Dave’s Whiteboard

I’ve been working on courses for people who want to become paralegals. I knew at the start that my direct experience with lawyers and the law was limited, but I didn’t realize how much so.

Take “the law,” for example. I would have said “the law” means…well, laws. The statutes passed by Congress, or the state legislature, or the county, or the city. As in, “it’s against the law to…”

That’s true, so far as it goes. All these things are statutory law. So too are the regulations from certain bodies like the Food and Drug Administration. Those are administrative law.

What I hadn’t thought much about was another ocean of law — case law.

I did realize that statutes are not always that well written. Even when they are, two parties can reasonably come to two different conclusions about what the law means. To resolve the disagreement, they go to court, where the judge renders a decision.

If the case is appealed, the appellate court does not re-hear the case. Instead, the court looks how the law was applied and, very often, how other courts have interpreted the law.

Case law is a bedrock of the Anglo-Saxon system: the notion that courts should do what courts have done. When an appellate court issues a decision, that decision can become mandatory authority for other courts within the appellate court’s jurisdiction, and persuastive authority for others.

That latter means, “We don’t have to listen to the Seventh Circuit, but they seem to know what they’re talking about.”

So, for example, the idea of a constitutional right to an attorney emerged from case law (Gideon v. Wainwright, 372 U.S. 335 — state courts required to provide counsel in criminal cases to indigent defendants), as did the idea that the police must advise you of your individual rights before questioning you (Miranda v. Arizona, 384 U.S. 436).

All of this to remind myself that things are usually more complex than you think. You’ll see lots of huffing in Congress and in the media about “unelected, activist judges” who should just “interpret the law, not create it.”

(And generally, that’s a sign the speaker disagrees with a recent opinion.)

What that bromide skips over is the fact that in interpreting the law, the court ipso facto is handing down case law that other courts — and other plaintiffs, and other respondents — can and will consider in the light of their own situation.

USCS photo by tellumo / Adam Engelhart.
Arizona police photo of Ernesto Miranda from PBS.org.

My current project involves working with statutes and with case law. One of my project partners has built a learning assignment around a court case. Eric Turkewitz has the details (as do many others, including the Boston Globe), but this is the quick summary:

Dr. Robert Lindeman was defending against a malpractice suit in 2007. While Lindeman was on the stand, the plaintiff’s attorney asked if he had a medical blog. He said he did. She asked if he was Flea (posting on the now-vanished drfleablog). He said yes.

The case was settled the following day.

Flea, it turns out, had been blogging before the trial began. He discussed meeting with “an expert on juries” for advice on how to behave on the stand. He also blogged during the trial, commenting on the judge, the sleepy jurors and the appearance of the plaintiff’s attorney.

Ironically, in a PDF that claims to have been made of Flea’s site before it was taken down, Flea reports his lawyer suggesting that the opposing side “may pull articles from Flea’s ‘legitimate’ web site to use against him.”

This apparently did not cause Lindeman to tell his attorney, “You know, I have a blog, too.”

I don’t know anything about the merits of the court case. I do know that a client needs to help his attorney anticipate potential difficulties. And that blogging, while free, can have costs.

Stethoscope photo by happysnappr / Adrian Clark.
Megaphone photo by LarimdaME / Gene Han.

I once heard DNA co-discoverer James Watson speaking at a lecture. Referring to some research, he said, “We thought we were being stochastic, but we were just guessing.”

I’d like to think that I’m integrative, but mostly I just happen across unassociated things. Like, for instance:

Michael Feldstein at e-Literate has a guest post by Jutta Treviranus. You Say Tomato… looks at designing the user-experience interface for distributed learning. Treviranus notes that UI designed is often left to programmers and often happens at the end of the development process.

As part of her work with the Fluid project, Trivarnus and her colleagues “have found ourselves at odds with common or traditional notions integral to pedagogy, software design, user interaction design, usability, and accessibility.”

The Fluid approach to user experience design and usability testing is also at odds with standard or commercial UI design methods. These methods assume that the user really doesn’t know what is best or what they want. Users are not self-aware, what they report doing is not actually what they do and asking users what they might want does not lead to innovation because they extrapolate from what they know and are most likely to ask for a faster horse carriage than a car. Consequently the assumption is that any proposed design requires extensive user testing with objective observation and data gathering from a large number of representative users.

(I’ve always felt a bit sheepish about tinkering with my off-the-shelf software — I have created buttons In Word to prevent tables from breaking within rows, to insert section breaks, and to print just the current page. That’s pretty low-level customization, but a lot more than the average person tends to do.)

The apparently unrelated item that came to mind as I read this was John Tierney’s article in Monday’s New York Times blog, A New Frontier for Title IX: Science. (Title IX is the U.S. law barring sexual discrimination in education, and till now has applied mainly to sports. The article deals with the question of similar discrimination in science.)

Lots of things I didn’t know (it’s an ever-growing list):

• In the U.S., 50% of med students, 60% of biology majors, and 70% of psychology PhDs are women.
• Less than 20% of physics PhDs are women.

Tierney cites research by David Lubinski and Camilla Persson Benbow suggesting that the differences in choice of field may have more to do with an individual’s preferences than overt discrimination. Similar research by Joshua Rosenbloom and Ronald Ash made this less-than-astonishing conclusion:

…Information technology workers especially enjoyed manipulating objects and machines, whereas workers in other occupations preferred dealing with people.

Once the researchers controlled for that personality variable, the gender gap shrank to statistical insignificance: women who preferred tinkering with inanimate objects were about as likely to go into computer careers as were men with similar personalities. There just happened to be fewer women than men with those preferences.

What struck me (for this post of my own) was not the gender gap per se, but the connection between the object-manipulators in IT, and the end-users of software that Treviranus discussed in her user-interface post.

And I figured a post combining user interface, open source, and potential on-the-job discrimation might stir up a thing or two.

Photo of Rosalind Franklin (whose X-ray images helped lead Watson and Crick to their model for the structure of DNA)
from the National Library of Medicine.

Language Log’s post for Bastille Day, fittingly enough, was Dare to be bilingual.  Eric Bakovic has had a series of posts related to English-only, English-first, and the effort to make English the official language of the United States.

In the outer fringes of vented spleen, Bakovic quotes someone’s opinion that “all ATM machines which use more than English for transactions should be closed.”  (Maybe there’s more to the Federal Reserve’s discount window than I realized?)

Yesterday started off reasonably enough. I had gotten behind schedule on a deadline, but I received a stay of execution — the project manager more or less agreed with changes I proposed that ended up slowing things down.

Settled in to work bright and early. Open the in-progress documents, launch the browser to reach the content-sharing site.

Hmmm. Nobody home. Check e-mail. Hmmm.

I can reach the wireless router (though it’s hard going once I get there; the new interface was written originally in Korean, I think, and rewritten in Estonian before translated again to English). But I can’t get past the router.

My usual solution is to kick the modem. Not literally (I had to pay for it). I just go down to the kitchen, unplug the Digit Twins, pretend to wait 40 seconds, and plug them back in again.

Still no good. More troubleshooting-by-walking-around: I went down to the basement to check the TV.

Hmmm — we’re getting cable pictures. We’re just not getting cable data.

Back to the office. I call the cable company. Six voice-mail presses and 20 minutes later, I get a customer service rep whose previous job had been announcing departures at the Port Huron bus station. The outcome: they can’t even see my modem. Earlier service call? Tomorrow between 11 and 3.

I work for a while, rekick the modem (see “superstitious behavior“). Later, breaking from the excitement of actual work, I click a few shortcuts on my browser — and I can get to my blog. Not a cached page, either — the real thing.

I was about to shut off the firewall, as a test, but instead I lowered its setting. Bingo — mail, Google, the whole shebang. So I complained via my Facebook status and got back to work.

Hours passed in which the only thing I looked at online was the Legal Information Institute at Cornell. I went back to Facebook to find a note from Kate. Her partner had fallen victim to another Microsoft security update which just happened to knock thousands of ZoneAlarm users off the internet.

I’m not really that connected — I can go days with my cell phone in the side pocket of my car (which I don’t use every day). I have Twitter, but I’m not sure why: following 10 people isn’t enough, but I have no desire to follow 500. And I believe that a company buying one of those picture-and-text ad on the left side Facebook is doing the digital equivalent of selling leisure suits.

I am glad, though, that I took the time to rant, and that Kate responded. And my wife, who also uses ZoneAlarm, was even happier — because I could warn her about this tiny glitch.

“Lock gates” photo by Simon Lieschke.