Begging The Question

I took the long weekend off from pretty much everything, including blogging and blog-reading. A few thoughts collected from over the weekend.

1. I’m still really digging Pandora, the preference-matching music site I mentioned last week. It’s like listening to someone else’s iPod, in that you never know what’s coming next, but it’s pretty uncanny in sending similar music. It’s not perfect — note that it limits how many times you can skip ahead in an hour, so choose those skips wisely. And when you add a new artist to your station, it tends to load you up on them for a while, before getting back into the mix. (I eventually had to split my set of favorite artists into two stations to solve this.) But overall, it’s a lot of fun, and it’s pointed me to lots of bands and songs I wouldn’t otherwise have found.

2. Prof. Yin had an interesting post about differing self-interest-protection norms in the restaurant business and lawyering. He notes that lawyers in litigation have to take steps to protect their interests, for example by not accidentally turning over too much information in discovery. At a restaurant, though, the norm might be that customers will bring it to the server’s attention if they weren’t charged for something. But (assuming such a norm exists, and I think among most honest people it would), it’s not just because we’ve excused the retsaurant from protecting its interests. It’s because we’ve already consumed the food, and it’s fair to pay for what you order. The law analogy would be if the firm accidentally underbilled the client, for example by omitting Associate Yin’s fine document review. The client has consumed those efforts, and it’s only fair that the client pay for them. The difference is that, in the restaurant context, the customer has the information; the customer is much more likely to remember what he or she ordered and ate than a busy server working several tables. In the legal arena, the firm has the information; the client won’t know who worked on a case for how long until the firm sends a bill. In the discovery mix-up Prof. Yin posits, the firm receiving the mis-sent document has the information, and the other firm lacks it.

So, the question is really about when we decide it’s fair to obligate the information-holder to protect the interests of the information-lacking party. Even in the “adversarial” legal system, we don’t always leave the parties to fend for themselves. This is especially true in the criminal context, owing to the unique role of the prosecutor. The prosecutor’s obligations under Brady v. Maryland are the most obvious instance: the prosecutor is required to turn over potentially exculpatory evidence to the defense. In civil discovery, the roles of the parties are different, and the question is closer.

3. I finished King Dork over the weekend. Review to come, sometime. In brief: I really enjoyed it. Here’s the author’s blog. I didn’t realize until I was finished that it’s officially classified as “teen/young adult.” That probably explains why I couldn’t find it in the bookstore. As PG notes in regard to The Once and Future King, there’s nothing wrong with adults reading books aimed at adolescents. And I re-read The Westing Game last year. Oh, and I suppose a few bajillion Harry Potter fans would concur. Anyway, I’m not going to make a habit of shopping in the “teen” section of the store, but I think a good book is a good book, so I didn’t feel weird about liking King Dork. Anyway, more on the audience when I review it, if I can remember.

4. I’m not going to whine for a review copy of Jeremy Blachman’s Anonymous Lawyer. But I checked out the Anonymous Law Firm mock site, which Jeremy produced as a tie-in for the book. There’s a link here. There are some funny things on there, especially the “Diversity” page. Also, if this story is true, real life is still stranger than fiction.

5. Is Centinel still alive? Just wondering. Surely someone’s done something worth mocking since he last posted in February.

6. Crazy story out of Atlanta. A group of teenagers had been undertaking a series of robberies, and thought they found a new victim. They accosted a 36-year-old waiter walking on the street. The four robbers had a shotgun and a .380 pistol. But the guy they picked on was an ex-Marine with a pocketknife. One of the robbers ended up dead; another is in serious condition at the hospital; the others are under arrest. The Marine had a cut and a bruise.

7. Will Baude and Marty Lederman, among others, are discussing Judge Richard Posner’s review of the two new books about Supreme Court clerks. (They have all the links, so I’ll send the traffic to them.) One idea Posner and Baude (who used to work for Posner) endorse is the publication of cert memos, to give the public a look at the reasons behind denials of cert. I wonder if they think judges should make their clerks’ bench memos public as well. I’ve gone on record (somewhat tongue-in-cheek) in favor of the philosopher-king model of the imperial judiciary, so my feelings are at best mixed. I think I agree with Lederman’s suggestion that we would be unlikely to learn anything new, especially if the memo writers start being extra-careful about what they say, lest posterity be watching. There’s still always going to be some subjectivity to the criteria for granting cert, especially if the ground is something as nebulous as a sense that the case isn’t “important enough.” Unless the justices are required to reveal their inner thoughts, we can’t ever really know the whole story. What will a perfunctory memo add to that? Baude, I presume, would place the burden of justification on those who would keep such items secret. I don’t the risk of “chilling” candor is that great, although my guess is the justices would disagree.

I suppose if I were forced to come up with something, I’d offer this. Now, with “secret” cert memos, there’s still a good chance that the public will eventually be able to examine them when a justice’s papers become open to the public. Yes, it may be years later, but that’s the system we have with lots of classified documents from the executive branch. Ordering the publication of cert memos runs the risk of driving some of the discussion “off the record,” into private conversations between the justices and their clerks. History is unlikely ever to learn the content of those chats. At best, we might get some potentially inaccurate notes of the discussions. Perhaps the parties will be more candid if they know that the memos won’t be made public at least until the justice is off the bench. (That’s the norm, at least; there was some controversy when Justice Blackmun’s papers were made public while several of his colleagues remained on the Court.) I don’t know if this reason is convincing to anyone, but there it is. I wonder, though, if Will would articulate why it’s so much better to see the memos now, rather than a few years later.

8. I’m thinking about a couple of blog projects, and occasionally musing about starting a new, “spin-off” blog. I’m not sure about any of these yet, so there may or may not be announcements in the near future. But I’ve got big dreams. Alas, I’m kind of busy at work these days, so blog-time is spotty. Thanks for hanging in there. At least I’m posting more than Centinel.

I promise I haven’t quit blogging. I just don’t have anything to write about. Feel free to suggest something, by the way — why should I have to do all the work here?!

Anyway, I’ve spent a lot of time today reading about horses, after Barbaro’s terrible injury yesterday during the Preakness. I don’t follow horse racing too closely. I guess it’s like the Olympics: I pay attention during Triple Crown season and then forget about it. I found this very good “Texas Monthly” story about the death of super-stallion Alydar. Investigators later discovered evidence indicating Alydar was probably murdered for insurance money. It reminded me of the sad death of Pie-O-My in one of the all-time best “Sopranos” episodes.

There were a lot of references in Barbaro stories to other ill-fated horses like Go For Wand (pictures here) and Ruffian (semi-cheesy movie here). There’s something uniquely tragic about a horse on the muscle, wanting to run, so full of adrenaline, not even knowing it’s hurt, but just wanting to do what it’s trained to do.

On the other hand, there’s some uniquely amazing about a thoroughbred performing at its fullest potential. This is why Seabiscuit was such a hit. This is why Barbaro’s injury was so disheartening. After his fantastic performance running away with the Kentucky Derby, he looked every bit the champion and a strong bet to be the first Triple Crown winner since 1978. Maybe he wouldn’t have been one of the all-time greats, but he was undefeated before the Preakness and seemed to outclass any other three-year-olds running.

I’m sure that sooner or later, a horse will find that ephemeral combination of skill and luck and pull off a Triple Crown. But the farther we get away from the heydey of three Crown winners in six years in the mid-1970s, the less likely it seems. I am convinced we’ll never see a horse like Secretariat, though. Maybe Man O’ War was better overall, but we don’t have the video to prove it. But Secretariat was the best in the biggest races.

If you feel bad about Barbaro, watch the tape of Secretariat’s Triple Crown-clinching run in the 1973 Belmont Stakes. Here’s a good version, although the background music gets a little loud at times. Every time I watch it, I get teary-eyed. I can’t even imagine another athletic performance as dominating and thrilling. I know it’s coming, but I still can’t ward off the chills I get when the announcer says, “Secretariat is widening now! He is moving like a tremendous machine!” The “sport of kings” is too often dirty and depressing. But I watch Secretariat’s brilliant run at Belmont and feel a little better about it. R.I.P Big Red, and good luck Barbaro.

“The Atlantic Monthly” website features articles from the magazine’s 150-year history. I happened upon a 25-year-old article about diamonds. (Subscription req’d; sorry. Will email upon request.) It details the practices of the De Beers diamond cartel, and its innovative, highly successful advertising campaign. In short, the diamond market is built on a lie about the value of diamonds. The stones don’t have any great intrinsic value. Their supposed scarcity is manufactured, as plentiful quantities are available worldwide (especially in millions of jewelry boxes).

One particularly interesting nugget is that De Beers spent decades creating the notion that the size of the gem in a gift diamond engagement ring was a symbol of the giver’s success and the value he placed on the recipient. (I use the gender-specific pronoun deliberately since men purchase virtually all engagement rings.) But, in the 1960s, a huge diamond mine was discovered in Siberia. However, it produced mainly smaller diamonds. So De Beers switched course and created the market for jewelry made with many smaller stones as anniversary gifts. So, Americans bought into a fake “tradition,” purchased tons of diamonds mined in Soviet Russia during the height of the Cold War, with profits going to a South African cartel helping to prop up the apartheid regime. Neat, huh? (Eventually, De Beers decided that the effort to get Americans to buy smaller diamonds was too successful, and re-started the advertising for larger rocks. Consequently, a decade before the SUV craze, Americans had decided that, when it came to diamonds, bigger was better, regardless of quality, as many of those large diamonds were flawed.)

The point of the article was that prices (and profits) were falling as De Beers struggles to maintain a monopoly. And, if people who held on to diamonds for generations ever decided to sell their stones (after all, that’s usually what happens when people have something they think is valuable; not even real estate is owned “forever”), the market would bottom out. Okay, so none of this was a great surprise. It wasn’t as if I were suddenly enlightened about the “truth” about diamonds once I read this article. So all that was just a bit of background. But it got me thinking.

There’s a line in the classic western movie The Man Who Shot Liberty Valance that goes, “When the legend becomes fact, print the legend.” Similarly, I wonder if diamonds perhaps do have that psychological value that De Beers has been marketing for 100 years. In that sense, they are worth something. Now, I don’t believe that feeling is rational among diamond-buyers (and, more importantly, diamond-receivers), but one can’t deny it exists, even if it’s the product of deception. Plus, we’re living in the digital age — an age of intellectual property, and maybe intrinsic/corporeal value isn’t the most apt measure of worth anymore.

I’m curious about your thoughts on this. For one thing, I know that all advertising is to some extent deceptive. But De Beers takes the cake, as far as I’m concerned. At least Disney admits that it’s faking the scarcity of its movies when they “go back in the Disney vault.” But if enough people believe the deception, does it become the truth? Are diamonds really “forever” just because we hold on to them forever? Would a fiancee read this article and decide that her husband-to-be’s money is better spent on something other than a big fat ring? What would it take to undo the diamond myth? I’m not necessarily saying that everyone should stop buying diamonds in outrage, or even to have people acknowledge that “Yes, I know I’m irrationally overvaluing this diamond, but I want it anyway.” I guess what I’m wondering is if the irrational ones aren’t the ones who undervalue diamonds by arguing solely based on corporeal worth (and, in turn, chide diamond buyers for being suckers). If the diamond legend has become fact, should “The Atlantic” print that?

I got an SOS email from a friend today: “I have not heard anything from you in a while via email and the blog has been quiet for a week almost. Let me know what is going on with you.”

This is why I feel bad when I don’t post. People are counting on me! Okay, the short version is that I’ve been busy with various things, and bereft of anything interesting to blog about. But I’ll have an update posted tomorrow, I think, and I’ll get to work on some longer-term projects that should at least provide some content. Thanks to everyone for checking in; come back soon.

“Dilbert” creator Scott Adams has a blog, and it’s often humorous and often insightful. Not always, though. Sometimes Adams goes for the glib or facile explanation for something and doesn’t connect all the dots.

A case in point: today’s post about the “income gap.” Perhaps in light of yesterday’s strip, concerning wealth redistribution, Adams suggests that the reason poor people are poor and rich people are rich is that poor people are too stupid to vote for candidates who redistribute wealth. After all, Adams notes, there are more poor people than rich people, so if they just got behind a Robin Hood candidate, their troubles would be over.

Actually, the glib answer is that poor people don’t vote that way because they think they’re going to be rich one day. Another answer is that if Pres. Hood gave the poor all the wealth now held by the rich, the formerly poor would become Hood’s targets, in a never-ending cycle until wealth were distributed exactly equally. (At which point, of course, some would waste it and be poor, and some would invest and get rich, starting the whole mess all over again.)

Of course, given yesterday’s date, part of me thinks this is all a satirical effort to see how many people will comment at Adams’s blog endorsing wealth redistribution. Don’t forget, kids: Communism bad!