I'll be guest blogging over at PrawfsBlawg this month. I'll compile my posts here.
Apr. 16: Legal Ed's Past
May 30: How to make a better law review
June 1: Farewell! (Derek Muller)
Election law, voting rights, legal education, and miscellany written by Derek T. Muller, Associate Professor of Law, Pepperdine University School of Law
Posted in: Miscellany
I'll be guest blogging over at PrawfsBlawg this month. I'll compile my posts here.
Apr. 16: Legal Ed's Past
May 30: How to make a better law review
June 1: Farewell! (Derek Muller)
I first joined Twitter in 2009 under a pseudonymous account before restarting in May 2012 with my present account. I began to use it more over the last five years for a few reasons.
First, unfiltered news. There is no algorithm determining what content I see. Instead, it's simply the most recent content, all there, if I choose to follow those feeds. I prefer RSS for time-shifting, but it offers the same kind of function.
Second, professional disintermediated contacts. You can talk to people all over the world, in your field and related fields, in a very easy way.
Third, journalists live there. To the extent one is interested in sharing ideas with journalists, they frequently look to Twitter for news and sources.
Fourth, branding. The crass term is simply a reality--it is a way of gaining name recognition in a fairly simple way. (This is particularly true because I have a blog with content I frequently share to a broader audience.)
Fifth, engagement with law professors. Many other law profs are on Twitter, and the discussion occurs there in a way that, perhaps a decade ago, discussions might have occurred on blog comments sections, or listservs. It's a great way to virtually meet people outside of conferences.
But, over time, I found that these benefits has lost much of their appeal, and the cost-benefit analysis has moved me away from using Twitter.
There have been increased attempts from Twitter to tell me what I ought to believe is important, a new kind of filter to the experience. Trending stories are the first in that effort. Moments, another. Autocompleting search terms or displaying preferred search results, still another. And occasionally, it will display "live" events at the top of my feed that it believes I ought to heed. In each of these circumstances, I've found the content offensive--not because it somehow offended my morals, but because it was so utterly trivial and banal that I wondered why it would, in its vaunted algorithmic way, decide I would have any interest in these silly and trite things.
I have found that the reward from "status" on Twitter is simply not great. For journalism, it remains, sadly, nearly ubiquitous. A majority of media inquiries now start from a tweet; indeed, a non-trivial number of media mentions fail to even inquire of me and simply (lazily) cite my tweet. Using Twitter less means fewer citations in journalists' pieces, but such is the tradeoff. Furthermore, I've found that a lot of media now focuses on what people say on Twitter, and then how others react to those statements on Twitter--a deeply meta, and often, I think, deeply superficial way of thinking about newsworthiness.
Furthermore, I've watched a number of law professors (and others) lose a significant amount of their credibility (in my eyes, at least, and I think, to some degree, in the eyes of at least some others) by succumbing to the allure of fleeting social media fame. It moves beyond branding into a quasi-celebrity status. It's something that I want to separate myself from.
I've experienced moments like this. Consider this tweet, which went somewhat "viral" at the end of 2017. I have lacked the self-control in terms of time spent on the medium. I've reveled in the dopamine pleasure of notifications telling me that someone, anyone, has read my stuff, or interacted with my stuff, or acknowledged my existence in this pithy format. And this kind of "viral" sharing was utterly unfulfilling--fluffy stuff, dopamine hits without any meaningful return.
The good of Twitter, I've found, has increasingly become banal as a form of escape. The pleasant or non-controversial sides of Twitter feel increasingly vacuous (or, at least, I've grown quite aware that they are so). Pleasant people exchanging superficial and trite hashtag greetings and emojis have left me wanting.
And perhaps most of all, I found visiting Twitter a joyless, even painful, experience. It was a chore, or a necessity, not a pleasant way of learning about the news. If it's not the banal, it's the stranger shouting angrily, or the self-laudatory sarcastic point that demolishes or obliterates or decimates one's (usually political) enemies. I found my blood pressure too quickly and easily rise. I found myself defensive, typing out a hasty or angry or sarcastic response, only to delete it. (Occasionally it escaped my self-editing, to my detriment, I think.)
I would find myself thinking lamenting the lack of subtlety. Or, more significantly, the lack of the ability to have an actual conversation. I found total strangers willing to say consistently hurtful things (fortunately, only rarely to me; too often, to many undeserving targets). I saw the herd mentality of social media, where errors spread like wildfire or outraged mobs congregate. I found that many of the cutting tweeters would be perfectly pleasant to have a conversation, even a disagreement, with when face to face, perhaps for hours over a meal. Twitter has been destructive to that end, at least for me.
I realized that I wanted to read more long-form articles, and that I was dedicating too much time to the moment. Many pieces I was reading were not deep or interesting, but designed to secure a click from Twitter with a controversial or sensation headline (hardly a new practice in media, of course, but one that increasingly annoyed my consumption of news in this format). I receive a print Wall Street Journal every day, and the curated content there is sufficient for most major news, even if it may take 24 or 48 hours to dig deep into "breaking" events. I also subscribe to The New Criterion and First Things for long-form cultural commentary, and I dedicate too little time to those things. Finally, I was perpetually reading too few books (in particular too little fiction), and I needed to cut trivial reading.
I've chopped probably 90% of my Twitter use this year already. I hope to cut it even further. I will still use it, of course, just less frequently. I'll tweet rarely, but I'll do so to, say, share this blog's content.
This is not to say that others have not calculated the cost-benefit differently, and that others might not do much better. Others have thrived on Twitter, and I've come to deeply respect (in some ways, more deeply respect) the work of many because of Twitter. That's a cost, and a loss for me.
These are also, of course, generalizations. There are exceptions to every single thing I've said. And others' experiences may well quite differ from my own.
And it's not to say that it might not improve. Professor Carissa Byrne Hessick has offered a thoughtful and measured take on best practices for Twitter, one that I hope will be widely shared and adopted in the future. (UPDATE: Professor Josh Blackman today posted his own helpful and thoughtful guidelines.)
For me, though, it's time to cut a lot of my use of Twitter. I hope to distance myself from a medium that, I think, on the whole, is more cost than benefit. I'll revisit my habits on an ongoing basis. But after a few weeks with the app uninstalled, and interacting very little with content in the Twitter stream, I feel fairly confident that I'll keep going like this for some time. I hope to blog slightly more (longer forms of such thoughts with more nuance and editing). I hope to read far more.
And I hope to keep away from the tyranny of the urgent for a little while.
Some time ago, I thought about making a map of the United States based on the most significant Supreme Court cases from each state. Specifically, I'd rename the states after the party opponent in which the state was the principal opponent in the case caption.
"Significant" turned out to be a challenge, so I opted for "most cited" according to Westlaw. That led to the results below.
It's worth noting that some of my searches were inconsistent with Westlaw's limited capabilities, and I may well be wrong on some--please correct me if so! I simply sought the most cited cases from each state.
It turns out that there are many cases I imagined were far more significant, but that didn't meet the "most cited" in a state. Those included Alabama (J.E.B., NAACP, & Miller), Arkansas (Epperson), California (Miller), Connecticut (Palko), Florida (Riley), Louisiana (Hans), Michigan (Long), Missouri (Holland), New Jersey (T.L.O.), New York (United States), Ohio (Mapp), Oregon (Muller & Mitchell), Pennsylvania (Prigg), South Carolina (Katzenbach), South Dakota (Dole), Texas (Johnson & Lawrence), and Virginia (Loving, Black, & Cohen). So while a more intriguing map might have been a kind of public vote about the most significant Supreme Court case to arise out of each state, I opted for the easy way out.
UPDATE: Special thanks to Danny Lewin, who notified me of the terrible error of including Strickland as a Washington case and not a Florida case! Washington is now Crawford.
Prospective law students, take a moment to engage in logical reasoning while waiting in line for a delicious burrito.
You read the sign above at a local restaurant. Based solely on the assertions in these statements, which of the following statements is true?
A. Ingredients without GMOs are better than ingredients with GMOs.
B. Chipotle's ingredients are better now than they were in the last 21 years.
C. Chipotle's ingredients are worse now than they were in the last 21 years.
D. It is unknown whether ingredients without GMOs are better than ingredients with GMOs.
Answer: The correct answer is D. All that is known about ingredients with GMOs is that they are "n[o]t . . . better" than ingredients without GMOs. That may also mean that the ingredients are of the same quality. A, B, and C are all based on a value judgment whether ingredients without GMOs are better. Granted, the sign is designed to offer the impression that that ingredients without GMOs are "better," given the assertion that Chipotle "ha[s] been striving to make our ingredient better," and here is a step regarding its ingredients. But the first sentence cannot cure the lack of information in the second sentence.
This blog, sometimes, is about elections. Candidates in elections behave differently than men and women serving as representatives or senators or governors or presidents. They say different things. They emphasize different things. It's a very real part of the political process, whether those differences are good or bad, whether those differences are right or wrong.
It is one thing when presidential candidates have promised, or currently promise, to recognize the Armenian Genocide. And not with recognition of a "tragedy," or of "terrible events." But of using that word, "genocide."
The word "genocide" obviously evokes serious reactions. The Holocaust is probably the first that comes to mind. Poll most Americans about another genocide, and you might find a few scattered responses about Rwanda, Bosnia, or Cambodia.
But few Americans would call to mind the Armenian genocide. It began in 1915, one hundred years ago, in the middle of the Great War. More than a million Armenians were killed. Indeed, the word "genocide" was coined in 1944 in the midst of World War II, but it arose upon reflection of the history of such killings, for Adolf Hitler was not the first--the Armenians had been sought out before that. It was striking when I first read of it at some point in college--I had been completely unaware of it. (I've have a deep interest in the history of World War I ever since.) The Armenian Genocide is not widely taught. In many places, it is essentially forgotten.
But politicians behave differently as candidates than they do as elected officials. Both Presidents George W. Bush and Barack Obama promised as candidates to recognize the Armenian Genocide, and both refused to do so when they took office. The office changes behavior--there is fear of offending American allies with the word "genocide," and politicians behave differently. But it is perhaps that very power of the office that should be used to call Americans, and the world, to recognize and acknowledge and reflect upon that genocide, that historical fact, that truth that some would deny in the hope that all would forget.
April 24, 2015 marks the one hundred year commemoration of the Armenian Genocide. Pepperdine Law has an active and engaging Armenian Law Students Association, which commemorated the event this month through some moving tributes. Many others around the world will also remember that genocide. I close, then, with the right words from President Ronald Reagan's proclamation, April 22, 1981:
"Like the genocide of the Armenians before it, and the genocide of the Cambodians which followed it -- and like too many other such persecutions of too many other peoples -- the lessons of the Holocaust must never be forgotten."
Josh Blackman recently noted that Judge Stephen Reinhardt has the "uncanny ability to be on the right panels," and asked what the odds are that he could serve on the three recent panels, one regarding California's marriage amendment, another on striking jurors on the basis of sexual orientation, and a third on other Ninth Circuit marriage cases.
The odds are about 1 in 1000.
That's slightly deceptive--it's not unique to these three cases. It's simply because the odds of being on any three random panels are 1 in 1000 in the Ninth Circuit.
But here's now the math works.
There are 29 active judges in the Ninth Circuit. The odds of being on any given panel are
1/29 + 1/28 + 1/27, or 10.72% 1/29 + 1/28(28/29) + 1/27(27/29), or 10.34%.
But there are also 16 senior judges, and one of them may sit on a panel with two active judges. In those cases, the odds are
1/45 + 1/29 + 1/28, or 9.24% 1/29 + 1/28(28/29), or 0.69%.
So assuming the odds of selecting the first judge are completely random, there is a 29/45 chance that the first set of odds applies, and a 16/45 chance that the second set of odds applies for an active judge. That means we have
10.72 * (29/45) + 9.24 * (16/45), or 10.2% 10.32 * (29/45) + 6.89 * (16/45), or 9.10%, that an active judge will be selected for a given panel.
If we're looking at three panels, we take those odds and raise them to the third power. That leaves the odds of serving on any given three panels as
0.106% 0.075%, or something a little over 1 in 1000.
There are a number of caveats. Not all judges are "on" at the same time, and some pick different months to be available for panels, so the number at any given time is often fewer than 29. Senior judges have a lower caseload, and their odds of being picked may or may not be as certain a figure. Sometimes visiting judges, such as district court judges or senior judges from other circuits, may sit on the panel. Not all of the vacancies were filled on the Ninth Circuit in the last couple of years, and the number of senior judges fluctuated slightly in that period, too.
Yes, there's deeply limited data. But that's the high-level math behind any given Ninth Circuit panel selection.
Update: Roger Ford tweets, for just Ninth Circuit active judges, "It’s 3/29 or (1/29)+(1/28)*(28/29)+(1/27)(27/29)." That's more accurate--it factors in the odds as to whether a given judge has been selected for the first or second slots on the three-judge panel. And that's about 10.3%, slightly lower odds than my original math, but still comes out to just about 1 in 1000.
Update II: I've attempted to fix the math... but this is the peril when it's been a decade since my last math class. Thanks for all the patience with my rough efforts.
Ray Bradbury has long been one of my favorite writers. Although he wrote "The Murderer" in 1953 and died in 2012, Ray Bradbury offered this vision of the future--which applies as much to the new release of the Apple Watch as it does to most contemporary technology, but particularly given the ubiquity of two-way "wrist radios," as he describes them.
"The Murderer" is the story of a man tired of technology--miniaturized, pocket-sized, constantly keeping man "in touch" with fellow man--that chirps incessantly at him. He takes matters into his own hands:
"Then I got the idea of the portable diathermy machine. I rented one, took it on the bus going home that night. There sat all the tired commuters with their wrist radios, talking to their wives saying, 'Now I'm at Forty-Third, now I'm at Forty-fourth, here I am at Forty-ninth, now turning at Sixty-first.' One husband cursing, 'Well, get out of that bar, damn it, and get home and get dinner started, I'm at Seventieth!' And the transit-system radio playing 'Tales from the Vienna Woods,' a canary singing words about a first-rate wheat cereal. Then--I switched on my diathermy! Static! Interference! All wives cut off from husbands grousing about a hard day at the office. All husbands cut off from wives who had just seen their children break a window! The 'Vienna Woods' chopped down, the canary mangled. Silence! A terrible, unexpected silence. The bus inhabitants faced with having to converse with each other. Panic! Sheer, animal panic!"
"The police seized you?"
"The bus had to stop. After all, the music was being scrambled, husbands and wives were out of touch with reality. Pandemonium, riot, and chaos!"
The inset image, featuring the gleeful murderer preparing to use his machine on all the chattering machines around him, is from the 1990 television adaptation in an episode of The Ray Bradbury Theater.