The Faculty Lounge

Up Goer Your Law Review Article

To those faculty hiring committees who asked me to explain my PhD dissertation, Finitude, Transcendence, and Ethics: Sartrean-Niebuhrian Resources for Understanding Difference and Dominance, in layman’s terms: I regret that this explanation is coming so late, but here it is, using only the most commonly used 1,000 words in the English language.

Cedar Riener (follow him @criener), an enterprising psychology professor, has begun a Tumblr, Up Goer Your PhD, collecting doctoral dissertation abstracts written in layman’s terms, as described above. His project is a riff on this brilliant layman’s diagram of Saturn 5, otherwise known — when one is limited to the most common 1,000 words — as “Up Goer 5.” People using Up Goer to explain a variety of other complicated concepts can be found on Twitter at #UpGoerFive. Many Up Goer projects turn out to be hilarious, and they’re fun to create, too.

But there’s a serious point here as well. Jargon (including technobabble, neurobabble, and other babbles) can be efficient shorthand when conversing among other experts. But let’s be frank: it can also conceal some serious B.S., not only from our readers, but also from ourselves. Why? We often believe that we understand concepts better than we actually do — sometimes called the Illusion of Knowledge (disclosure: the interviewee is my husband), or the Illusion of Explanatory Depth. Many studies have found that people often overestimate how well they understand complex phenomena (even distinct from general overconfidence bias). In one set of experiments, subjects were often unable to draw a functioning bicycle, despite having previously reported that they understood bicycle mechanics. In another, subjects displayed similar overconfidence in their understanding of devices, procedures, natural phenomena, and movie plots.

In addition to being fun, being forced to “up goer” your writing on a complicated subject is an extraordinarily useful exercise. It’ll keep you honest. Try it with this handy text editor that lets you type your layman’s explanation into a box, and tells you when you’ve used a verboten word. When you’re done, there’s a button to click that lets you permalink your Up Goer creation and tweet, Facebook, or blog it — but the button only appears when you have avoided all verboten words. In some contexts, this could also be an excellent teaching tool. Give it a try: it’s harder (and more illuminating) than you think.

Postscript 1: The original dissertation abstract from which I was working is here. It's been a while since I wrote it, and I confess that as I began to up goer it, even I wasn't sure, at points, exactly what I'd been talking about. (When you live and write long enough, I suppose you have this out-of-body experience more and more often.) With some effort and recollection and the help of the Up Goer text editor, however, I satisfied myself that my dissertation was not, in fact, B.S. There was a there, there after all. On the other hand, I now sort of feel like my 5-year-old could have written it. Tradeoffs.

Postscript 2: A bit of nerd humor about empirical versus non-empirical methods. 

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

"Gender and the Legal Profession's Pipeline to Power" Symposium Under Way at MSU

  The MSU Law Review Symposium on "Gender and the Legal Profession's Pipeline to Power" is in full swing of today.  I'll be live blogging and tweeting (@ProfBCrawford  #genderandlegalprof) throughout the day.  Here's the morning's line-up:

Panel 1--Gender, Race and the Judiciary

Moderator: Linda Greenhouse

Renee Newman Knake (MSU), Rethinking Gender Equality in the Legal Profession's Pipeline to Power

Keith Bybee (Syracuse), The Limits of Debate or What We Talk About When We Talk About Gender Imbalance on the Bench

Sally Kenney (Newcomb College, Tulane), Gender at Work: The First Women on State Supreme Courts

Angela Onwuachi-Willig (Iowa) and Amber Fricke (Iowa), The Inexorable Zero: Female Judges of Color [unintentionally omitted from initial post; updated 4/14/12--BJC]

Panel 2--Gender Equality: From the Boardroom to the Electorate

 Moderator: Winona Singel (MSU)

Doug Branson (Pitt), Diversity in Corporate Governance

Christine Corcos (LSU), Toward Cognatic Primogeniture: The Rise of Equal Rights of Succession in the Modern European Constitutional Monarchy

Erika Falk (Communications, John Hopkins), Unnatural, Incompetent, and Unviable: Press Portrayals of Women Candidates for President

Panel 3--The Roots of Gender Inequality in the U.S. and Abroad

Moderator: Melanie Jacobs (MSU)

Jen Mullins (American), Reactions to Lose: Investigating Lack of DiPersistent Gender Disparity in Student Note Publication

Dara Purvis (Illinois), Gendered Self-Evaluation of Female Law Students

Abigail Rury (Iowa), All Things Being Equal, Women versity Among the Recent Appointments to the Iowa Supreme Court.

More to come!

(cross-post at Legal Ethics Forum)

A Rose By Any Other Name . . .

First off, a big thank you to Dan for allowing me to serve as a guest here at the Faculty Lounge.  I'm honored to participate in this wonderful community.  So thank you very much for having me.

Today I was talking with a good friend of mine about the art of titling law review articles.  Personally, I've often thought that it would be quite interesting to enter all the law review titles (from some discrete time period) in a database and see which key words pop up the most often.  I'm thinking "normative" and "heuristic" would have to be up there . . . 

All this begs the question:  How do we go about titling our law review articles?   More specifically -- Should we try to sound fancy?  Should we try to be cute?  Should we try to write something that will simply sound impressive to the law review editors we hope to persuade to publish our work?

A relatively recent article by Professors Leah Christensen and Julie Oseid, entitled "Navigating the Law Review Article Selection Process" (available on SSRN here) found that, in some cases, a "catchy" title can work against you with law review editors.

So, I'm curious.  How do you go about titling your articles?  And, other than to simply describe what the article is about, what other motivations influence the titles you ultimately select?

Wise Words

Recently, I’ve blogged about good (and bad) writing, here and here.  In a bit of serendipity, I came across yesterday two happily short essays, both written by law professors who are masterful writers with formal training in literature. 

One essay is by Bill Miller at Michigan, the other by Stanley Fish at FIU, and both dwell on the meaning of old age.  As he does in his addictive books, Miller writes with brio and a wit that is generous and droll.  Fish, surely one of the eminent public intellectuals of his time, reflects on his life with candor, humility and, something that I didn’t naturally expect from a law professor, a moving and genuine affect. 

Miller and Fish hint that they are near the end; as someone who, by turns, adores and covets their talent for the craft of writing, I hope not.   

Big Words

Jacqui’s post got me thinking about prose, and especially, the meaning of good prose; I had written about that before. 

In Jacqui’s post, Stephen King was quoted as saying that a simple word, with its purported directness and lucidity, is usually better than a longer one, with its clumsy pretentiousness. 

There’s a happily intuitive appeal about King’s view.  I mean, do I really want the 2L students in my First Amendment seminar, the night before their papers are due, to raid Roget’s Thesaurus, looking desperately for pseudo-scholarly substitutes for “significant” and “odious,” in some vain endeavor to gravy over an otherwise substantively mediocre paper? 

But should King’s dictum apply for everyone?  Take the satirist David Lodge or, for that matter, Christopher Hitchens, with their luscious grammar and deft—no, masterly—grasp of English.  (Lodge and Hitchens, both British,. . . that wasn’t intentional, by the way,. . . please, no accusations of America-bashing.)

I find their vocabulary, multisyallbic and challenging, to be gorgeous and illuminating, the sort of stuff that I wish I had written, not just for their substance, but their fabulous style.    

 

 

 

Lawtalk, Old and New

I've long been fascinated by the interaction of law and culture, and so jumped at the chance to be one of the authors of Lawtalk:  The Unknown Stories Behind Familiar Legal Expressions, due out in November. The rich histories behind phrases we law professors use every day, coupled with their tendency to pop up in today's headlines, is just plain fun.  So I'm also very happy to get this chance to guest blog a bit and share some of those stories with readers of The Faculty Lounge.

I'll start with two related terms:  "rap" and "rap sheet."  The former started life meaning a blow to a person or sharp tap on an object.  Over the centuries it developed a figurative meaning, and by the end of the 19th century to "get the rap" for something was well-established slang for getting the blame.  The lingo of criminal world then adopted "rap," adding colorful variations.  The New York Times in 1926 helpfully provided this translation of one meaning of "rap" for its readers:  "When one is singled out from a line of suspects as the dick who slid with the ticktick, one is the victim of a 'rap.'"

"Rap sheet" came along later, but was based on the well-established sense of "rap" as a criminal charge.  This straightforward history did not, however, prevent the establishment of a false etymology -- the belief that the "rap" in "rap sheet" is an acronym for "Record of Arrests and Prosecutions." It would make a logical acronym, like SCOTUS (Supreme Court of the United States). 

Logical, but untrue.  That version of "rap" sheet is another animal entirely:  the backronym.  While in a true acronym the phrase precedes the word, a backronym attributes a false back-story.  "Golf," for example, did not come from "gentlemen only, ladies forbidden," nor does "cop" come from "constable on patrol."  An enterprising computer programmer has even created a backronym generator. FACULTY, for example, becomes "Foolish Antiquarianism Clarification Unbecomingly Lateness Terrible Yelp," and LOUNGE is "Learn Old Unhallowed Neptunian Group Endowment."  One computer-generated backronym for RAP is "Ridicule and Penetration."

Nevertheless, the fiction is becoming truth.  A few states have actually formally adopted the phrase "Record of Arrest and Prosecution" and call the resulting records R.A.P. Sheets, converting slang into the official title for criminal history records and turning the simple, earthy "rap" into a pretentious series of initials.  "Rattling Analyst Poster," anyone?

 

Can the Law Speak Directly to its Subjects?

Even the first part of the title of this new article caught my eye:

Rebeea Assy, Can the Law Speak Directly to its Subjects? The Limitati0n of Plain Language, 38 J. L. & Soc'y 376 (2011)

I haven't read it yet, but the abstract looks promising:

Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.

Note that non-subscribers (me, for example) can only access the article on-line by paying for it.

As a transactional lawyer, I emphasize the importance of planning, and contracting, in reducing potential disputes.  The problems with contracts are the problems with all language:  completeness and interpretation. Like mathematical systems, no non-trivial contract can be complete.

The problem of interpretation--what did you say when you said what you meant?--is doubled, if not squared, when you are talking about communication between two persons:  how did the other person understand what you said? Is that black-and-white spotted dog mainly black, with white spots, mainly white, with black spots, or somewhere in between.  There is a particular color that I always see/describe as clearly gray, though a blue-ish gray, and my wife always sees/describes as clearly blue, with a touch of gray.  I now think of it as "that color," and try to remember that my wife sees/describes it differently--course of dealing, I suppose you'd call that.

Two Narratives of Courage

One of the corollaries of any study of manliness is courage, the supremely male virtue.  But if courage forms the center of male virtue, do we know what courage is?  In a work in progress, I’m interested in juxtaposing two narratives of courage, those proffered by judges to underwrite their opinions and those ushered by combat soldiers to make sense of what they experienced.  I know the below examples, not at all the product of random sampling, hardly begin to scratch the surface; perhaps, though, they’re food for thought. 

 Three Judges on Courage

 “Those who won our independence believed. . . .courage to be the secret of liberty. . . .”--Justice Brandeis, Whitney v. California (1927). 

“. . . the exercise of First Amendment rights often requires an act of courage,. . . .” --Judge Ramirez, Keene v. Meese (1985).  

“To justify a homicide the fears of the slayer must be those of a reasonable man, one reasonably courageous, reasonably self-possessed, and not those of a coward.” --Judge Louis L. Brown, Wheeler v. State (1934). 

Three Soldiers on Courage

“It is hard to know what bravery is.”--Tim O’Brien, Vietnam War combat veteran.

“It was some months and only a few more bullets and shells later that I knew my courage for what it was—a reaction to the shame I felt at being afraid,. . . .”--Robert Crisp, World War II veteran, recipient of Britain’s Distinguished Service Order and Military Cross.

“I understand desertion.  A man distraught determines that the last act of his life shall at least be one of his own volition; and who can say that what is commonly regarded as the limit of cowardice is not then heroic?”--Max Plowman, World War I combat veteran.

Man up!........Man up?

Thanks to Dan for letting me guest blog.  Alas, I immediately repay his kindness by exploiting this opportunity to post on something bleakly provincial to my own scholarly preoccupations:  manliness.  Specifically, manliness in the context of law and literature.  I know, I know.  Here we are, in the debt crisis, facing the impending end of Western civilization, and I want to blog about law & literature. . .regarding. . . “manliness.” (isn’t this the shameless epitome of the self-indulgent academic?) 

But so much of the debt crisis is suffused with the idiom of manliness, isn’t it?  Liberals cry that Obama needs to “man up” and confront the Tea Party while Boehner, even for a dude who doesn’t mind having a good ole’ public cry now and then, once committed, can’t stand down from his manly posture without embarrassment. 

But this post isn’t me expounding my views on manliness (ummmm, you can find that here, incidentally).  It’s rather me asking for your help.  I’m trying to put together an annotated bibliography, provisionally titled, “Manliness:  A Law and Literature Perspective.”  So, for example, I would include—would have to include—Mario Puzo’s The Godfather.  Talk about manliness, it has every aspect of it:  the patriarch, the reckless man-child, the avuncular bully, the callow son trying to prove his manhood, the faltering wimp, you name it.  And all of it takes place in the context of law.  Guys trying to violate it, bribe it, evade it, enforce it.  Much of the law, then, presents obstacles and opportunities for and extensions and emanations of manliness. 

So, I need your help:  what do you think would be good pieces of literature to include in such a bibliography of manliness in law and literature?    

What's in a (Subject) Name?

Those of us who teach "law of the horse" type subjects such as cyberlaw do tend to spend some time wondering about how to characterize the nature of the field and what label should be attached eg cyberlaw, cyberspace law, information law, Internet law etc.

Recently I also started thinking about the comparative labeling issue.  In other words, there are some subjects that are called different things in different countries, the most obvious example that springs to my mind being antitrust law.  In the United States, it has a historical title based on the regulatory problems of breaking uncompetitive business trusts in the early stages of its development.  In Australia, the field has been known as "restrictive trade practices" and in Europe, it garners the term "competition law".  Does the title make a difference to the development of the field?  Does it tell us something about the policies driving the laws?  For example, does the "competition law" title suggest a focus on encouraging competition while the Australian title suggests a focus on preventing restrictive trade practices, to the extent that these are different approaches that may lead to different outcomes?  And does the use of "restrictive trade practices" in the Australian title suggest a greater focus on preventing specific restrictive practices such as tying, as opposed to conduct that may be regarded as more generically "unfair" or "anticompetitive" such as charging monopoly prices?

Obviously, words matter in law and precision is important where possible.  Does anyone have any views on the ways in which the title affixed to a legal field either reflects or informs the development of the subject matter of that field?

'Deyz Doozie-Pots

One of the great things about teaching Wills, Trusts & Estates is that the cases are so colorful.  The fights about money, the family configurations, eccentric behavior, unusual circumstances, generational feuds ... never a dull moment.

Yesterday, someone in my class was describing how a particular witness in a case was making outrageous claims about a specific family member.  The claims had no seeming connection to reality.  The witness was, in the speaker's words, a bit "doozie-pots."  I hadn't heard this term before, but it was clear from the context that "doozie pots" meant loopy, nutty, crazy. 

Long after class, I kept thinking about the phrase.  In trying to learn more, my first stop was urbandictionary.com: 

Doozy-pots

a person who is more than a little eccentric, usually an artist or someone in the professional fine art field.

acting in a crazy and flighty manor while attempting to be creative and/or productive.

he'll never get the project done on time, the guy is completely doozy-pots

I had already garnered as much.  So I kept working the Google machine.  The OED was unhelpful.  Finally I found this gem (here) on a word-lover's blog:

In my neighborhood, it was common for people to shout "doozie pots" at each other.  I had no idea what that expression meant, except for a strong feeling that it wasn't praise. It was not until I studied a little Italian that I understood that what I heard as "doozie pots" was a Sicilian variant of tu sei pazzo, "you're crazy."

Ah!  I don't think I'll be using the phrase often myself, but I was glad to learn this interesting linguistic twist.

 

Law and Film: Despicable Me

Most law professors, at one time or another, have asked a student to state "the rule of law."  The student then does so, sometimes in a manner that is overbroad.  Take the beloved UCC Article 9, for example.  The baseline rule for resolving priority disputes between two perfected secured creditors is found in 9-322(a):  the first to file or perfect (whichever is earlier) will win the dispute.  But as SecTrans students quickly learn, that baseline rule is subject to a myriad of exceptions, signaled with the dreaded clause "Except as otherwise provided ...." (a phrase which appears more than 100 times in Article 9).

The related matter of shaping and honing legal positions in document drafting also comes up here and there in law school.  For example, a secured lender may include in the initial draft of the security agreement a provision that tells the debtor  "no other debt, no other liens, and no collateral dispositions," leaving it to the debtor (or its counsel) to insist on carveouts necessary for the debtor to conduct its operations.

I've been reminded of this back-and-forth interplay between parties (the law professor and the student, or the secured party and the debtor) as my daughters have watched (over and over and over and ...) one of the DVDs they received for Christmas:  Despicable Me.  In this delightful animated film, the lead character (Gru) adopts three little girls (Margo, Agnes, and Edith) to assist him in stealing a "shrink ray" gun from a competing villian.  Gru is not used to having three little girls in his house, and he quickly sets about to establish some boundaries.  Here's the dialogue:

Gru: Clearly, we need to set some ground rules.  Rule number one:  you will not touch anything.

Margo: Uh-huh. What about the floor?

Gru: Yes, you may touch the floor.

Margo: What about the air?

Gru: Yes, you may touch the air.

Edith: (holding one of Gru's weapons) What about this?  (Gru looks at it, lets out a startled cry, and holds up a pan for protection)

Gru: Where did you get that?

Edith: Found it.  (Gru takes the weapon)

Gru: Okay. Rule number two:  you will not bother me while I'm working. Rule number three: you will not cry or whine or laugh or giggle or sneeze or burp or fart.   So no-no-no annoying sounds.

Agnes: Does this count as annoying? (she lets go of Margo's hand and puckles her cheeks; Gru grabs her hands, looking very angry)

Gru: Very. (sighs irritably)

It really is quite charming.  But it also is a wonderful illustration of what can happen if a person states an overly broad position -- a concern that can arise in the law school classroom, as well as during document negotiations.  For that reason, perhaps this snippet from the film merits consideration for inclusion in any "law and film" course.   

Article Edits and the Passive Voice

Like many of us I'm sure, I'm currently (and diligently!) working away at suggested edits by various law journal editors.  In recent years, I've been very good about trying to avoid the passive voice in my drafts, but a couple of instances always sneak through.  And I usually wonder (as I redraft) why are we all so obsessed with active versus passive voice?  When I'm reading the work of others, I'm never particularly aware of whether they write in the active or passive voice or a combination of both.  But when did the "no passive voice" rule initially hit the law reviews, and what is its basis?  And do people think it affects your chances of a "good" placement if there's too much passive voice in the initial submitted draft?

Plagiarism and Cheating: Who's to Blame?

In the last 24 hours, two colleagues have brought to my attention cases of academic plagiarism at the professorial level, and another brought to my attention an article from The Chronicle written under a pseudonym by a man who makes a living from writing students' undergraduate and graduate research papers for them.  A number of questions arise from these examples of acdemic cheating and many of them raise difficult ethical questions to which I'm sure I don't have the answers.  The discussions I've had over the last day include questions like:

1. What do you do if you find out that someone else has plagiarised your work in a published article/essay?  Who do you contact?  The journal?  The authors?  What are the appropriate remedies, if any?  Any how much of this is a matter of opinion ie who makes the final judgment as to whether the allegation of plagiarism is sustainable or should be sanctioned in some way?

2. Who is to blame for what appears to be a creeping growth in instances of plagiarism at all levels of the academy?  Is it a result of time pressure?  Economic pressure?  Unreasonable expectations of academics and students?  Admitting people into programs who cannot cope with the demands of the program?

3. Should there be sanctions for professional "ghost writers" who write work for those unwilling or unable to do their own work?  On what grounds?  Presumably a student who employs a ghost writer will be penalized by his/her institution if the cheating is discovered, but what about the people and businesses who enable the cheating by providing the required services for money?

I would certainly recommend the article in the Chronicle as both an engaging and disturbing story which may be instructive for anyone involved in supervising graduate or undergraduate papers.  I would also be interested in other people's stories about how they have detected and dealt with academic plagiarism and cheating on assignments.

Mangling the Lingo

Most readers are aware that UCC Article 9 permits a lender to perfects its security interest in almost all types of collateral by filing a "financing statement" (also known as a UCC-1). 

A few times during every semester in which I'm teaching Sadistic Transactions a student will throw out the phrase "financial statement" (as in, "the creditor is perfected because it filed a financial statement").  I cringe, inwardly and outwardly, and the students soon learn the error of their ways.

My students aren't the only ones who, on occasion, commit this error.  Judges, too, have been known to make the same mistake.  See, e.g., Agriliance, L.L.C. v. Farmpro Serv., Inc., 328 F. Supp. 2d 958, 966 (S.D. Iowa 2003) (“filed the appropriate financial statement”); EH Yacht, LLC v. Egg Harbor, LLC, 84 F. Supp. 2d 556, 560 n.2 (D.N.J. 2000) (“the UCC financial statement”); 21 West Lancaster Corp. v. Main Line Restaurant, Inc., 614 F. Supp. 202, 203 (E.D. Pa. 1985) (“financial statements were timely filed”); U.S. v. Trans-World Bank, 382 F. Supp. 1100, 1103 (C.D. Cal. 1974) (“a financial statement filed with the California Secretary of State”); In re Tamis, 398 B.R. 124, 126 (Bankr. D.N.J. Dec. 2008) (“The Chase security interest was perfected by the recordation of a UCC-1 financial statement”); 1st Bank v. Winderl, 60 P.3d 998, 999 (Mont. 2002) (“two financial statements filed in 1990 and 1994”); LBM, Inc. v. Rushmore State Bank, 543 N.W.2d 780, 785 (S.D. 1996) (“a valid and filed financial statement”); Texas Beef Cattle Co. v. Green, 883 S.W.2d 415, 425 (Tex. Ct. App. 1994) (“filed financial statements”); Simmons Oil Corp. v. Holly Corp., 796 P.2d 189, 197 (Mont. 1990) (“Holly filed UCC financial statements in Montana.”).  And I recently discovered the same linguistic faux pas in a "problem" that appears in a leading commercial law casebook ("... quickly files an initial financial statement ...").

My point in writing this post isn't to hold myself out as one who never makes a mistake (I may not make this mistake, but I make plenty of others; e.g., approximate cause v. proximate cause, payroll evidence v. parole evidence, administratrix v. dominatrix, etc.).

My point is this:  to solicit other suggestions where a word or phrase, of significance to a particular body of law, is often mangled by its users.  What might those words or phrases be?

When Did Snacks Become Snack?

Call me pernickety, but I have a personal grudge against the word "snack", as in "who is bringing snack for the kids' bocce team" or "she won't be hungry for the seitan tacos because she had snack."   Remember when a pack of pretzels called for an indefinite article - as in "did you have a snack at school today" - or perhaps a plural - as in "did they have snacks at the end of the meet?"

It's hard to provide a precise explanation for this odious turn, but we know one thing: the stature of the casual munch is on the rise.   Snack has been installed as the fourth, and in many cases, fifth meal of the day.  Breakfast, snack, lunch, snack, dinner.    The nutrition experts and pediatricians  are wringing their hands about this development for good cause: all the extra meals may end up fattening up our youngsters.  And the experts fear that this leads to lifelong obesity, early onset diabetes, etc. etc. etc. 

But I'm agitated for a different reason.  I just can't get comfortable with new singular.   In my view, a parent ought to send a snack, or snacks, to school.   And if we surrender to this snack-attack at school, can we at least draw a hard line at our front doors?  At home, if nowhere else, I want to know my child is having a snack - two snacks if she chooses both the Pirates Booty and the Oreos.

And yes, I did choose pernickety over persnickety - much as I prefer kerfuffle to kerfluffle.

Synergistic Teaching and Scholarship in Contract Law: Concepts and Metaphors

By popular demand or one comment from Matt Bodie, whichever is lesser!

Matt asks, apropos of the Manic Expressive post, whether I'm using a new book (I referred to doing a new prep).  The answer is "yes, but..."  I taught the first semester of the six-credit Contract offering at Wake Forest in the fall 2005, and Contracts II, the Sales portion of the first year curriculum at Tulane, in the spring 2007 (for common law students; I think the civil law students there take something called Obligations).  I used Knapp, Crystal, & Prince for Contracts and Keating for Sales.  The administration at Suffolk waited for three years before siccing me on the 1Ls (I have been teaching Unincorporated Business Entities and Securities Regulation), but the pressing need this year was for Contracts.  I'm using Hogg, Bishop, & Barnhizer for a number of reasons (Knapp, et al. is excellent and there is no shortage of fine contract law casebooks), not the least of which is that my colleague, friend, and suitemate, Carter Bishop, is right there for me when I want to brainstorm about something.

It's been interesting to return to teaching contracts since I've written five pieces since teaching at Wake on contract theory, and another three dipping into metaphor theory (as an means of getting at what I think of as the mystery of forward-looking judgment).   It's been almost impossible to teach the doctrine without organizing it in terms of my theoretical take, and I'm finding my theoretical take informed in almost every session of class preparation.  So I'm working in parallel tracks.  I'm  developing the classroom materials and teaching from them on one hand, and working the article in which I'm developing the theory behind what I'm doing, on the other.

Here's the opening paragraph of the extremely nascent article:

There is probably no better example of the gap between academic law and the practice than the very archetype of the law school experience: the first-year indoctrination in the law of contracts. Although the casebooks vary in their approaches, by early December, the typical student has been bamboozled by elements of doctrine that experienced practitioners know almost never come up over the course of a long career either as a transactional lawyer or as a commercial litigator. The unreality of the first-year contract law enterprise engenders questions like these:  why do clients and their lawyers spend so much time negotiating contracts that will never be litigated?  Why do so many contracts contain phrases that are no more than agreements to agree?  Why do so many contracts resort to weasel words and phrases that are no more than a means by which a present inchoate dispute might be punted into the future?  Why do we study consideration and offer-and-acceptance when those are rarely issues in the real world?  Indeed, it is a fair observation that only a tiny portion of the first-year contracts course involves the issue of contract interpretation, and practitioners know that the real world of contracts is almost exclusively about interpretation, and almost never about the vast majority of doctrinal issues – consideration, offer and acceptance, defenses, impossibility – studied in the course.

For an equally nascent take (and for a blog post far too long!) on how I'm approaching those questions, join me below the fold.  Comments are certainly welcome!

The Corporate Governance Debates Invade Botany (Or, Australia May or May Not Be Ready for a Female P.M., But It Will Always Have Acacias)

My next door neighbor and good friend is a noted evolutionary biologist at Harvard.  He's a theorist (not an experimentalist) with unbounded curiosity and good fellowship (thus, not surprisingly, an Aussie to boot).  One of my favorite pastimes of a late Friday or Saturday afternoon is to share a bottle of varying grades of wine and BS on subjects that invoke, among other things, law, adaptation, selection, philosophy of science, consciousness, game theory, and faculty politics.  This is merely to explain how I happened to get two papers from the scientific journal Taxon (Issues 2 (pages 613-616) and 4 (1188-1195) of Volume 59), which came out in April and August of this year.  He thought that I, as a lawyer, would find the subject matter interesting, and handed the pages over the fence early yesterday morning.  I do, because it sounds so much like the debates over corporate governance, namely, is the institution being governed a representative democracy or not?  (Full disclosure:  I have no clue about the International Botanical Congress, but I tend to side with people like Steve Bainbridge on the shareholder democracy issue:  a corporation is NOT a democracy.  That's because I don't buy the democracy metaphor to begin with, but more of that below.)

This is apparently a raging issue in the field of botany, but it takes a while to understand just what's at stake here.  The issue is one of botanical nomenclature.  There are substantive and procedural rules and recommendations for "conserving" the name of a genus, and they are set forth in the International Code of Botanical Nomenclature (the "Code").   It looks to me like it's the analog to what ICANN does for domain names:  making sure that there is uniformity in the use of particular signs as identifiers of something, whether it's a page on the World Wide Web, or a particular kind of plant or organism. 

In 2005, somebody proposed that the name Acacia Mill. be conserved with a new type (Acacia penninervis Sieber ex DC.) lest something like 1000 taxonomic groupings in Australia be required to go by a new name Racosperma Mart.  The effect of this would be to deny the name Acacia to the African-Asian A. scorpiodes (L.) W. Wight (= A. nilotica Karst.).  As you can imagine, the Scorpiodes camp objected to the attempt of the Penninervis camp to appropriate the Acacia name by way of taxonomic legislation at the 2005 Intenational Botanical Congress in Vienna.

But the botanical community is now beyond the merits of the debate and into matters that invoke the very rule of law.  The reason is that the Nomenclature Section debated and voted on the issue, and rejected the proposal, with 45.1% in favor, and 54.9% against.  But to quote the paper at 59 Taxon 1188 (2010):  "Surprisingly, the proposal was treated as having been approved by the Section's administrators, who ruled that it only needed to receive a 40% positive vote to be approved."  Here are the argument headings in the paper:

(1) Use of Article 14.14 allowing only a 40% positive vote for passage of [the Acacia proposal] was unjustified.

(2) Decision-making authority to amend the Code lies with the Nomenclature Section and International Botanical Congress, not with any Committee.

(3) Decisions are made only through a majority vote.

(4) The Vienna Nomenclature Section's own rules of procedure were not followed during the vote on [the Acacia proposal].

Can a corporate board take action (say, instituting a poison pill or maintaining a classified board or a particular executive compensation scheme) that, in its judgment is in the best interest of the corporation and the shareholders, even if a majority of the shareholders disagree?  Under the governance provisions of the Code, can the General Committee (which is composed of the secretaries of the other Committees [Spermatophyta, Pteridophyta, Bryophyta, Fungi, Algae, and Fossil Plants], the rapporteur-général, the president and the secretary of the International Association for Plant Taxonomy, and at least 5 members to be appointed by the Nomenclature Section) conserve or reject botanical names in the best interest of the scientific world as a whole, even if a majority of the members of the Nomenclature Section disagree?

Well, I think this turns out to be a metaphor problem, akin to the burning question whether Goldman Sachs's role in marketing synthetic CDOs is more aptly seen as "bookie" or "trusted confidant."  Is representative democracy the appropriate metaphor for corporate entities or scientific congresses?  Inquiring minds want to know.

It Was A Dark And Stormy Night

Congrats (?) to Seattle resident Molly Ringle, named earlier this week as the 2010 grand prize winner in the annual Bulwer-Lytton Fiction Contest.

Her entry?

For the first month of Ricardo and Felicity's affair, they greeted one another at every stolen rendezvous with a kiss — a lengthy, ravenous kiss, Ricardo lapping and sucking at Felicity's mouth as if she were a giant cage-mounted water bottle and he were the world's thirstiest gerbil.

Stories here and here.

Perhaps if I had Ms. Ringle's way with words I'd have better luck convincing law review editors to publish my UCC papers!  (Or am I dreaming?)