Monday, May 25, 2015

Unlikely events involving Neal Stephenson novels

Earlier this year I purchased a new, paperback copy of Neal Stephenson's book Reamde (2011), a slightly science-fictional global thriller that I had fun reading. But when I reached page 726, I found that pages 727-759 were missing from the book; not pulled out, just never bound in.

What made this especially odd was that some years ago I purchased a new, paperback copy of another Neal Stephenson book, Cryptonomicon (1999). I enjoyed that one too, but when I reached page 790, I found that pages 791-822 were missing from it; again, not pulled out, just never bound in. With Cryptonomicon, I went to the public library and read the missing pages there, but I didn't think l I should have to do that twice -- and fortunately, Stephenson's agent graciously sent me a new copy of Reamde that had all of its pages.

One possible explanation for my twice buying incomplete copies of Stephenson's books is that there are a lot of incomplete copies around. I hope that's not true, for the sake of Stephenson and his many other readers. But the second possible explanation (the one his agent confirmed) was that I was (in book-purchasing terms) struck by lightning twice. 

What can be the odds of this? If one out of 10,000 copies of Stephenson's books is incorrectly bound, then the chance of buying two would be about one in 100,000,000. That's really not very likely! But if this could happen, doesn't it seem that I should be due to win the lottery soon? 

Non-immortal verse

From my grandmother's poetry collection, the first stanza of an 1896 poem by Ella Wheeler Wilcox, titled "Custer":

All valor died not on the plains of Troy.
Awake, my Muse, awake! be thine the joy
To sing of deeds as dauntless and as brave
As e'er lent luster to a warrior's grave.
Sing of that noble soldier, nobler man,
Dear to the heart of each American.
Sound forth his praise sea to listening sea--
Greece her Achilles claimed, immortal Custer, we.

Of course it is right, especially on Memorial Day, to remember those who died in battle, and those who lived afterwards with the consequences of the wars. But sometimes the passage of years clarifies our view -- and improves our poetry.

Saturday, March 7, 2015

When a fish is not a "tangible object" and why this matters

A brief note on the intriguing case of Yates v. United States, decided by the U.S. Supreme Court on February 25, 2015: This case asked whether a fish is a "tangible object," and answered: no. (By a 5 - 4 majority, with the deciding vote cast by Justice Alito, who agreed with the result but did not concur in the reasoning of the plurality opinion by Justice Ginsburg.)

How could a fish not be a tangible object? Obviously the dictionary would confirm that a fish is a tangible object -- it can, in fact, be touched. But "tangible object" in this statute, the Supreme Court concluded, did not mean all objects encompassed in the dictionary meaning of the words. Instead, to make a long story short, the Court concluded that in this particular statute -- part of the Sarbanes-Oxley law, enacted after the Enron bankruptcy and aimed, at least most directly, at preventing future massive financial frauds -- and as part of the statutory phrase "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object," the words "tangible object" referred to objects "used to record or preserve information." (Plurality opinion at 20.) What Mr. Yates had done was to throw undersize fish overboard, to avoid federal fish & wildlife penalties.

That's all interesting. I'm not sure that Justice Ginsburg has the better of the argument in terms of the various tools of statutory interpretation she and Justice Kagan, who wrote the dissent, employ. (This case is a wonderful one for teachers of statutory interpretation, like me; in three quite short opinions it runs through many of the rules that currently play an important part in how statutes are read.) But the case certainly stands for one proposition: dictionary meaning, inconsistent with context, doesn't always control. And that might be a good sign for the Affordable Care Act, which poses a similar problem: does the statute, which permits tax credits only to people who buy their insurance from a health care exchange created by a state, actually, in context, also permit tax credits to people who buy their insurance from a health care exchange created by the federal government in a state that chose not to create its own? The fate of the Affordable Care Act rests, to a very large extent, on this precise question of statutory interpretation. 

Saturday, February 28, 2015

Why is intelligence so rare?

This is just a question:

Whether or not life itself is a miracle, or the product of divine action, on the planet we live on life is all over the place. Life has existed on Earth for billions of years. Living creatures inhabit all sorts of environments, some of them seeming almost completely uninhabitable.  

And yet, so far as we know, no species except our own has attained our level of intelligence in all those aeons. Why is this? 

Our own history tells us that intelligence is an extremely useful trait to acquire; without it we would certainly not be kings and queens of the jungle. That suggests that if this trait had evolved before, it would have been likely to flourish. 

Is the reason it didn't evolve before that the ability to think as we do is such a huge genetic alteration that its arrival could require billions of years to take place as a matter of sheer biological luck? Well, the evidence doesn't seem to support this "huge alteration" idea, because lots of creatures have some measure of cognitive ability. At least some other animals, including parrots, dogs and chimpanzees, can learn something of our languages (which seem to be one of the most distinct of our intellectual accomplishments). Any number of animals -- perhaps even plants! -- have enough cognitive capacity to form purposes and try to achieve them. Our intelligence is greater than all theirs, we believe, but it doesn't seem totally unlike what they have. 

So if life on earth is prolific, and intelligence a useful and genetically reasonably available trait, and if evolution over millions of years has explored one way after another for achieving survival, why was intelligence so late to show up?

On the importance of small acts of kindness

Elsewhere in Justice: A Personal Account (2014), Edwin Cameron speaks about the impact on his life of acts of individual kindness. He grew up poor, and during one holiday, with no warning, a well-dressed woman showed up at his mother's door, asked if this was the Camerons' residence, and handed Edwin an envelope with cash in it. Not a huge amount of cash, but enough to make a difference that Christmas, materially and emotionally. (232-34) Later, as a scholarship student at an elite boys high school, he was the beneficiary of several quiet gifts of cash that made it possible for him to attend without being humiliated by poverty. (234-35)

To the extent these gifts should be seen as part of a social structure, they were instances of affirmative action for whites and perhaps more specifically for Afrikaners (Cameron's home language was Afrikaans (36-37)), and Cameron emphasizes this important point. (237)

But Cameron also emphasizes another important aspect - the profound impact of, and necessity for, individual acts of kindness. (235-36) On this too he is surely right, though not only because, as he reminds us so vividly, such individual acts can matter deeply for those whose lives they change. Individual charity is not a substitute for the just social institutions that the South African constitution aspires to create, Cameron reminds us, but I think it is unlikely that a society without personal charity ever could achieve just social institutions, and if it did, I'm not at all sure we would like the "justice" that society embodied. A society consists of individual people, and the state of their hearts matters for the society as a whole. 

Put a little differently, much as Hamlet did to Horatio, there are more things in heaven and on earth than are dreamt of in some philosophy. The exact meaning of individual acts of kindness may be hard to explain or measure, but they can help transform the lives of everyone involved nonetheless.

The dead hand of the past, casting its vote

From The Star-Ledger for Saturday, February 28, 2015, an editorial called "Giving life to law that would count votes of the dead": New Jersey State Assemblyman Robert Dancer, a Republican from Ocean County, NJ, proposes to count the votes of the dead.
In an event of an untimely death -- meaning one that occurs between the time someone casts an early mail-in ballot and the actual election -- he is seeking to pass a law that would allow dead people to vote legally. He says their ballots should still count.
      Essex County Clerk Chris Durkin agrees. "Their voices should still be heard. ... Even in death," he told NJ Advance Media's Matt Friedman, in what we hope sounded like a voiceover to a horror movie.
The editorial writers are amazed, and rightly so. Really, you can't make this stuff up.

Sunday, February 22, 2015

Looking back at the effects of anti-apartheid lawyering in South Africa

Constitutional Court Justice Edwin Cameron, in his perceptive and often moving book Justice: A Personal Account (2014), revisits the old question of whether using the law against apartheid did more harm than good. He firmly maintains that on balance this work, in which he himself played  an active part, was on balance well worth doing - and I agree. 

But along the way he makes a startling point (see page 59 of his book). He says that both the attackers and defenders of this work "were right." The attackers' point, he writes, was that "the legal system provided a cloak that legitimated apartheid - enabling it to be enforced for longer under a guise of respectability," and he agrees that "without the law, apartheid may not have been as efficient as it was for so long."

Cameron's observation is open-minded and interesting. The question of whether such a boomerang effect took place was important at the time, and remains worth considering now. Moreover, I think he is right that law was an efficient tool for the administration of apartheid. 

It doesn't necessarily follow, however, that without law apartheid would have ended sooner. It would surely have been more horrendous, as Cameron emphasizes, but whether its even more grotesque injustices would have led to its earlier demise is hard to say. In fact Cameron, while saying that those who attacked lawyers' work within the system had a point, doesn't actually endorse the proposition that apartheid without law would definitely have ended earlier; what he writes on this score is phrased more tentatively and speculatively.

Even if law facilitated and extended apartheid, moreover, it doesn't follow that anti-apartheid lawyering had that effect as well. That conclusion would have to rest on more attenuated logic. The first step would be the proposition that anti-apartheid lawyering lent legitimacy to apartheid (by enabling apartheid’s advocates to paint it as an institution with open courts honestly hearing even claims that challenged apartheid). I think it is quite possible that anti-apartheid lawyering lent some measure of legitimacy to the courts - but whether it either encouraged the defenders of apartheid as a whole or weakened the convictions of apartheid's challengers is quite another matter. And even if it did have such effects to some degree, there was a lot going on the later years of apartheid besides court cases. My guess is that the most potent sources of supporters' and attackers' convictions lay outside the courts, and that any boomerang effects of anti-apartheid lawyering were very modest.


Happily, this is one issue that history has made easier to resolve. It's clear that the years of the most intense anti-apartheid lawyering were also the years when that system, with or without some measure of legal legitimation, was skidding towards its welcome end. And that means we can instead rejoice in the commitment to the idea of meaningful law that the anti-apartheid lawyers helped create as one contribution to the new South Africa.