September 2006 Archives

Several weeks ago in Evidence we were discussing case out of California. The case was from the mid-1960s and involved a young woman who had been brutally murdered. Underneath her body were found the bottom halves of a pair of silk stockings, recently worn. Her legs, when she was found, were bare. Interviews with people who had seen her earlier in the day revealed that she had been wearing a pair of stockings similar to the ones found underneath her.

The investigation eventually led to a young man. The police obtained a warrant to search his apartment. Inside his dresser drawer were found the tops of several pairs of silk stockings, the bottoms having been torn off. Three more pairs of stocking tops were found hanging from the curtain rod in the bathroom. The man was arrested. Forensic examination revealed that none of the stocking tops in the man's possession matched the stocking bottoms found under the victim; the stocking tops did not physically tie the man to the murder.

The question posed to the class was whether the stocking tops could nonetheless be presented as evidence at trial. Students were called upon and, in the professor's usual aggressive style, arguments for both sides were coaxed out of them.

One of the basic principles of evidence is the balance between relevance and prejudice. A crime or a cause of action has elements that need to be proven. Relevance is a measure of how much a piece of evidence tends to prove (or, in the case of the defense, disprove) one of the elements. Prejudice is a measure of how much a piece of evidence will sway a jury to vote one way or another for reasons unrelated to the elements at issue in a trial. The tricky part comes when a piece of evidence is both relevant and prejudicial. There the question of whether to allow the evidence turns on whether its probative value is outweighed by its tendency to sway the jury for the wrong reasons.

So: The stocking tops. They're not a direct physical link to the crime scene. So they're not strongly relevant. They're still fairly relevant, though. We can be fairly sure that the killer was someone who collects stocking tops. The defendant collects stocking tops. That's pretty good circumstantial evidence in favor of guilt. You probably couldn't convict solely on the basis of the stocking tops, but it would help the prosecution's case.

After extracting this analysis from a succession of students, the professor turned to the next person on his list.

"So, Mr. Blank, you're representing the defendant. How do you keep these *stocking tops* out?" (Wherever I put the words "stocking tops" in quotes, imagine the professor rapidly switching from a bombastic mode to a tip-toey, exaggeratedly salacious tone)

"Ummm... I guess I would argue... that they're prejudicial?"

"Very good! And what's so prejudicial about *stocking tops*!" (Here the professor raises his eyebrows suggestively)

"Ahhh... They... don't really tie the defendant to the crime scene?"

"No, no, that's about relevance. I want to know about prejudice? Why would *stocking tops* be prejudicial?"

"Well, they'd make the jury think they were more significant than they are."

"Maybe I haven't made prejudice clear. Prejudice is about making the jury convict for reasons unrelated to the crime. So, I ask again, what's so prejudicial about *stocking tops*? Why would *stocking tops* make the Jury dislike the defendant?"

"Well....Ummm......"

"BECAUSE HE'S A PERVERT!!!"

At this point I got a little bit nervous.

"NORMAL men don't collect STOCKING TOPS! They don't even collect STOCKING TOPS in CaliFORnia! Show of hands! What men here are from CaliFORnia?"

I nervously raised a hand to about shoulder-height from my seat in the back row. The professor called on a guy in the middle benches.

"You're from CaliFORnia? Tell me: Do YOU collect STOCKING TOPS?"

"No, sir."

"See? They don't even do that in CaliFORnia! You want to win this case, you have to keep those stocking tops out! You have to argue that if the jury catches one sight of those stocking tops, they'll instantly convict your client for being a pervert without looking at the murder trial!"

I am, in retrospect, glad that I didn't get called on. Had that happened, the dialogue would have gone a tad differently:

"You're from CaliFORnia? Tell me: Do YOU collect STOCKING TOPS?"

"Just the tops? No, I don't collect just the tops of stockings."

I have my google homepage set to provide me with the headlines of the most recent three posts at Simply Recipes, a food blog. Simply Recipes periodically features Shopping Alerts, designed to direct the readers' attentions to notably good deals on kitchen appliances and cookware.

For the last couple of days, this has meant that every time I open my browser, I am greeted with an alert that I can currently get a Mario Batali Dutch Oven at a deep discount.

I'm not sure there's any amount of money that I would pay in order to receive a dutch oven from Mario Batali. In fact, I would bet that few are anxious to avail themselves of Mario Batali's generous offer. Perhaps this is why Mr. Batali's dutch ovens are now being sold at a cut rate.

I'm currently sitting in evidence. The professor, probably the scariest I've had since coming here, just got done giving one of the on-call students a thorough tongue-lashing for getting an answer wrong.

The question concerned Federal Rule of Evidence 407, which excludes evidence of subsequent remedial measures for purpose of proving liability. For instance, suppose I own an apartment building. The lightbulb goes out in the stairwell. One of the tenants slips, falls, and sues. I have my building manager change the lightbulb. The Federal Rules of Evidence prevent the tenant from introducing evidence of the lightbulb change. The Rules are this way for policy reasons; if I knew that changing the lightbulb would be taken as proof of my guilt, I'd be tempted not to change the lightbulb and leave the dangerous condition. You can make all sorts of arguments about whether things work out this way in real life, but there it is.

As usual with rules, there are all sorts of exceptions (only applies to proving liability, not to impeaching testimony, only applies to subsequent remedial action, doesn't apply to third party actions, etc.) The professor gave a hypothetical from the book. The hypo turned around whether Rule 407 applied for a strict liability action. The student confidently stated that it does not. The professor spent several minutes brow-beating the student. "You come to me with your fancy Columbia law degree and you give me a bullshit answer like that?!" etc.

Turns out, the student's answer was right... 6 months ago. Between when the book was published and today's class, Congress amended the Rules of Evidence to make Rule 407 apply to strict liability crimes. After embarrasing the student for a while, the professor lectured the class on the importance of always checking the latest version of the rules on-line before coming to class, because you can't trust the materials he assigned to be entirely up-to-date.

I could say this isn't fair, but that isn't a very interesting point. We're in the wrong universe for fair. It's just to comment that I've never seen a professor go so far out of his way to embarrass a student before; usually they can fulfill their need for schadenfreude in the normal course of interrogating students about cases.

Also, this particular session is terrible for my nerves. One of the on-call students is named Molten Boron. The professor keeps calling on him, which makes my head snap up and my stomach knot instantly even though I know it's not me. This is why I hate other people who have my name. Stupid other Molten Borons.

Today I had an interview with Herrick Feinstein, a law firm that, among other things, has the fact that it is right around the corner from a fantastic boardgame store to recommend it. After my interview I stopped by The Compleat Strategist to browse around. The most intrguing game I saw today was Goldbräu, a game that revolves around investing in German breweries during the Summerfest.

The game looked interesting, but I'm risk-averse enough not to buy a $40 board game without having some idea of how good it is. Alas, according to its Board Game Geek entry, it's generally considered a decent game, but not great. Its fatal flaw appears to be that it is a highly strategic game requiring a lot of math and cunning calculations. At the same time, the theme positively invites you to drink beer while playing. This means that, while the game may be perfectly fun whilst sober, as a practical matter it tends to be played while inebriated, which makes it quite frustrating.

I'm still curious about it though; this may be a good candidate for a game to buy with the club's money so that I can see whether I like it or not before I buy it.

On Friday night CSSS had its bi-weekly meeting, during which I had the opportunity to play Nexus Ops twice. It's a fairly light war game from Avalon Hill that plays with 2 to 4 players. Without having read the manual, it seems as though the game revolves around... rival space corporations vying for control of an asteroid using genetically engineered monsters? I think they were trying to convey a cheesy SF aesthetic, and if so they certainly succeeded.

The components are above-average. You get a set of cardboard hexagons that you randomly array to make the game board. These are organized around a central tile, the Monolith, which is on a cardboard stand about 5 inches high. The stand feels a little out of place and it only serves to obscure the pieces on the other side of it. There's an array of cards to represent special powers, secret missions, and victory points, as well as some cardboard chips to represent money. There are also four sets of units made out of flexible plastic. The units are the best thing in the box; they're made from very detailed molds, they come in a selection of garrish neon colors (green, blue, yellow, and pink) and they glow under a blacklight. They have a slightly odd smell to them, but they go a long way to giving the game a cheesy 80s science fiction cartoon feel.

The game's rules are fairly simple, but there's still enough going on to hold interest for the length of a game. Hexagonal tiles are randomly arrayed in two rings around the monolith, with each player adding to this a set of three home hexes at the periphery. After laying out the hexagons, goody tiles are randomly placed face-down on all of the hexes other than the monolith and the home bases. On a player's turn, she first spends money to buy new units, then moves her existing units, then turns over any goody tiles on newly explored hexes and collects whatever swag they give her, then resolves combat, then collects whatever income is coming to her from her mines and draws a Secret Mission Card. Play proceeds to the next player, and the game ends either when one player reaches a pre-determined number of victory points or when a player is eliminated.

Players build their forces from a selection of six units. Units vary in price, combat strength, and special abilities (some are more mobile, others get advantages in certain terrain, others can work the mines that earn you money to buy more units, etc.). Combat is resolved in a manner somewhat similar to Axis and Allies. All units have a to-hit number. If you role that number or higher, you score a hit and your opponent must remove a unit from the board. Interestingly, the combat ends once all units have roled. This means that battles often end with both forces still occupying a hex. In that case, both side's pieces remain and the hex is considered disputed, meaning that nobody can draw income from it this turn.

If you win a battle on your turn (that is, if you eliminate all of your opponent's pieces from a hex) you get a victory point. The loser gets an Energize Card, which is a special ability that can be played to give her more money, alter combat rules in her favor, and so on. It's a catch-up mechanic that serves to keep the game interesting if one player begins to dominate, as suddenly players who have been losing a lot of battles can start using the cards to cheat in their favor. Players also get energize cards by having undisputed control of the Monolith at the end of their turn, which gives everyone an incentive to fight over the central hex.

Players get Victory Points by winning battles and by fulfilling the conditions on Secret Mission Cards (for example, "control more fungal forests than any other player," or "start a combat with at least four humans on your side"). The first player to get 12 victory points wins.

The game takes between an hour and an hour and a half to play, and has enough going on to keep the players' interest for the duration. The rules are simple enough to pick up in a few minutes without much confusion. The game encourages players to fight early and often, which is good in a war game. I have played games, and here I am thinking of Twilight Imperium, that reward players who cocoon and horde for four hours. This can be fine in theory, but in practice it feels silly to have a variety of units and elaborate combat rules if the game's going to punish you for fighting.

You can tell this game was designed by Americans for an American audience, because it has three things you almost never see in European games: War, dice-rolling for resolution, and a science fiction theme. I don't mind the use of dice in this game, insofar as it makes the game more exciting and uncertain. Nonetheless, people who don't like dice-rolling will probably not enjoy this game, as the random factor ensures that the best player won't always win. Still, because the game is fairly short and relatively strategic, it doesn't turn into a long, boring slog like Risk does.

My one major criticism of the game is the random distribution of mines (through the goody tiles) at the start of the game. In our second game on Friday, one player managed to have only one single-point mine in his whole quadrant, putting him at a massive material disadvantage for the whole game. Granted, his lack of resources meant he wasn't a target and could sit back and horde money to raise an army, but when he suffered losses it took him much longer to recover, and it was hard to argue that he had any realistic chance of winning the game on his own. He had to save up for three turns to buy units that other players could get in a single turn. So a player could be playing with a handicap the whole game based on poor tile distribution at the start.

Complaints about randomness aside, I really enjoyed the game. It's involving, it's exactly the right length, and it offers an opportunity to play a dice-rolling war game without the tedium of Risk or the grognardian attention to detail of hard-core war games. Moreover, right now Toys R Us has it on sale for $20 (marked down from $50), with free shipping.

My rating: Two apples and a can of garbonzo beans.

Scrambled Tofu with Vegan Chorizo! Recipes from Vegan with a Vengeance

I was at the supermarket this evening in search of various things to make bean-and-tempeh sausage patties. Well, several supermarkets to be more accurate. One of the curious commercial adaptations to New York's pedestrian culture is that you get very few giant supermarkets like you get in the suburbs (and most other cities). It's simply not practical to travel several miles to a giant supermarket and haul home a dozen bags of groceries without a car. So instead, New York has lots of small supermarkets. I live between two, each no more than five minutes away. It makes it convenient to do quick hit-and-run grocery trips to do shopping, rather than buying a massive store of food, whittling that down, then stocking up again in one massive trip.

The downside is that, since the stores are a lot smaller, the selection tends to be limited. It's not unusual to find yourself wandering from store to store in search of someone that sells an uncommon food item. And if you've got even a moderate-sized list, there's a good chance you'll find yourself jackassing a load of groceries along with you as you gradually pick up the items you need.

Thus I found myself out in search of non-dairy bread crumbs, tempeh, white beans, and tamari. D'Agostino's proved a disappointment, as D'Agostino's tends to. Soy sauce, but no tamari. Tofu, but no tempeh. And the tofu they had was outrageously priced; $3.50 for a package of a notably low-quality brand. To give you a sense of the inflation there, a somewhat better quality tofu can be bought at a health food store a couple of blocks away for $1.79 per package. And while they had six kinds of bread crumbs, they all had whey in them. D'Agostino's is notably vegan-unfriendly; for any given product, if you can imagine some way to put dairy into it, D'Agostino's will stock only the brand that does so. They did, however, have dry white beans.

Morton Williams, on the other hand, has a better selection and is friendlier to vegans. Still no tempeh, but they had non-dairy bread crumbs and three brands of tamari. And they had something more, something I'd never seen before.

Doc Brown's Cel-Ray Celery-Flavored Soda. From the moment I saw the cans I resigned myself that I would be buying a six-pack. The same impulse that causes me to make things like hot-and-spicy oatmeal compels me to buy food products that cannot possibly be good (like Grapples, half apple, half grape!).

I should point out tha I'm not even really a big celery fan. It's alright, I don't dislike it, but it's always an ingredient that I have to go out and buy separately when a recipe calls for it because I don't make a practice of keeping it around. Still, celery flavored soda was too intriguing to pass up.

And the verdict?

Meh. I've had worse. It's a bland, ginger ale-like experience, only instead of tasting vaguely like ginger it tastes vaguely like celery seeds. This strikes me as one of those products that probably has a very small niche market, possibly an entirely New York-based market, and persists only through the loyalty of people who grew up on it.

Tonight for dinner I had an astoundingly delicious eggless fritata, with onions, asparagus, serrano peppers, and sun-dried tomatoes. I'd have taken a picture of it, but somebody ate it before I could get out the camera. Ahem.

That's all I've got.

I was feeling a little depressed this evening, but watching the University of California Golden Bears take apart the University of Minnesota Golden Gophers has jolted me back into neurochemical allignment. Stupid gophers! You're not match for an extinct species of bear!

The Law Firm of Payne & Fears.

School has started again, so that means more law posts. Wheee!

This hypothetical comes from Professional Responsibility. As such, it's a moral/ethical question, rather than a strict "what do you think the law is here?" question.

Assume that you are a lawyer. You represent a young man who was involved in a car accident. You've been retained by his insurance company to handle his defense. Your client is at fault; of that there is no doubt. You're not even trying to go to court with this case, since your client would pretty clearly be found liable. So now you're trying to get the best settlement possible for him.

The plaintiff has been examined by his doctor, who estimates that his injuries amount to about $5,000 worth of damages. As a standard precaution you hire a doctor of your own to examine the plaintiff and make sure this assesment is accurate. Your doctor finds the same injuries as the plaintiff's doctor. Your doctor also finds something else: an aortic aneurysm. This is incredibly rare in a man of the plaintiff's age, and your doctor determines to a near-certainty that the aneurysm was caused by the accident. Fixing the aneurysm will be incredibly expensive; it will require an expert cardiac surgeon and will raise his medical bills to about $500,000. If the aneurysm is discovered by the plaintiff it will, without doubt, raise the cost of settlement commensurately. If the aneurysm goes uncorrected, it is very likely that it will kill the plaintiff within a few months.

Under the rules of evidence, you own the medical report produced by your doctor. Your doctor has not disclosed the aneurysm to the plaintiff, nor would he be expected to. The plaintiff's lawyer is young and inexperienced; he has neglected to request a copy of your doctor's medical report. If he did so, you would have to give it to him. Since he has not, you are under no obligation to disclose your discovery to him.

Your jurisdiction's code of professional responsibility do not require you to disclose in this instance. They do require you to provide the most zealous defense of your client possible. In fact, they specifically provide that disclosing confidential information, particularly if it damages the client's case, would violate your duty to your client.

If you disclose your doctor's medical report to the opposing counsel, you will almost certainly face disciplinary action from your state bar association. Your professional reputation will take a huge hit, it is likely that you will be removed from your firm, and it is possible that you will be disbarred. If you do not disclose, you will get a much better settlement for your client, and the plaintiff will probably be dead in a few months.

What would you, as a lawyer, do?

Because I am a huge dork, I've taken photos of all of my books for this semester. And now you get to look at them!

First, my Professional Responsibility books:

Examples and Explanations: Professional Responsibility

The Law Governing Lawyers, 2006-2007 Edition

Evidence:

Problems, Cases and Materials: Evidence

Federal Rules of Evidence, with Selected Legislative History and Case Supplement

Corporations:

Commentaries and Cases on the Law of Business Organization

Commentaries and Cases on the Law of Business Organization: 2005-2006 Statutory Supplement

Global Issues in Corporate Law

Criminal Investigations:

Comprehensive Criminal Procedure

Comprehensive Criminal Procedure: 2006 Supplement

Anthropology and the Law:

Anthropology and the Law Reader, Volume 1

Anthropology and the Law Reader, Volume 2

I know what you're asking yourself now: This is all very interesting, you are saying to yourself, but how much do all of these books weigh when stacked atop one another? Anticipating your query, I have already found the answer to this question, and will now provide documentary evidence of said answer:

A hair over 20 pounds.

Quite possibly the tastiest sandwich it is possible to make is the simple tomato and butter sandwich, provided the tomato is fresh and flavorful, as one gets during peak season in summer. Simply toast two slices of bread, spread butter on one slice (Earth Balance works superbly as a substitute), sprinkle said slice with pepper, put a few drops of hot sauce on the other slice, put on a slab of tomato (I prefer an heirloom tomato like brandywine), sprinkle the tomato with a small amount of salt (be very light about it; when you're done, you shouldn't be able to see any salt, as it should all be absorbed by the tomato's juice) and merge the two bread slices into a sandwich-like configuration. Enjoy!

Ahem... What's the difference between sociology and anthropology? I'm starting to read through the first assignment for Anthropology and the Law. While it's very interesting, I guess I'm a little confused because I'm not quite clear on how to define the sphere of what are broadly Anthropological Questions, and where that sphere overlaps and does not overlap with what are Sociological Questions.

I'll confess now to having much more experience with sociology than anthropology. Unfortunately, since neither was my area of specialty in undergrad, my encounters with both were shallow and involved somewhat older scholarship. I'm led to understand that both fields have altered radically since they stopped being exclusively the province of Dead Old (Likely Racist/Imperialist) (Quite Probably German) White Men.

My general impression of sociology is that it sort of arose as a blending of political science, economics, psychology, and history, with the idea of using tools from the various disciplines to answer larger-scale questions of How Societies Work and Why People Act the Way They Do. When I think of sociology, I tend to think of Max Weber. I tend to think of the sociological project as looking at society as it exists now and trying to explain how it works, and to break down what factors cause different societies to act in different ways.

When I think of Anthropology, I tend to think of Margaret Meade and Alfred Kroeber. My impression is of people studying the societies and cultures of ostensibly primitive peoples, and either saying "This is how we used to be back before we got civilization," or "This is how folks interact in the State of Nature, which tells us important lessons about human nature that we can apply to our own lives/societies." I tend to think of anthropological questions as focused on specific cultures, and as being more concerned with how people interact in pre-modern societies.

And yet, and this is where my knowledge gets more fuzzy, I feel as though both disciplines have evolved in ways that make them more difficult to distinguish. I'm under the impression that Sociology has lost a lot of its hubris about seeking to create formulae for how societies operate, and has retreated to a more descriptive goal of "let's look at societies as they are now and talk about what's going on in them." Anthropology, meanwhile, seems to have gotten embarrased of the way that it tended to de-humanize less developed societies and turn them into circus sideshows. The anthropological project, from what I can tell, has expanded to include all manner of contemporary societies. Further, my feeling is that anthropology, too, has stopped trying to make arguments about Human Nature and instead focuses on descriptive studies.

So, looking at the state of the fields right now, how would you differentiate the two? Is it a matter of focus? Sociologists are concerned with societies at large, while anthropologists are concerned with the smaller component groups? Is it a question of ideology? Anthropologists principally wish to describe cultures without attempting to distill their behavior into universal rules, while sociologists are still looking to arrive at big ideas about how societies work? Or is there very little practical difference between the two disciplines as they stand today, and the fact that they're organized in separate departments is a relic of their having arrived at the same place from different origins?

Feel free to correct my gross (and likely inaccurate) generalizations. Also, I now realize that I should have clarified that I'm talking about cultural-type anthropology, rather than the more biological anthropology. Which, again, shows how little I know about the field.

Dianna's post on credit worries inspired some thoughts of my own about my current courseload quandary. As you will recall, I'm signed up for 15 points right now. At Columbia Law, 12 points is the minimum you can take in a semester and 15 is the maximum. To graduate, I need 53 points. Generally, students do this by taking three 13-point semesters and one 14-point semester.

Right now, I'm signed up for Criminal Investigations (3 points), Anthropology and the Law (2 points), Corporations (4 points), Evidence (3 points), and Professional Responsibility (3 points). I should theoretically be shooting for 13 or 14 points, the standard courseload. I can't drop Corporations or Evidence; they're both major foundational courses that I'll need to take more interesting, job-related courses later on. I really don't want to drop Criminal Investigations, because it's taught by a professor whom I've heard is great and who will almost certainly be leaving the school after this semester. Moreover, it's a course that looks fun and it's a recommended prerequisite for a lot of other criminal law-related courses, which I'm interested in despite their irrelevance to my short-term career goals.

This leaves Anthropology and the Law and Professional Responsibility. Anthropology would fit my needs best, point-wise, since dropping it would put me in the 13-point comfort zone. And yet flipping through the reader makes me really not want to drop it. The material looks like genuinely engaging, and it'll be nice to do some reading produced outside of the world of legal scholarship. So: Professional Responsibility. Nobody likes it, and Columbia lets us get out of the requirement easily by taking an accelerated one-week course at the end of summer, which I could theoretically sign up for next year.

And yet... For one, it doesn't fit the points neatly. Dropping it would mean either adding another course or taking a light 12-point load. 12 points now would mean either two 14-point semesters or one 15-point semester. Adding another course would be tricky; I'm on a bunch of wait lists, but their all either for 3-credit lectures or for seminars I have no hope of getting into. The list of open courses is no help; everything that's available is for too many credits, requires prerequisites I don't have, or is on a subject I have no interest in. And taking PR now would get it out of the way... Plus, to be honest, Professional Responsibility sort of intrigues me. If nothing else, ethical questions about the hypothetical situations a lawyer could find herself in would make more interesting blog-fodder than such subjects as the Minority and Majority Rules for Piercing the Corporate Veil or the Hearsay Exception. And I've heard it isn't particularly hard. There's no casebook, instead we'll be working with an Examples and Explanations volume (E&E being a series of "hornbooks," books for law students that provide a clear explanation of the material in various standard courses. Most students buy some sort of hornbook to help them with classes that they have difficulty with, but they're generally used as an outside-of-class supplement, not as an actual textbook).

This leads me to consider staying where I am and taking 15 points. I've actually had good luck in the past with taking more credits than a sane person would. At Berkeley, I had one 14-credit semester (my first at school), two 20-credit semesters, and five 16-credit semesters (the average is ostensibly 15 credits, but 3-credit classes are relatively hard to come by, so most students either take 16 credits or 12 credits plus a 1-credit student-taught class). My best semesters, my only straight-A semesters, were my 20-credit ones. I found myself much better able to manage my time to do all my work, get the necessary studying in, go to all my classes, and put in 15 hours a week at the library. Somehow I could never get things together nearly as well when I was less busy. My theory is that increasing the amount of stuff I had to do greatly increased the marginal utility of organizing my life. In general I dislike organizing my time, so it doesn't get done unless the demands on my reach a crisis level. When I took 20 credits, life was a constant crisis that demanded a carefully-planned structure.

So I seem to get things together and do my best work when I'm under a lot of pressure. Of course, while those were my most successful terms, academically, they were not much fun to actually live through. Still, if I'm to be an attorney I should get used to budgeting my time to accomodate long hours of work. And I like learning things. Maybe this will be fun!