Year in Review, Take Five

November 22, 2014 Leave a comment

One yearTwoThreeFourFive years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten.

My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With nearly 3,500over 9,700nearly 141719,000 views in the first yeartwothreefourfive years, I still think we’re off to a good start.

Thank you for your readership and feedback.

Categories: Music, Uncategorized

Book Review: Infinite Jest

October 31, 2014 Leave a comment

IMG-20141029-00182.jpgIf there is one point of agreement among all reviewers of David Foster Wallace’s preeminent novel, Infinite Jest, it is that the book is long. Indeed, the book is over one thousand pages in length, inclusive of nearly four hundred endnotes, some of which run multiple pages, and some of which themselves have endnotes.

For such a lengthy work, it is at least somewhat surprising that what would appear from the title and a not-insignificant portion of the plot development to be the central conceit of the book is revealed within the first hundred pages to be a technologically updated Monty Python sketch.

Fiction not being my recent specialty, and a below-the-surface understanding of Infinite Jest being beyond the grasp of my present faculties, I have only a few observations to offer.

The first thing I noticed about this book is that, unlike most fiction writers, who tend to provide only those background, environmental, atmospherical, and ancillary details necessary to explain, understand, contextualize, and advance the plot, Wallace presents an extreme depth of detail at times seemingly irrespective of whether it contributes to the advancement of a plot line or the development of a character. While I suspect the number of people who have both read this book and taken a bar examination is small, those individuals will be able to appreciate the analogy I could not avoid between this aspect of the book and the Multistate Performance Test (“MPT”), which now is a component of the bar exam in a majority of United States jurisdictions. MPT examinees are asked to write concise answers to legal questions and are provided a “library” of legal authority and wide-ranging factual information upon which to draw in formulating their answers. There is a clear line to cut through this voluminous information, which varies widely in its relevance to the precise question presented, to reach an answer. Most novelists seem to make like the successful MPT examinee, who discards information at best remotely relevant and addresses the question (or advances the plot) with pinpoint accuracy. Wallace, on the other hand, would work every piece of information provided, apparently relevant or not, into his answer, and then supplement it with even more details.

Second, I cannot remember being more actively conscious that I was reading a literary work, as such, than I was with this novel. The story frequently is absorbing, and the vast world offered is deep and inviting. Still, I periodically found myself considering, as a primary matter, the purpose and efficacy of various aspects of the content and its organization as literary tools, building blocks of a novel. That inartfully described experience may have arisen as a result of my preexisting awareness of the book’s general reputation as a masterwork, but Infinite Jest seemed to me different enough from other works of fiction I have read to make me pay attention both to the characters and stories in the usual absorptive way and to the book itself as a literary work or vehicle for the delivery of a concept of some sort or sorts. Towards the end, Wallace suggests a disagreement between two central characters, brothers and sons of a filmmaker, over their father’s preference for using nonprofessional actors in his films. The idea was that “the stilted, wooden quality of nonprofessionals helped to strip away the pernicious illusion of realism and to remind the audience that they were in reality watching actors acting and not people behaving. . . . [T]he real truth was that [the father] hadn’t wanted skilled or believable acting to get in the way of the abstract ideas and technical innovations in the [films].” David Foster Wallace, Infinite Jest 944 (Back Bay Books, Nov. 2006) (1996). I wonder whether Wallace felt the same way; in other words, that the purpose of Infinite Jest was to demonstrate the qualities of the novel as art form and Wallace’s abilities as a novel artist. On some level, of course, all novelists see themselves as creating art. Here, though, there seems to be something more deliberate and more total, novel-craft as art versus storytelling as art.

Third, one of Wallace’s most effective techniques is his use of timing, often to delay revealing information, either in the context of a single scene or over the course of the entire book, until it can be introduced with maximum effect. While this approach makes much of the book feel as though it is unfolding slowly and magnanimously, Wallace also demonstrates the ability to rapidly create rising action. Both applications of his use of timing leave the reader equally emotionally drained.

Infinite Jest is about tennis, television, drugs, dependencies, politics, and poltergeists. First published in 1996, it is a prediction of, and therefore a commentary upon, today’s world. Beyond that, I am not very certain of what I just read. It may simply be about the search for meaning, which, for me, continues.

Categories: Books

The Value of Anonymity

September 30, 2014 Leave a comment

Two of the results of the widespread availability of the virtual printing press that is the internet are an increase in published criticism and, in reaction to that increase in criticism, an increased demand for people to publish their material, and particularly their critical material, under their own names. Part of this second result is borne out of a demand for authenticity: we want to know that the things we see and read online are real. Another comes from a voiced desire of the criticized to know their critics. The foundational concept is a belief that people are unlikely to publish false, baseless, or mean-spirited commentary under their own name, because they likely would suffer adverse consequences. In essence, anonymity is harmful to public discourse because it allows people to participate in public discourse without consequences.

Anonymity is not all bad, however. As evidenced by the success of increasingly openly partisan cable news networks, people prefer to receive information and discuss issues with others they already know they agree with. It seems likely that people decide what they think about an article, or even whether they are going to read it at all, simply by referencing source identification material. Republicans disregard MSNBC and the New York Times, to which Democrats flock while disregarding Fox News and the Wall Street Journal, to which Republicans flock. The point is not that these are necessarily insightful, intelligent, or worthwhile information sources, but that context matters in deciding how– or whether– people approach offered ideas, content, information, or potential conversations.

Anonymity can make discourse more robust because it necessarily emphasizes content over source-information context. Readers and listeners must engage with the idea or ideas presented because there is nothing else. Without preconceived expectations, people are more likely to consider an opinion they otherwise would ignore or find a new way of understanding an idea with which they already generally agreed, all of which can lead to more meaningful exchanges of ideas and reassessments of one’s own views.

Scurrd Ferguson

August 31, 2014 1 comment



  • What is the status of the rule of law, as applied, in America?
  • What is the proper role of the media in a developing event?
  • How useful is metajournalism, embedded in or in parallel with the journalistic reporting of a story?
  • Should the government treat journalists differently than other citizens?
  • Who decides whether someone is a journalist?
  • What are a journalist’s obligations, and to whom is a journalist obligated?
  • Is Twitter (et al.) an illuminating or distorting tool?
  • Of what are the ongoing events in Ferguson, Missouri representative?
  • How useful is it to frame the Ferguson conflict in the context of post-9/11/11 Homeland Security grants and The War On Drugs, at least as concerns the militarization of ostensibly civilian police units?
  • Is there a point at which an authority’s responsive reactions are so disproportionately incongruous and internally and externally illogical as to surpass the point of illustrative usefulness for conveying current understanding and future change?
  • Is there a point at which a right to “loot” arises?
  • Is non-instigative looting an important focal point in understanding the dynamics of a broader event?
  • Are police properly charged with the task of the protection of private property, and, if so, how should they prioritize conflicting private and public rights?
  • Where is Darren Wilson?
  • For whom is the criminal justice system?
  • What would it mean to resolve the current conflict in Ferguson, Missouri?


Right to revise and extend the foregoing reserved.

Categories: Current

Selective Executive

July 1, 2014 Leave a comment

Last year, I noted that President Barack Obama seemed to be selectively leveraging his executive muscle in favor of certain constituencies and not doing so to benefit others. Following the passage and effective date of the Affordable Healthcare Act (“ACA”), the President acted, probably in illegal fashion, to help the business community by delaying application of the new law’s burdens on employers. (As Jon Stewart noted at the time, the administration did not afford other constituencies, like young people, the same benefit.) What the President was willing to do– circumvent Congress to achieve a desired policy outcome– last July for businesses under the ACA he was not willing to do for immigrant families being split up under deportation laws last November, suddenly bemoaning that Congress was standing in his way (“When it comes to immigration reform, we have to have the confidence to believe we can get this done, and we should get it done. The only thing standing in our way right now is the unwillingness of certain Republicans in Congress to catch up with the rest of the country.”).

This seesaw pattern has continued in 2014, and others are catching on. Earlier this month, Glenn Greenwald noticed another executive power incongruity emanating from the White House, this time in the foreign policy context. Like his selective enforcement of the ACA, the President likely illegally circumvented Congress and released five Guantanamo Bay prisoners in exchange for the return of an American prisoner. The exchange provided a public reminder of many things, one of the most basic of which was that the U.S. prison at Guantanamo Bay remains open and operative, contrary to the President’s longstanding promise to close it. As Greenwald points out, “the sole excuse now offered . . . for this failure [to close Guantanamo] has been that Congress prevented [the President] from closing the camp.” He concludes: “either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?”

If the President’s actions do not contradict his words, they at least illuminate his priorities. The President may truly desire all of the policy outcomes he professes to seek. By leveraging his executive might in pursuit of some of those outcomes and not others, though, he reveals which goals really matter to him. The above examples show that, for President Obama, helping businesses and securing the return of an American POW were high-priority goals, while helping immigrant families and closing the Guantanamo Bay prison are lesser priorities.

If there is a lesson here, it is not a new one: when evaluating a politician’s performance, we cannot merely rely on her own words. It is appropriate to measure a politician’s record against the rubric she makes for herself through campaign promises and other goal-setting pronouncements. In conducting that measuring, however, we must look to the politician’s actions, and we must look at them in context, not in isolation. When an elected leader shows that he is willing to exceed the legal confines of his office in order to achieve a goal, we should accord little weight to his complaint that the same legal obstacle, elsewhere ignored, precludes his achievement of another ostensibly desired goal. We may not reasonably be able to expect forthright honesty in our leaders’ self-critical evaluations, but we ought to demand that degree of thoroughness of our own critical evaluations of our leaders.

Categories: Action, Current, Legal, Politics

The Internet’s Thin Veil

June 29, 2014 Leave a comment

Setting aside the net neutrality policy debate, the internet’s level publishing platform does not seem to have allowed for a multitude of dislocated voices so much as a partial reorganization of collective publishing entities in a way that is not so different from the newspapers and magazines that controlled periodical publication during the wholly print era. For those writers coming of age today, the internet’s vastness actually may make it even more difficult to catch the eye of those in control of the most well-attended publishing outlets.

What may be different today, though, is the relative ease with which readers may examine an individual’s writings, musings, exercises, and even drafts posted online before the individual accepted an invitation to join a popular publishing platform. Sometimes, as in the case of Clay Travis, who posted multiple unfavorable comments of Fox Sports not long before accepting an offer to join the network, it is quite easy to find this content. Other times, a small mistake can unlock a trove of old material.    Read more…

The Full Legacy of Public Policy Decisions

May 31, 2014 2 comments

The United States Department of Veterans Affairs is in the news these days, and not inappropriately. Tales of bureaucratic inefficiencies are legion, of course, and maddening as it is that this particular tale directly and significantly affects the lives of those arguably least deserving of abuse at the cumbersome hand of the federal government, it cannot be surprising that bureaucratic inefficiency adversely affects people in meaningful ways. This is not an unacknowledged problem.

Probably coincidentally, this recent spotlight on the VA’s lethal shortcomings has illuminated another, less recognized and thankfully less lethal, feature of our public policy apparatus: governmental policy decisions can give birth to longer, sometimes much longer, legacies than likely were ordinarily contemplated at the time the decision was made. The VA, of course, is not immune to this effect, as evidenced by the fact that there is a Wilkesboro, North Carolina woman receiving a monthly payment from the VA in ongoing satisfaction of a pension for her father’s military service in the Civil War. The story of Irene Triplett and her father, Mose Triplett, is a somewhat interesting one from a historical perspective, as is to be expected of such stories.

The Triplett family’s story also serves as a reminder that public policy decisions can be fraught with costs– broadly defined– that extend, in some respects unpredictably, long beyond their commonly anticipated scope. This is as true in war as it is in any other public undertaking. In 1974, there were nearly 28,000 families receiving veterans’ benefits as a result of service in Spanish-American War, fought for three and a half months in 1898. Last year, the VA paid $2.2 billion to nearly 219,000 families for service in World War II, which ended in 1945. (Click the image and scroll to the bottom of the page for interactive functionality.)


Rarely, one must believe, do policy makers or citizens contemplate at the time the country enters into a military conflict that the financial costs of the decision to go to war might extend over 150 years beyond the conclusion of that war. And while the discussion thus far has emphasized the long life of the financial commitment of an engagement in armed conflict, we are only beginning to recognize the scope of the legacy of the real medical and social costs of armed conflict that the tallying of VA benefits is unlikely to capture in full.

This phenomenon is not limited to the military context, of course. Many laws have “sunset” provisions that purport to set an expiration date, which legislatures subsequently may extend, for the legislation. Judicially enunciated policies can operate similarly. The Supreme Court justices themselves are an example. President Gerald Ford appointed John Paul Stevens as an associate justice in 1975. (President Richard Nixon appointed Stevens to the Seventh Circuit Court of Appeals in 1970.) Justice Stevens served on the Supreme Court until 2010, four years after Ford died. Ford thus continued to influence public policy from the grave. Indeed, Stevens, who is still alive, continues to influence public policy through speeches and other appearances to this day.

Humans are not great at contemplating the long-term consequences of their actions. This cognitive deficiency extends, with consequences, to their enactment of public policies. Rather than punt difficult decisions to future generations, the better approach may be to limit such policies to short-term effectiveness with opportunities to reconsider them down the road.

Categories: Current, Legal, Politics

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