes. In The Fog of War he laid bare the soul of Robert McNamara, the architect of the Vietnam War. And in The Thin Blue Line, he dug deep into a Texas murder case (creating the documentary technique of reenactment in the process) and got an innocent man off of death row. The man makes deep, thoughtful films about deadly serious topics.

Tabloid is not one of those. Don’t get me wrong, it is thoughtful and feints at some broader themes and deep issues. But, really, it’s not destined to go down alongside those films as milestone work in Morris’s career. It is, however, a ripping good story based around one of those real life characters that Morris is so adept at finding (and getting talking).

The real character at the center of Tabloid is Joyce McKinney, who first came to Morris’s attention because of a news story about an ungodly amount of money she spent having her beloved dog Booger (no shit!) cloned in South Korea. The story contained a brief reference to her infamous past, which set Morris on the case. What infamous past?

In 1977, an American named Kirk Anderson was doing his Mormon missionary work in the UK. One day, he was “abducted” from in front of the local Mormon temple. He showed up in London a few days later, explaining that McKinney (with whom Anderson had been involved back in the US) kidnapped him, hauled him off to a cottage in Devon, chained him to a bed, and raped him repeatedly over the course of several days.

McKinney tells a completely different story, as you might imagine. It begins in the US, where after she and Anderson fell madly in love (to the disdain of Anderson’s faithful Mormon mother), he abruptly disappeared. McKinney assembled an odd team, including a private detective, a pilot, and a bodyguard from Gold’s Gym and, having tracked Anderson to the UK, set off to get him back. The pilot and bodyguard didn’t last too long in the operation. McKinney tracked down Anderson, whom she described as having been brainwashed into a cult. He willingly went with her to Devon and was a willing, if not altogether enthusiastic (due to his Mormon indoctrination about sex), participant in all that happened there. He “escaped” when they went to London to get married.

The case, dubbed “The Case of the Manacled Mormon,” blew up in the British media, and particularly in a pair of dueling tabloid newspapers. The Daily Mail threw in on McKinney’s side, paying her for her side of the story. The Daily Mirror, on the other hand, frozen out without access to McKinney, dove into her past in America and dug up all kinds of juicy dirt involving pornography and prostitution. McKinney and her accomplice eventually made bail and fled back the US (according to one article she was apparently convicted and sentenced in absentia, but extradition was never sought).

Tabloid is basically a one-sided narrative. The only direct participant in the affair who talks is McKinney – Anderson refused to be interviewed. Everyone else’s involvement either ended before the disputed events or they are relaying hearsay information. Given that, it’s fascinating that at the end of the film you’re left with more questions than answers about what actually happened. For what it’s worth, I favor a third hypothesis (between McKinney’s romantic tale and the purely criminal escapade) put forward by a former Mormon brought in for some context: that Anderson went with McKinney willingly, but somewhere along the way his conditioning kicked in, he regretted whatever happened, and claimed kidnapping as a way to cover it up. It is entirely possible that McKinney is seductive enough to reel him in, and crazy enough to scare him off (she was later arrested in the US for stalking Anderson – and has sued Morris!).

In the end, Scott Tobias over at the Onion AV Club sums things up well:

McKinney may well be a madwoman, but Morris connects so deeply to her obsessions that the film’s tone never seems exploitative or mocking. Mostly, it’s just endlessly curious in the familiar Morris way: curious about another in his career-long gallery of eccentrics, curious about British tabloid culture, and curious about how radically stories are distorted, both by outlets looking for an angle and by individuals who reserve their greatest deceits for themselves. Tabloid is tonally removed from something like The Fog Of War, but in the end, McKinney and Fog subject Robert McNamara are each trying to control narratives that are out of their hands and have a complicated relationship to the truth.

And that’s always fun to watch, if nothing else.

And now, because I can’t hear about British tabloids without thinking of this song . . . “Paper Lies”:

The Details
-------------------
Tabloid
Released 2010
Directed by Errol Morris

Regulating the Pipeline to God

You’d think that, as an atheist, I wouldn’t be concerned about how the state dealt with the internal affairs of churches. Don’t have a church, so why should I give a rat’s ass? But that’s asking the wrong question. It’s like not worrying about the shredding of the Fourth Amendment because you’re not actually doing anything wrong and thus have nothing to hide. There are certain things we don’t want the state doing. Weighing the validity of religious doctrine is one of those things.

That’s the underlying concern evidence in a unanimous Supreme Court decision last week involving a private religious school, an ill teacher, and the EEOC. The church school was part of the Lutheran Church-Missouri Synod. The teacher, Cheryl Perich, was a “called” teacher (as opposed to a lay teacher), meaning she had been through religious training and was considered by the school to be part of its religious mission. She developed narcolepsy, which led to a dispute over whether she could continue to teach. When she threatened to take legal action, the school fired her.

Perich sued the church anyway (via the EEOC), for firing her based on her threat of legal action. The church sought to dismiss the suit by invoking the “ministerial exception,” a long recognized doctrine in the lower courts that said (in essence), courts won’t wade into a church’s internal business, particularly when it involves church doctrine. In this case, the church argued that by taking her dispute outside the church, Perich had violated its doctrine. And since she was a called teacher and, basically, a minister, the courts couldn’t step in and review the decision to fire her.

The Supreme Court, ultimately, recognized the ministerial exception as an outgrowth of the religion clauses of the First Amendment. Chief Justice Roberts, writing for the Court, surveyed the history of government interference in religious matters in England and the Colonies (my favorite, a missive from Henry II to electors of a bishopric in Winchester commanding them “to hold a free election, but forbid you to elect anyone by Richard my clerk” - It’s good to be the king!). Preventing that kind of interference was part of the reason for enacting the First Amendment’s religion clauses. Therefore, to the point that a court would be required to deal with issues of ministerial competence or what have you, courts have to stay out.

What the Court did not do (although the odd couple concurrence of Justices Alito and Kagan tried) was to provide some real guidance as to when this ministerial exception could be applied. A couple of inconvenient facts (one for each side) show how difficult it could possibly be to figure that out. On the side of the church, the inconvenient fact is that while Perich was a called teacher, her job description was identical to that of the lay teachers, who were not called, or even required to be Lutheran. Given that, why should Perich’s status of being “called” really make a difference? As for Perich, her unfortunate fact is that before this dispute arose she had claimed ministerial status in order to get tax benefits. While that doesn’t answer the question of her status, it at least makes it unclear enough to that caution dictates the courts shouldn’t wade into it.

It will be interesting to see how the lower courts grapple with the scope of the exception. Of course, they’ve been doing it for some time, so it might not be as vague as some are making it out to be. It’s also worth noting that, contrary to what I’ve read in some heated ‘Net comment sections, the decision does not allow churches to discriminate at will against any employee. Only those arguably involved in the church’s core function would be covered. Of course, how broad is any given church’s function? That’s the rub.

Ultimately, the religion clauses of the First Amendment reflect the same fear that the Free Speech clause does when it comes to state regulation. It’s not that bad things are done under the auspices of speech or religion that most people would want regulated. It’s that we don’t trust the state to sort correctly between the good stuff and the bad. Rather than risk the state getting it wrong, we let the market handle it, to the extent it can. Whether that’s born of some ideological position or simply a recognition of how the real world works, you get the same place in the end.

It’s often noted, amongst my unbelieving brethren, that religion isn’t an immutable trait like race, gender, or sexual orientation. Given that religious practice involves choice and free will, why should it enjoy protected status? Whatever arguments for or against that idea, in the United States the decision was made long ago. The First Amendment does put religion in a special place in our society when it comes to how the law deals with it. Maybe it shouldn’t, but it would take more than a Supreme Court case to change it.

Lyin’ Eyes (Redux)

Last year, I wrote about a case accepted by the Supreme Court that dealt with eyewitness identification. Specifically, it was going to address the issue of whether some kind of police misconduct is required before a court must exclude an out-of-court identification as unduly suggestive (the ID at issue in the case, all agreed, was not the byproduct of any police shenanigans). Defense attorneys across the country hoped that the Court might use the opportunity to seriously reevaluate the whole nature of eyewitness testimony, in light of all we’ve learned in recent years about how unreliable it is. Unfortunately, the Court, by a large majority, played things close to the vest.

The case, Perry v. New Hampshire, involved police responding to a report of car robberies in an apartment complex parking lot. When police arrived, Perry was found in the parking lot with a pair of car stereo amplifiers in his hand. He matched the vague description given of the person breaking into cars. As part of the investigation, an officer went to the fourth-floor apartment from which the initial call had been made and spoke to the caller’s wife, Blandon. She provided the same vague description. When prompted for further detail, she pointed out the window at Perry (who was standing with another officer in the parking lot) and identified him as the perpetrator. Perry was arrested. A month later, Blandon could not pick Perry out of a photo lineup. Perry was charged with theft and criminal mischief.

Perry tried to suppress that on the scene identification, not because the cops did anything wrong, but because the circumstances of the identification were inherently suggestive. The New Hampshire courts wouldn’t go along with that argument and, ultimately, neither did the Supreme Court, which affirmed Perry’s conviction 8-1.

Justice Ginsburg, writing for the Court, rejected Perry’s attempt to decouple the due process issue from the behavior of the police and focus solely on the reliability of the identification at issue. A major purpose of the suppression of an identification is to deter the police from engaging in improper conduct. Where there was no improper conduct, that purpose cannot be in play. Perry’s position would:

open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.

The court recognized Perry’s argument (supported by numerous amici) that eyewitness testimony is inherently unreliable, but concludes that the “potential unreliability” of evidence does not preclude its introduction and that confrontation, cross examination, and the like are adequate to deal with the problem.

The only dissenter was Justice Sotomayor, who seems to take more to heart all we’ve learned about eyewitness testimony over the years. She wrote that:

eyewitness identifications’ unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial.

Among the statistics she used to back up that claim is the staggering figure that 76% of the first 250 exonerations due to DNA evidence involved incorrect identifications by eyewitnesses (and, in some cases, victims). That’s not much better than our terrorist detecting skills I talked about last week.

I understand the reticence of the Court to step beyond regulation of police conduct when it comes to suppression of evidence. Unfortunately, eyewitness testimony still holds a much greater weight with average jurors, and the public at large, than science indicates it deserves. The traditional crucible of cross examination may not be enough, in the large body of cases, to deal with that. Ultimately, the responsibility may lie with the defense bar itself to educate the public at large.

Friday Review: The Sole Inhabitant

The further along I get when it comes to electronic music, the more I find myself getting into things I once that held no interest for me. As a child of the 1980s, I thought I had just about had enough of Thomas Dolby long before old enough to drive. Strange, then, that I’ve wound back to him and his music and find myself digging it quite a bit more than I would have imagined.

A few years ago, I read an article in Keyboard about Dolby. He was out on tour as a one-man band. Such things are treacherous, but it seemed if anyone could pull it off, it might be someone well schooled in electronic music. So I put The Sole Inhabitant, the CD/DVD commemoration of the tour, on the list of things to check out eventually.

I’m glad I did. Armed with a few synths, an awful lot of MIDI gear (including a 1940’s “impedance bridge” with the guts replaced with MIDI switchery), and a Macbook, Dolby fills out his songs in impressive fashion for just one guy. While there is a certain amount of “canned” stuff going on, based on my observations of the DVD he really is triggering most of the loops and samples in real time. Given the conceit of the tour, that’s to be expected.

Regardless, the whole thing is most impressive when Dolby takes a song and builds it from the ground up, as in “The Flat Earth”:

When it comes to electronic music, I still tend to favor the slow and moody to the more upbeat pop/dance stuff, so I generally dig the first two-thirds of the set more than the rest. That being said, there’s good fun to be had while banging out “Hyperactive” and “She Blinded Me Wit Science.” Besides, I’ve become quite fond of “Europa and the Pirate Twins,” for some reason.

As I said, this is a CD/DVD package, and although the track list for each is the same, they were recorded in different locations. The DVD, in addition to the music, throws in about a half hour total of fun and interesting intros, another half-hour interview with Dolby (who says some particularly interesting thing about Europe v. the United States and notions of history), and a brief tour of his rig. All in all, it’s one of the best concert DVDs that I’ve seen in a long time.

Details
------------
The Sole Inhabitant, by Thomas Dolby
Released 2006

Tracks:
1. Leipzig Is Calling (5:14)
2. One Of Our Submarines (5:39)
3. I Live In A Suitcase (6:24)
4. Flying North (6:02)
5. The Flat Earth (6:46)
6. Budapest By Blimp (7:57)
7. Windpower (4:25)
8. Europa And The Pirate Twins (4:21)
9. Hyperactive (5:22)
10. She Blinded Me With Science (4:53)
11. Airhead (4:51)

Players:
Thomas Dolby (everything)

In Which I Agree With *gulp* Gary Bauer (Sorta)

There are few people on the planet that I would say I disagree with more fundamentally – about religion, politics, or ethics – than Gary Bauer. Long a crusader on the religious right (and even a presidential candidate, for a while), Bauer pushes an agenda and holds beliefs that I find odious and disturbing.

‘course, as they say, even a blind squirrel finds a nut sometimes. Credit where it’s due, Bauer’s found one.

Article 6 of the Constitution states that (emphasis mine):

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Thus, nobody can legally prevent a Muslim, Mormon, or atheist from running for or serving in any political office. The First Amendment bolsters that provision and, through the Fourteenth Amendment, effectively applies it to the states. But it only applies to legal restrictions. What about personal ones. When I go into the polling booth, can I apply a religious test when deciding who to vote for.

Bauer says yes, in a recent USA Today column. And I agree with him, for a couple of reasons.

First, as a practical matter, it’s impossible to police what people think is important to them about a political candidate. As unethical as it would be to not vote for Barrack Obama because he’s black or Hillary Clinton or Michelle Bachman because they’re women, it’s impossible to keep people from making their voting decisions on those grounds. Thus, it seems more than a little pointless to harangue people for something over which you not only have no means to control, but no hope of ever controlling.

Second, Bauer is right that someone’s religious beliefs can say something about them and their fitness for office, although they may not. The important thing is to keep the focus personal, rather than general. The label that one gives to themselves when it comes to religion doesn’t necessarily tell you a whole lot about their view of the proper role of government or how best to solve problems facing the world today. One need only to look at the various flavors of Catholics who pop up in politics to see that being true. Current GOP non-Romney flavor of the week Rick Santorum seems to draw a lot of policy provisions from his Catholic faith, while others like John Kerry come from the same faith and reach radically different positions. In the end, it’s the positions that matter, after all.

That is where, for all his nice talk, Bauer goes wrong, for he does precisely what he argues we shouldn’t and paints with a broad brush:

Though I wouldn't vote for a pagan, I'd vote for a Catholic or a Jew whose policies reflect the traditional understanding of marriage and defend the sanctity of human life much more readily than I would vote for the man next to me in the pew who doesn't support those things.

This after, without any hint of irony, deriding Wicca as “involve[ing] magic, spell-casting and sorcery” (as if a religion involving talking snakes, virgin births, and people who come back from the dead doesn’t). In other words, there are some faiths that are so beyond the pale for Bauer that he wouldn’t vote for a person who espoused those beliefs. That’s silly. I wouldn’t vote for an atheist just because he was an atheist, why should I vote against a Christian, pagan, or whatever simply because they fit into that category?

I wouldn’t, for example, vote against Mitt Romney because he’s a Mormon (although he wouldn’t extend me the same courtesy). I’d vote against him because he’s a feckless flip-flopping douchebag who couldn’t find a principle if it was strapped to the roof of his station wagon shitting down the windows. Two completely different things.

Spot the Terrorist!

The dystopian world of Terry Gilliam’s Brazil is beset by random blasts of violence, explosions laid at the feet of unnamed terrorists. It’s the terrorist threat that drives the world’s administration, one that includes a department of torture with the deliciously euphemistic label “Information Retrieval.” But the film never really shows you any actual terrorists. It’s even brought up in a discussion between the main character, Sam, and the woman of his dreams (literally):

JILL: Who is this war against, Sam?

SAM: Well, terrorists of course.

JILL: How many terrorists have you met? Actual terrorists?

SAM: Actual terrorists? Well...it's only my first day.

That line’s played for laughs, of course, but there’s an uncomfortable truth lurking there about how much of any “war on terror” is really a PR campaign by the state.

That idea flashed through my head when I read the sickening numbers compiled by the ACLU about the inmates confined at Guantanamo Bay (via). It looks like lots of people down there have never met an actual terrorist, either. Of the 779 people detained at Gitmo since 2002, a whopping 92% of them were never al Qaeda fighters. Maybe that’s because only 5% of them were actually captured by US troops in the field. The bulk of them (86%) were turned in for a bounty.

The other numbers are equally depressing (the number of men detained who the Government admits it can’t any allegations against but continue to detain anyway? 46). But that 92% says more about the “war on terror” than just about anything else could.

Another Round for Fleeing Fucks

There is little doubt that no off the cuff utterance has lived as long in the American legal system as Bono’s remark, in 2002, during the Billboard Music Awards on Fox, about winning a particular award:

[t]his is really, really fucking brilliant.

That statement, along with similar deployment of “fleeting expletives” by Cher and Paris Hilton around the same time, launched a legal battle that’s about to be taken up by the Supreme Court for the second time in three years. When the Court hears oral arguments today in FCC v. Fox Television Stations, the court may dive headlong into an issue they were able to avoid in 2009.

At one time, such isolated utterances of one of Carlin’s seven dirty words weren’t enough to drive the fellas at the freakin’ FCC up the wall. That all changed, as they went after Fox and a couple other networks for the fleeting fucks. In its 2009 decision, a sharply divided Court held that the change in policy was not “arbitrary and capricious” and thus didn’t violate any administrative law provisions. The Court punted on the issue of whether the FCC’s policy actually violated the First Amendment.

On remand, the Second Circuit found that the policy violated the First Amendment because it was too vague. It’s hard to argue otherwise if read the disparate treatment of the same language in similar televised presentations. Saving Private Ryan with all its bad words (and, of course, violence, which bothers nobody) was just fine, but Martin Scorcese’s epic PBS documentary The Blues, in which real people spouted a few real expletives, was not. It’s impossible to make rhyme or reason of the FCC’s rulings in this area.

But that’s not all that is at stake tomorrow. Fox , and some of their amici, argue that the Court should strike down the foundation of any FCC regulation of naughty words on TV, the Pacifica case from 1978. That was the case in which the court held that the FCC could ban Carlin’s routine (which had been broadcast on radio), because of the pervasive nature of the broadcast medium. As the Fox brief makes clear, broadcast TV, while it was once pervasive, today is only a sliver of the media available to 21st-century eyes and ears. Given that reality, Fox argues that the FCC should have the same authority to regulate broadcast TV as to, say, the Internet or cable/satellite TV – which is to say none at all.

It will be interesting to see whether the Court goes that far, or simply smacks down the FCC’s policy on vagueness grounds. I’d like to see them go whole hog, but we’ll see.

For a much more in depth preview of the case, see Lyle Denniston’s write up over at SCOTUSBlog.

A Few BCS Thoughts

Tonight, Alabama and LSU will lock heads in the BSC Championship Game. Not only do they both come from the same conference (the same division, in fact), but they’ve already played this year, LSU downing Alabama in overtime in what was either a brilliant defensive game or a crushing bore, depending on which side of the 9-6 final your team was on.

Like many college football fans, I’m not really a fan of the rematch in the title game. I’ve always been of the opinion that if you don’t win your conference, you don’t play for the national title. But, again like most college football fans, I’ll tune in tonight and watch. The game’s like a drug and I’m a junkie, I’ll admit. Besides, the buzz of WVU’s crushing Orange Bowl win last week is about to wear off. Stewart Mandel has more on the conflicted feelings of fans here.

I will say this for the BCS – it is blatant about trying to do what no other championship game in the world really can, match the two best teams against each other at the end of the year. Think about it. Any playoff system only works in getting close to that matchup if all the favorites win and all the underdogs lose. But what we love about playoffs is that they are unpredictable. One year, a NFL wild-card team can win the Super Bowl. The next, all the wild-card teams get eliminated in the first round of the playoffs. In a BCS setup, Greece never wins the 2004 European Championship because they never even play in the final. At the end of the day, it’s what makes playoffs worth playing.

So the BCS is bucking the trend, which is admirable. But the errand they set for themselves is a fool’s one. How on earth can you pin down the “top” (whatever that means) two teams out of the 120 that play through the season? If two, and only two, teams wind up unbeaten during the regular season, that might be helpful, but doesn’t deal with the strength of schedule problem. And what about seasons like this one, where only LSU made it through unscathed? You play the same game with the 1-loss teams (see here for a good argument about Alabama and Oklahoma State filling that role). And what if the unthinkable happens – Alabama upends LSU, but only barely, and nobody ends up undefeated? It might be fun just to see what happens.

For the record, my biggest beef with the BCS is there is no way for any team to say “if we do X, Y, and Z, we will play for the national championship.” The best bet is to be undefeated, but even that doesn’t guarantee anything. At least in the NCAA basketball tournament each team as a path to automatic qualification. Something more objective would be a good thing (my setup: a playoff involving only conference champions and the highest ranked independent).

In the end, the current system, while obtuse and completely fucked up, is the one that college football fans largely deserve. It gives us the one big game to decide it all, the focal point of all American sports (even the World Series or Stanley Cup Finals we want come down to a do or die game seven, right?). But it does it in such a way that everybody is free to argue about it until they’re blue in the face, often without any real mooring to the undisputed facts.

Damn it, it’s an American tradition! Sort of like presidential elections. I’ll be watching those until the end, well past my bedtime, too.

Friday Review: The Confession

Regular readers know that I am against the death penalty. Not because of the inherent injustice in its application or because any human system is flawed and bound to make mistakes, but because I think it’s simply a power that the state should not have. That being said, one would think that would make me a receptive audience to a legal thriller based on the idea of the state of Texas executing an innocent man. I’ll admit that the heart is in the right place, but that still doesn’t make for a compelling piece of fiction.

Two deaths are at the heart of The Confession, John Grisham’s fictional treatment of an area he hit earlier in a non-fiction book, An Innocent Man. The first is the murder of a high school cheerleader named Nicole. The second is the execution, nine years later, of Donte Drumm, who, although convicted by a jury, is absolutely innocent of the crime. As a race-against-the-clock thriller, it has a lot of possibilities. Problem is that the clock runs out about two-thirds of the way through the book, leaving precious little of interest happening thereafter.

By that time, there is absolutely no doubt that Drumm was innocent. Grisham takes several of the more notorious bits of lunacy in death penalty practice over the years (many from Texas) and piles them up in one case. There’s the titular false confession, which is the result of hours upon hours of lies and pressure by cops. Then there’s the fact that the prosecutor and the judge presiding over the trial were sleeping together. Then, with the clock ticking down in the background, the last court that can do something to stop the execution shuts its doors promptly at closing time, even though Drumm’s lawyers have alerted them that they are on the way over with a last-minute filing. All of those things are ripped from the headlines, sadly. Putting them all together in one case, however, is just too much. Grisham doesn’t have a finger on the scales of justice, it’s more like a palm.

Political figures don’t fare much better than the legal ones. All during the book, we drop in on the governor of Texas and his two closest friends and advisors, his “communications director” (aka spin doctor) and chief counsel. The governor himself is a poll-driven political whore, but you’d expect that. What you might assume is the only reason Grisham gives him two advisors always in tow is that one of them might say something profound about what happens or offer some dissenting opinion. Alas, it’s all about politics with all of them. Nobody at all seems concerned that the state has killed an innocent man.

Here’s the thing. If you want to write a convincing fictional takedown of the death penalty, the structure Grisham uses here would work. Most wrongful convictions are a little more complex than this one, however, and you could use the period after the execution to unravel how it all went wrong. Grisham so tilts the playing field, however, that there’s nothing to unravel once the execution goes down. As a race against the clock it fails because, well, they kill the wrong guy. But as a thoughtful exposition of how such a thing could happen, it also fails.

Which is a real shame. Grisham is a big name author who could presumably reach some people who are not entrenched partisans when it comes to the death penalty. Maybe he will someday. He certainly won’t with The Confession.

The Details
-----------------
The Confession, by John Grisham
First published in 2010

Now There's A Defense!

I can’t imagine anything, aside from powerful psychotropic drugs, that would make Alvin and the Chipmunks: Chipwrecked anything other than 87 minutes of pure hell. Then again, my imagination doesn’t think of things like going to the theater and getting buck naked, either:

A Chicago man was arrested last week after being spotted sitting fully nude in the front row of a suburban matinee screening of Alvin And The Chipmunks: Chipwrecked.

96 other patrons were escorted out, probably by a SWAT team in full regalia, and the dude was arrested. But wait, he’s got a defense:

[The accused] reportedly told police he was duped into nudity not by those wanton temptresses of the Chipettes but by a woman who let him into the theater, told him to strip, and promised that she’d be there shortly to ‘have sex and do drugs.’

You know the old saw about how if something sounds too good to be true? Same applies to offers from women to meet up at a kiddie movie and get freaky. Or so I’ve been told.

But it’s all OK now. He’s in jail ($100,000 bond? Are you kidding me?) and will not doubt wind up as a registered sex offender. Which we all know is the key to being successfully rehabilitated and reintegrated into society.

Maybe I’ll Just Sit This One Out

It’s only the third day of the year, but already I know one thing about the upcoming year. I will not vote for Barack Obama in November.

I voted for him in 2008, willingly if not enthusiastically. Since then, it’s not the domestic policies that have led me to this point (although many of those aren’t great). It’s been the complete embrace of Bush-era terrorism policies that shifted more and more power to the executive and made review of the exercise of those power almost impossible. It was a bad deal when Bush did it. It’s not any better when Obama does it, just because he’s got a “D” next to his name.

This, finally, was the last straw for me (via):

President Obama signed the National Defense Authorization Act (NDAA) today, allowing indefinite detention to be codified into law. As you know, the White House had threatened to veto an earlier version of the NDAA but reversed course shortly before Congress voted on the final bill. While President Obama issued a signing statement saying he had ‘serious reservations’ about the provisions, the statement only applies to how his administration would use it and would not affect how the law is interpreted by subsequent administrations.

More details on the NDAA here. Although the powers it sets out have mostly already been exercised by this administration and the previous one, codifying them in the U.S. Code will make it all the more difficult to reign them in at some future point. And while Obama promises not to make full use of them (although there’s no reason to believe that, given his record in the area to this point), that doesn’t bind future presidents.  Ed at Dispatches has more on that angle here.

I’m aware of the counterarguments. That anybody the GOP will field in November will be worse, overall. There’s the rallying cry of “what about the Supreme Court?” I don’t disagree, but I can’t go along with that anymore. There’s only so far I can go when it comes to choosing the lesser of two evils. If my vote means anything (logic and sheer numbers says it doesn’t), it has to be cast with some integrity.

So where does that leave me? Probably sitting on the sideline, unless something interesting happens with a third-party candidate (sorry GOP friends – I’m not that far gone). Sometimes the only winning move is not to play.

Friday Review Year In Review

Nothing special to mark the end of the year, just a easy to navigate list of Feeding the Silence's accidental regular feature, the Friday Reviews.  Sorted helpfully by review type, just because I'm that kind of guy:

Music

• Snowtorch (2011)
• ROSFest 2011
• If (2010)
• Hybris (1992)
• The Wake (1985)
• Depois Do Fim (1983)
• Triskaidekaphobie/Le Poison Qui Rend Fou (1980/1985)
• Ammerland (1978)

Movies & TV

• Contagion (2011)
• Garrow's Law (2009)
• Anvil!  The Story of Anvil (2008)
• Paradise Lost: The Child Murders at Robin Hood Hills (1986)
• I, Claudius (1976)
• The Wicker Man (1973/2006)
• Paths of Glory (1957)

Books

• A Dance With Dragons (2011)
• The Destiny of the Republic: A Tale of Madness, Medicine, and the Murder of a President (2011)
• The Magicians (2009)
• "Why I Left Harry's All-Night Hamburgers" (1987)
• The Man in the High Castle (1962)
• Brave New World (1932)

More to come next year!

My Gift to You

Here's a little musical treat, for you and yours at this festive holiday season:

Carol of the Bells by Infinity Ranch

Because nothing says “Merry Christmas” quite like Minimoogs, Mellotrons, and Taurus pedals.

Yeah, look, I know it's not as rad as, say, Mr. Mackey's arrangement:

Mr. Hankey's Christmas Classics
Get More: SOUTH
PARKmore...

But I hope it has its own charms.

That’s it for Feeding the Silence in 2011 (aside from a housekeeping post late next week). I’ll be back in the new year with all sorts of stuff, I assume. I guess you’ll have to check back and find out, won’t you?

So whatever holidays you celebrate this time of year, may they be safe and joyous.

A War Movie Without the War

For years, I’ve seen ads for the play War Horse while I flipped through my New York Times on Sunday mornings. Never had a clue what it was about, but the imagery in the ads was striking. So I wasn’t surprised when I heard it was being made into a movie or that Stephen Spielberg was the one making it. After all, the man’s made a few war movies in his time.

Then, a few weeks ago, I saw an ad for the movie on TV, complete with excerpts from the obligatory John Williams score and a Christmas Day opening. Just based on what I saw, it involved a horse, a boy, and World War I. I turned to K and said, “a feel good Christmas-day movie about the cavalry in World War I? That’s an interesting choice.”

You see, World War I is where the cavalry went to die. Literally. The days of massed men on horseback were numbered as far back as the American Civil War, when smoothbore muskets gave way to rifled ones with greatly increased range and accuracy. By the time the First World War came around, the game was over.  Men on horseback were simply no match for machine guns. So how does one make a heartwarming movie in that milieu?

The answer for Spielberg was to ignore it. Seriously:

Despite stunning stagecraft that evokes the horror of war in general, War Horse keeps its focus narrowly on the boy-stallion relationship, saying little about the First World War itself. It sounds like the film treats the conflict in the same way. ‘I didn't pay a lot of attention to the first World War,’ Spielberg said in an interview earlier this month. ‘I didn’t know very much about it. And I also don’t consider War Horse to be a war movie. This is not one of my war movies. This is much more of a real story between the connections that sometimes animals achieve; the way animals can actually connect people together.’

To be fair to Spielberg, War Horse’s source material is a children’s book, so it’s not exactly the hard hitting meditation on the horrors of war those NYT ads suggested to me. It’s a boy-and-his-dog story (except the dog is a horse), not Full Metal Jacket. Nevertheless, it’s hard to call a move that takes place in the middle of a war zone and whose main characters are doing the fighting something other than a “war movie.”

None of which has anything to do with whether the movie is good or not, although at least one early review is not too kind. Kurt Loder called the experience of watching the film like:

being lowered into a vat of warm tears, there to remain for nearly two and a half freakin’ hours

and notes that the

movie so boldly old-fashioned that much of its true target demographic must be long dead, or nearly enough.

Ouch. Maybe I’ll pass on this one.

What Scares Me

I hate flying. I know, nobody really likes the whole rigmarole that is flying in the 21st century. Dashing through airports to meet connecting flights, since it’s hard, or outrageously expensive, to fly directly from one place to another.* Being crammed into a metal tube with hundreds of strangers whose theories on hygiene and personal space vary in ways unimagined in political discourse. The food sucks. No leg room. There’s always some dipshit who decided the right thing to do was to cram his grand piano in the overhead bin.

Then, of course, there’s the TSA.

But none of that is what really irks me about flying. What really makes me nervous (ask K – I gripped her hand so hard on the way to St. John last year I nearly cut off circulation) is the thought that should anything go wrong, I’m going to die. I know in my rational brain that air travel is an exceptionally safe mode of transit, more so than travel by car. But most of my car travel comes while I’m driving, which gives me some sense of agency over whatever happens. Besides, if you are actually in a crash, odds are better that you walk away from one in a car rather than one in a plane.

It’s the sense of having my destiny in someone else’s hands that really does it, I think. Particularly when you hear about things like this (via).

On June 1, 2009, Air France Flight 447 left Rio bound for Paris. Somewhere over the Atlantic, it simply disappeared. It wasn’t shot down or blown out of the sky by a terrorist. There was no report of some kind of freak structural failure. It just went down, killing all 228 people on board. The wreckage was found two miles below the surface of the ocean.

At first, based on a little bit of data collected by tracking stations, one theory of what happened emerged:

As [Popular Mechanics] found in our cover story about the crash, published two years ago this month, the data implied that the plane had fallen afoul of a technical problem—the icing up of air-speed sensors—which in conjunction with severe weather led to a complex ‘error chain’ that ended in a crash and the loss of 228 lives.

However, once the wreckage was recovered, the black boxes were also recovered and their data able to be recovered. The picture that data paints, as set forth in the new PM article, is even more chilling than one of a “complex error chain.” It’s a story of simple human fuck ups, compounded by inexperience and fear (for the record, French authorities haven’t backed this conclusion). As the article explains:

We now understand that, indeed, AF447 passed into clouds associated with a large system of thunderstorms, its speed sensors became iced over, and the autopilot disengaged. In the ensuing confusion, the pilots lost control of the airplane because they reacted incorrectly to the loss of instrumentation and then seemed unable to comprehend the nature of the problems they had caused. Neither weather nor malfunction doomed AF447, nor a complex chain of error, but a simple but persistent mistake on the part of one of the pilots.

Ironically, there may be some blame in the very fact that commercial aircraft are become so safe that pilots have little experience to fall back on when things go wrong:

Over the decades, airliners have been built with increasingly automated flight-control functions. These have the potential to remove a great deal of uncertainty and danger from aviation. But they also remove important information from the attention of the flight crew. While the airplane's avionics track crucial parameters such as location, speed, and heading, the human beings can pay attention to something else. But when trouble suddenly springs up and the computer decides that it can no longer cope—on a dark night, perhaps, in turbulence, far from land—the humans might find themselves with a very incomplete notion of what's going on. They'll wonder: What instruments are reliable, and which can't be trusted? What's the most pressing threat? What's going on? Unfortunately, the vast majority of pilots will have little experience in finding the answers.

Thus, when I fly, my head rages with battle between my rational and irrational selves. My rational self is perfectly calm because the chances of anything really bad happening are so remote, I might as well worry about being struck by lightning. But my irrational side fights back, with the knowledge that if something does go wrong, we’re all well and truly fucked.

In other words, I’ll be in the car.

* As Brock Yates once put it, “if you want to get somewhere fast, fly. If you want to get somewhere on time, drive.”

I Don’t Think That Means What You Think That Means

There’s an old joke that goes something like this:

Q: What’s the difference between a cult and a religion?

A: The religion has better lawyers.

Of course, what really distinguishes a cult from a religions is numbers. In other words, popularity. If enough people join and the cult grows past a certain point, it becomes a religion. Christianity, after all, started off as a small cult splintering off of Judaism.

That’s an awkward introduction to a more pressing question: what’s the first thing that comes to your mind when someone says “cult movie.” If you’re like me, it’s something like the Rocky Horror Picture Show or, perhaps, Terry Gilliam’s Brazil. In either case, we’re talking about movies that didn’t make any real impact when initially released (financially – critical reception is another matter), but found audiences down the road that revere the films and keep the somewhat commercially viable in various new media.

I bet movies that didn’t pop into your mind include things like the Star Wars movies, The Sound of Music, and The Wizard of Oz. Yet, those are among some of the 100 cult movies compiled in a new book by a pair of academics (one Canadian, the other British) who really take a different view on what makes a “cult” movie, one that focuses more on the fans than the films themselves:

I think amidst their popularity, there's a degree of fandom that exceeds the bounds of moderation. It's that very engaged committed and loyal enduring fandom for "The Lord of the Rings" and "Star Wars" and "The Sound of Music" and "The Wizard of Oz" that makes them the cult films as well.

Wait, what? Maybe they’re inspired by the future history set forth in Futurama, whereby an actual cult of Star Trek arose and caused such problems all copies of the series and movies were shot into space.* I’m not sure I buy it:

There's a subset of fans, but those fans, they don’t invent stuff. They latch on to elements of the movie, which they then pull out of normality, if you want, and they start questioning it, discussing it extensively up to the point where then other people, other fans start asking themselves. Yeah, that's right, actually. This isn't quite normal, such as, for instance, the friendship between Luke and Leia.

So, films that are popular enough to inspire discussion about them are now cult films? Are film critics cultists? Academics who study film the way English majors study literature?  There’s a touch of elitism in that view that rubs me the wrong way.

Without a doubt, fans of any particular cult film may be inspired to do silly things (as with the aforementioned Rocky Horror Picture Show). But the very point of such shenanigans is that they’ve found something valuable – whether it’s profound truths about the universe or just a reliable good time – in a movie that the mass of film goers didn’t. A cult film, by definition, has to be an outsider experience.

There are probably lots of interesting things you can learn about fans of movies, both popular and less so. Just because they take the damn things more seriously than you do doesn’t make them a cult. Just ask their lawyers.

* The cult members themselves were dealt with in the way most befitting their status as virgins – thrown into a volcano by a pair of heavies quipping “he’s dead, Jim.”

Friday Review: Anvil! The Story of Anvil

Progressive rock, it should come as a shock to nobody, is a seriously niche phenomenon. Aside from the 1970s pioneers and a few notable others, “underground” barely describes the scene’s profile. Albums are hard to find (if you don’t have a good source). Tours, at least in the States, are maddeningly short, if they happen at all. And, with few exceptions, the people making the music can’t make a living from it. So a lot of the artists I listen to on a regular basis do it because they love to make music. It’s a calling, not a career.

That knowledge added an extra layer of poignancy to Anvil! The Story of Anvil, a documentary of a Canadian heavy metal band that almost nobody has ever heard of. In fact, it’s a little hard to tell in the beginning whether it’s a real documentary or a modern take on Spinal Tap (indeed, the band’s drummer is even named Robb Reiner). But it’s real and the story it tells is both inspiring and pathetic in turns.

Anvil got its start in the late 1970s and, via its first few albums, got just to the edge of making it big. Enough that they were part of a big festival in Japan with a bunch of other rising bands you might have heard of – Scorpions, Bon Jovi, etc. For reasons that the film doesn’t really explore (one of its two major faults), the breakthrough never happened. The core of the band, drummer Reiner and vocalist/guitarist Lips (not his real name!), have nonetheless perservered through the years, banging away for a faithful, if small, following.

The movie shows the band going through a pair of painful musical adventures. One is a poorly organized European tour. After a festival gig in Sweden before a large and appreciative audience, the tour devolves into night after night of playing for a few dozen people in a tiny packed club. Not that there’s anything wrong with that – I’ve seen great shows in such places – but it’s not the kind of situation that suggests bigger things are right around the corner. That they don’t get paid for much of the tour (in spite of this, one of the other band members marries the Russian woman who ran the tour – he’s no longer with the band).

The other major music event is the recording of the band’s 13th studio album and their attempts to get it released with some kind of fanfare. They manage to get a respected producer to do the sessions (in England – they visit Stonehenge, thus making another Spinal Tap link), during which Lips and Reiner argue, break up, and then make up again. In the end, they release the album independently, selling directly to the fans (the album would be picked up by a label associated with VH1 when the movie came out).

Two things come through in these episodes. One is the indefatigable spirit of the band, and Lips in particular, to do what they regardless of how hard it is. Lips says at one point he’d play in front of a crowd of nobody, just because he gets off on the energy of playing that much. It may have been a rationalization (at one gig in Europe they played to less than 200 people in a huge gymnasium-type shed), but it sounded sincere. After all, if you really weren’t in it for the music, there’s no way you’d keep up with it year after year, right?

The other thing that comes through is little more depressing and, in touches, even a bit pathetic. Even after all these years in the metal wilderness and after railing about the inequities of the music business, Lips and Reiner appear to genuinely believe that breakthrough success is right around the corner. It’s like a gambler chasing the next big score, certain that the next time will really be different from all the others.

Fact is, rock stardom is a young man’s game. If you’ve made it to your forties and haven’t hit the big time yet, chances are it’s not going to happen. The impression I get from most of the proggers out there who struggle with day jobs is that, aside from a few eager young ‘uns, they know that they will never be a chart topping success playing to sold out arenas. And they’re all right with that. Sure, they want to make a living doing what they love rather than some other job, but who doesn’t? But I think most are happy when the music they love making connects with an audience, no matter how small.*

In end, it’s hard not to root for the guys in Anvil. They’re enthusiastic about their band and their music. Your heart definitely wants them to make it big. But your head knows better and hopes, one day, their heads will overtake their hearts, too. Then they can enjoy more what they’ve got, rather than pining for what they’ll never have.

* Of course, I could be full of shit.

The Details
-------------------
Anvil! The Story of Anvil
Released 2008
Directed by Sacha Gervasi

Lawyers, Lies, & Laments

The reader(s) of the old blog will recall that I’m quite fond of Shattered Glass. The 2003 film charts the fall of writer Stephen Glass. Working primarily for The New Republic, Glass fabricated a load of allegedly nonfiction articles. When his lies were brought to light, his world crashed hard around him. Made for great drama, of course.

If you’ve seen the film, then you know that while things were falling apart, Glass was actually taking classes at Georgetown’s law school. What the film doesn’t show is that Glass went on to get his degree from Georgetown (with honors) and is now trying to become an attorney. In 2002, his application to the New York state bar was rejected due to his history of making shit up wholesale (he even wrote a semi-autobiographical novel about it, The Fabulist). Shot down there, he moved his efforts to California.

Since 2007, Glass has been battling with the legal powers that be in California, trying to join the bar.* A committee denied Glass’s application in 2009, concluding that he hadn’t really changed since things went to shit at The New Republic. However, he appealed to an administrative judge, who came to the opposite conclusion. A 3-member appellate panel affirmed that decision (2-1). Now the California bar has appealed the case to the state’s supreme court.

Since things have reached that point, all the documents involved are now public record. That’s allowed Jack Shafer at Reuters to dig deeply into the case (via). There’s a lot there, from Glass’s overbearing parents to his continued problems dealing with the full scope of his fabrications. Whether he’s really reformed or not (Shafer votes “not”), you’ll have to see for yourself.

More to the point, is the whole exercise a bit silly given the generally shitty reputation lawyers have with the public in the first place? I mean, when the general opinion of people is that the whole profession is full of bullshit artists, what’s wrong with bringing one more into the fold? If nothing else, Glass knows how to tell a hell of a story, which is a key part of being a good advocate. And haven’t there been cases where lawyers commit serious crimes but return to their legal practice years later?

At the risk of sounding like a member of the tribe justifying the protection of his own, I think it might make a difference when your character flaws become apparent. This is assuming, of course, that one’s character should be relevant at all when it comes to getting a license from the state to practice a profession. But I think it makes a difference whether you can evaluate a person’s character flaw in the context of the work he or she has done as a lawyer or not.

Assume you have two people, both with a compulsive gambling problem. One, call her Betty, is an attorney with about a decade’s worth of experience. The other, call him Bob, is of a similar age but has just passed the bar exam. Each of them has a spectacular flameout caused by their gambling problem, which resulted in criminal and civil proceedings against them. Betty notched a felony conviction, had her license to practice law suspended, and is now seeking reinstatement. Bob was hounded into bankruptcy by debts caused by his gambling and now wants to be admitted to the practice of law.

A bar committee looking at those two cases has an important bit of extra information in Betty’s case. They have her record as an attorney and can determine, however severe her gambling problem was, did it impact her practice? Did she, for example, dip into client funds to fuel her habit? Did late night gambling binges at the local casino leave her strung out and unprepared for court appearances the next day? After all, the main question in these proceedings is the fitness of the applicant to practice law.

Bob, by contrast, has no track record in the profession. There is no way to tell how those same questions might be answered in his case. Thus the committee runs the risk of bringing someone into the profession who might screw over clients because he’s not sufficiently reformed or rehabilitated. Unlike Betty, who comes with a track record, Bob only comes with his big character issue.

What this means for Glass, I think, is that he faces an uphill battle to break into the profession. Had he been a lawyer when everything went down at The New Republic, he might have a better chance of getting back in. Does that make sense? I think it does, or at least I think it can. Whether the differential analysis I laid out above goes on in real life, I have no idea. But it’s at least a justifiable rationale for an apparent double standard.

* I assume that he has actually passed the bar exam itself. In West Virginia, at least, you only get the character questions after you cross that bridge.

Is Law School Worthless?

I have a confession to make: I liked law school. Hard to believe, but it’s true. To be sure, I always enjoyed school and liked learning about new stuff, so that certainly helped. Plus, I made the decision early on to focus on taking classes that interested me intellectually, rather than simply load up on stuff I needed to learn to pass the bar exam (that’s what bar review courses are for, you see).

Here’s another confession: I use very little of the substantive stuff I learned in law school in my current practice. Not because I skipped the bar exam classes, but because the real practice of law involves so many things that don’t fit neatly into the pages of a hornbook. There’s no good way to read about how to tell a client he’s facing life in prison or that, in spite of what the law on the books might say, he’s not going to prevail on appeal.

That split, between what you learn in law school and what you need to know to actually practice law, is getting renewed attention these days, partly due to the fact that going to law school is so fucking expensive. In spite of the tens of thousands of dollars of debt freshly minted lawyers run up, more and more firms have to spend valuable time (and money) training even the best and brightest to actually practice law, rather than merely think like a lawyer. Is it time for legal education to change?

Stanley Fish, who teaches some of the more esoteric stuff at Yale, makes a spirited defense of legal education as something more than a trade school here. For Fish, it’s about being able to work for a client with knowledge of the broader context of things:

One can, however, make the case that the practice of law is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause. The marshaling takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries. What obligations do citizens owe one another? How far can the state go in enforcing those obligations? What restrictions on what the state can do to (and for) its citizens should be in place? How do legal cultures differ with respect to these issues?

On a philosophical level, I agree with Fish. He’s made similar arguments about the demise of liberal arts education in college, and perhaps I’m biased when it comes to such arguments. The focus of my undergrad education – history, philosophy, political science – was not exactly designed to widen my employment prospects (at the time, I didn’t know historians could get millions lobbying for . . . er, I mean, “consulting” for financial institutions). And, as I said, the electives I took in law school were much more about intellectual stimulation than cramming rules into my brain. I’d like to think all that stuff at least informs the way I do may daily work. Besides, I’m a big fan of learning for the sake of it.

But on a practical level, I think he oversimplifies things. Yes, a legal education should include some of the more longhaired stuff Fish champions. That doesn’t mean it can’t also address some of the more practical aspects of being a lawyer. It’s not an either/or proposition. Or, at least, it shouldn’t be.

Expanded clinical programs have addressed those issues somewhat over the years, but they’re not big enough at most schools to allow all students to participate. Something more radical is necessary, probably something modeled on the kind of internships doctors in training go through. Whether that would be a replacement for law school’s third year or some sort of compliment to it, I don’t know. What I do know is that while we don’t want law schools turning into simple trade schools, neither do we want them to become so obsessed with theory and the esoteric that they don’t really prepare students to be lawyers.

So, end the end, is law school worthless? I don’t think so. I can be improved, though. And I will say this to anyone weighing whether to go to law school: For the love of your God, don’t do it unless you really want to be a lawyer! It’s too damned expensive (and too hard, frankly) to be a way station on the road to somewhere else.