February 2012

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Jamison Koehler has a post up on his blog offering tips for new bloggers. Although he wrote it specifically for legal bloggers, and some of the examples might not make sense if you don’t know the personalities, it’s good advice for anyone considering a new blog. If you’re thinking you might like to join the conversation, you should check it out.

Naturally, I have a few thoughts on the subject…

Sometimes I write for other bloggers. At the beginning especially, I was intrigued by the back-and-forth among other bloggers I read and sought to participate in the discussion. The problem with this, I have found, is that these entries don’t hold up very well over time.  I’ll look back at a blog entry I did one or two years ago and wonder what we were ever talking about.  Reading such a blog entry can be like listening in on one side of a telephone conversation.

I say you shouldn’t worry about how well your posts will hold up over time. Just because a topic is short-lived doesn’t mean it isn’t worth your time to think about and write about. However, if you want readers from the distant future to understand what you’re saying, make sure to link to other parts of the conversation and quote relevant parts, in case the linked pages go away. It may help to recap a bit. I usually try to do all this in one obvious paragraph, so people already familiar with the context can skip it.

Regarding tip #3, “Find Your Voice,” if your writing skills do not extend to consciously creating a style for yourself (as mine do not), or if you’re just not sure what your style should be, the best way to find a style is to just keep writing. Eventually, you will adopt certain habits — certain turns of phrase, certain narrative structures — and your style will emerge.

There’s also some important tension between rule #5, “Do Your Own Thing,” and rule #8, “Lurk Before Joining the Conversation,” because of the implication that you are lurking so you learn the rules. It’s important to keep in mind that while it’s helpful to know the rules, you don’t have to obey them.

Also, once you start blogging, for God’s sake, make sure you really do join the conversation. Link to other bloggers, and talk about the things they talk about. It’s really the heart of what makes the blogosphere different from other media.

I’ve always been wary of Godwin’s Law — the internet maxim which says that if you are in an argument and you compare someone or something to Hitler or the Nazis, you automatically lose the argument. (Actually, Mike Godwin’s original comment was more nuanced than Godwin’s Law has become today. Wikipedia has a nice summary.)

Granted, there’s way too much of that going around. Not everyone we dislike is a Nazi, and no matter what a lot of silly protesters said, George W. Bush didn’t turn into Hitler and Barack Obama won’t either. We invoke Godwin’s Law as a reminder that such comparisons are often ridiculous, and also as a reminder that an analogy can become a replacement for careful thought.

On the other hand, Godwin’s Law can also become a replacement for careful thought, if we allow it to shutdown the debate.

Part of the reason we have Godwin’s Law is also part of the problem with it: When we think about Hitler and the Nazis, we naturally think of their greatest crimes, and compared to the Holocaust, all our current problems seem small, which is why a comparison is so often foolish. Nothing happening in the United States today comes close the ultimate horrors of Nazi Germany.

However, it’s important to remember that Adolf Hitler didn’t murder 12 million people on his first day, and those ultimate horrors were preceded by many lesser horrors. Hitler was active in German politics for over a decade before becoming Chancellor, and it would be another nine years before the Wannsee conference and the Final Solution. So while it’s correct to say that nobody in America today is as bad as Hitler, it’s also correct to point out that for the first fifty years of his life, neither was Hitler.

Yet it’s not as if Hitler was a nice guy for most of his time in office. It’s not as if Germany was a great place for Jews (or Gypsies or homosexuals or any of the other victims) right up until the moment the death camps began operating. There were clues to what was coming, and those clues are worth thinking about today. It’s not enough to remember history; we also have to recognize the evils of history when we see them again, if we don’t want to be doomed to repeat them.

As Kevin Carson says in his own denounciation of Godwin’s Law:

Godwin’s Law, by treating Nazi Germany as some sort of unique, metaphysical evil in human history, essentially nullifies its practical lessons for people in other times and places. Although Nazi precedents are now used as symbols of ultimate evil — just look at Darth Vader — they didn’t seem anywhere so dramatic to the German people at the time they were happening.

Nazi repression came about incrementally, in the background, as people lived their ordinary daily lives. Each new upward ratcheting of the security state was justified as something not all that novel or unprecedented, just a common sense measure undertaken from practical concerns for “security.”

After all, the bulk of Hitler’s emergency powers were granted by the Reichstag after a terrorist attack (blamed at the time on communists), a fire which destroyed the seat of Germany’s parliament. Any parallels to 9/11 and USA PATRIOT are, of course, purely accidental. Each new security clampdown, after an initial flurry of discussion, was quickly accepted as normal because it didn’t affect the daily lives of most ordinary people. And of course, those ordinary people had nothing to fear, because they’d done nothing wrong!

The Nazis weren’t the last totalitarian bastards the world will ever see, and when the next Adolf Hitler begins his rise to power, it will be a lot harder to stop him if we’re not allowed to point out that he’s acting just like the last Adolf Hitler.

Jennifer Abel gives an example of how this works:

I’ve been banging the anti-TSA pro-civil liberties drum on this blog since 2006, the same year I started it. And America’s gotten worse, incrementally, as people lead their ordinary lives. It led directly to the passage and acceptance of the NDAA, with its unconstitutional insistence that the government can arrest any citizen at any time with no evidence, no trial, no legal rights at all, provided the government first says “Trust me, he’s totally a terrorist.” It’s led to what Carson calls a “de facto internal passport” required for travel within the borders of our own country. And when those who support these laws watch documentaries on the rise of the Third Reich, they shake their heads in patriotic superiority and swear “It can’t happen here.”

But of course it could happen here. America is still basically a free country, but there’s no natural law that says it has to stay that way. There are certainly things going on in this country that look a lot like the early days of the Nazi rise to power. The TSA’s metastasis into a system of internal checkpoints (the hallmark of totalitarians everywhere) is one good example. Another example, is the War on Drugs, which strikes me as a slow-motion Kristallnacht, with drug users and the inner-city poor in place of the Jews. 

I can’t point to any major American politician and say he’s the next Hitler, but I can think of a at least one minor figure who certainly fits the uniform: Maricopa County Sheriff Joe Arpaio. He fought the DEA’s war on drugs for 25 years, he brags about the cruelty of his prisons (in which inmates regularly die), he uses the investigative powers of his office to intimidate people who criticize him — including journalists and other members the justice system — and he has even tried to imprison judges who ruled against him or his officers. And to top it off, much of his political power comes from exploiting racial and ethnic hatred against illegal immigrants.

So in the spirit of civil disobedience against Godwin’s Law, I’ll say it out loud: Sheriff Joe Arpaio is like Hitler. Not like the Hitler who killed millions in the death camps, of course, but like Hitler from twenty years before, filled with hate and lusting for power. But not as successful. And unlike the real Hitler, we don’t need a time machine to stop him. We can do it by voting him out of office.

That said, identifying “the next Hitler” isn’t really the important point. Hitler wasn’t evil because he was Hitler. Hitler was evil because he did evil things. Similarly, our goal need not be to stop the next Hitler. Our goal should be to recognize when people in our government are doing evil things, and spread the word so they can be stopped. If that means saying that they’re behaving like Nazis, so be it.

If you’ve ever tried to use Google to find a lawyer for a DUI or traffic offense, you’ve probably stumbled across one of those relentlessly SEO optimized sites that isn’t actually a law firm but promises to put you in touch with a lawyer. Basically, they’re referral services.

This always seemed annoying but harmless to me. To Spokane, Washington criminal defense attorney Steve Graham, however, it seemed like something worth a bit of investigation:

I googled the phrase “Spokane dui lawyer” and came across the site www.1800duilaws.com, and typed in some very sensitive information about my “case”. I conducted the experiment from a coffee shop in north Spokane. About 5 minutes after I entered the details of my “Spokane DUI case”, the comment I had entered into the site 1800duilaws.com came back to me in the form of a spam email to my law firm email account.

The contact form on these websites usually includes something along the lines of “you are not forming an attorney-client relationship,” which sounds like they’re just warning you that no one has promised to be your lawyer yet. What they don’t say explicitly, however, is that this means that what you are writing is not a privileged communication. The people who receive them are not acting as your lawyer, and they have no legal obligation to keep your secrets.

I was aware of this, but as Graham explains, it’s much worse than I thought:

The lawyers who receive this information aren’t even necessarily DUI lawyers…Many of the lawyers could be friends, neighbors, or relatives of the DUI suspect, and the lawyers are under no obligation to keep the information confidential. In Washington state, it is not uncommon for a lawyer to defend DUI cases in the county district courts, but to work as a part-time prosecutor in the local city or municipal courts…It is possible that a DUI suspect could have his or her DUI case information sent directly to the city prosecutor’s email inbox.

Geez. I did not see that one coming.

Steve Graham’s post has a lot more information, including one site that masquerades as a law firm with offices in thousands of U.S. cities.

Read the whole thing.

My Nobody’s Business co-blogger Rogier has a pretty good article up about divine delusions v.s. observable reality. It’s a plea for rationality, even if faith and mysticism seem like more fun. As is often my way, I have a small quibble.

Rogier and his opponent are discussing a Facebook poster’s insistence that a bit of lens flare in a photo of a pyramid is actually a sign that the “goddess era has arrived.” Rogier’s opponent is arguing that her subjective interpretation has meaning.

So here’s perhaps how she making the connection between her beliefs and aspirations and this photo. This photo for her is a symbol of her convictions: To bring the masculine energy (which she perceives is out of whack) into balance with the feminine energy.

He goes on to conclude:

So this image is a visual confirmation and symbol of her beliefs, and makes perfect sense.

Rogier had a problem with that:

I don’t see how he arrived there. At all. Unless he means that it makes perfect sense for some poor guy in an asylum to believe that he is Napoleon Bonaparte, or for the cat lady down the street to worship her scraggly charges as multiple reincarnations of Nefertiti. Yes, it makes sense to those two people, I’m sure. But almost everyone else easily recognizes the outsized fallacies involved.

There is no equivalence between the unprovable views of Cat Lady and Fake Bonaparte on the one hand, and the provable ones of Richard Feynman, Neil DeGrasse Tyson, and all the rest of science on the other.

This is where I feel the need to add a small clarification. I think “provable” is the wrong word. The key difference between the theories of scientists and the pronouncements of mystics is not that they can be proven, but rather that they can be disproven. In the terminology of Karl Popper, the theories of scientists are falsifiable.

What distinguishes a scientific theory from other kinds of ideas — personal beliefs, religious faith — is that scientific theories allow you to make predictions about the world that can be tested and that might be found false. (Note that I’m not saying that a theory has to be disproven to be scientific — that would make it a false theory — only that it has to be conceivable that it could be disproven.) Conversely, if there’s no way that an idea can be disproven, then it’s not really a scientific theory. If the theory can’t be tested against the real world, that means it doesn’t say anything useful about the real world.

Rogier’s opponent implicitly agrees that the goddess theory is not falsifiable:

For her [the Facebook poster] it’s a sign that the goddess era or whatever has arrived. Who’s going to prove she’s wrong?

If no one could ever prove her wrong, then she’s not saying anything interesting about the world.

I know that everybody stuck here in the wake of the mortgage securities crisis hates bankers, but it still seems like there’s something wrong about this:

The news for Wegelin, its headquarters nestled in the town of St. Gallen next to the Appenzell Alps near the German-Austrian borders, would only get worse. Six days later the U.S. Justice Department, acting on plans it had been making for weeks, indicted the 270-year-old bank on charges of enabling wealthy Americans to evade taxes on at least $1.2 billion from 2002 through last year. U.S. criminal laws apply to foreign banks that do business in the United States, even if the banks, like Wegelin, have no U.S. branches.

So the United States is prosecuting Swiss banking executives for helping Americans evade income taxes, even though the bank’s activities did not violate Swiss law. Apparently we’ve made it illegal for anyone anywhere in the world to violate our tax laws, even if they never enter the United States to do so, and even if doing so isn’t a crime where they are.

[Wegelen’s leading partner Konrad] Hummler’s error, rival Swiss bankers say, was in thinking Wegelin was safe from a U.S. indictment just because the bank didn’t run any U.S.-based branches.

This is a terrible precedent (although it’s hardly the first time). What if other countries started regularly doing that to us? Would we want Americans to be prosecuted for apostasy in Iranian courts for evangelizing and converting Muslims to Christianity in Alabama? Would we want American web site operators prosecuted for helping France-based bloggers violate European hate speech laws?

Martin Naville, chief executive of the Swiss-American Chamber of Commerce in Zurich, told Reuters that Hummler had “exposed himself pretty heavily” around 2009 by publicly calling America the “worst aggressor since the Second World War” while taking in tax-evading clients fleeing other Swiss banks in the wake of the crackdown. “Clearly, he made some people very angry,” Naville said. “And usually, the boomerang comes back.”

What Hummler said is over the top, but it’s not a crime. I would like to think that federal prosecutors have better ways to prioritize their time than prosecuting people who piss them off.

I’m taking my employer’s mandatory security training course, and I just ran across this paragraph:

The World Wide Web is a powerful tool for such tasks as research, communication, marketing and more. It provides access to more information than we could read in our lifetimes. Unfortunately, it has also become inundated with sites that are completely inappropriate for our work environment.

True, but that’s not an unfortunate thing about the Web. It’s an unfortunate thing about being at work.

A few months ago, after reading posts about the concept of reasonable doubt in our legal system by Scott Greenfield and Rick Horowitz, I decided to tackle the subject myself. Despite my facetious claim of a breakthrough, I didn’t really reach any great conclusions, but that didn’t keep me from rambling on for a while. (And it’s not going to stop me this time, either.)

As with many of my more thoughtful posts, it received almost no comments. At least until a few days ago when a grad student named Sam emailed to ask for a little more information about where I got my ideas. He wisely starts with flattery:

Hi Mark,

I am writing my thesis about moral certainty/reasonable doubt in the moral context of the ascertaining of death. I came across an article in your blog, which I found rather interesting…

Sam then goes on to discuss the idea a bit, with references to James Q Whitman, James Franklin’s The Science of Conjecture, Pius XII, and John Paul II. Then he asks me for a bit of information.

Is there any book on the history of moral certainty/reasonable doubt that you can recommend me? I would be interested in non-historical books as well.

Thank you for taking time to read this e-mail. I would greatly appreciate if you could answer me.

Yours truly,

Sam

I don’t know of any books about the history of moral certainty per se, but I can think of a few books that directly or indirectly influenced the way I discussed the subject in the previous post. I started to explain this in a brief reply, but I soon realized I had enough material for a blog post, and I thought someone else out there might be interested.

Although I’m not a scientist, I have great admiration for the discipline of scientists, and much of my thinking about issues of certainty and doubt is based on what I’ve read about the philosophy of science, which is somewhat related to the philosophy of pragmatism. On that subject, the most obvious book to read is William James’s Pragmatism, but I’ve found that C. S. Pierce explains the philosophical issues more clearly.

One of the key points of pragmatism is that when trying to answer a question, it matters a great deal why you’re asking. Here’s an excerpt from one of James’s lectures that is illustrative of both the pragmatic approach and James’s writing style:

Some years ago, being with a camping party in the mountains, I returned from a solitary ramble to find every one engaged in a ferocious metaphysical dispute. The corpus of the dispute was a squirrel — a live squirrel supposed to be clinging to one side of a tree-trunk; while over against the tree’s opposite side a human being was imagined to stand. This human witness tries to get sight of the squirrel by moving rapidly round the tree, but no matter how fast he goes, the squirrel moves as fast in the opposite direction, and always keeps the tree between himself and the man, so that never a glimpse of him is caught. The resultant metaphysical problem now is this: Does the man go round the squirrel or not? He goes round the tree, sure enough, and the squirrel is on the tree; but does he go round the squirrel? In the unlimited leisure of the wilderness, discussion had been worn threadbare. Every one had taken sides, and was obstinate; and the numbers on both sides were even. Each side, when I appeared therefore appealed to me to make it a majority. Mindful of the scholastic adage that whenever you meet a contradiction you must make a distinction, I immediately sought and found one, as follows: “Which party is right,” I said, “depends on what you practically mean by ‘going round’ the squirrel. If you mean passing from the north of him to the east, then to the south, then to the west, and then to the north of him again, obviously the man does go round him, for he occupies these successive positions. But if on the contrary you mean being first in front of him, then on the right of him, then behind him, then on his left, and finally in front again, it is quite as obvious that the man fails to go round him, for by the compensating movements the squirrel makes, he keeps his belly turned towards the man all the time, and his back turned away. Make the distinction, and there is no occasion for any farther dispute. You are both right and both wrong according as you conceive the verb ‘to go round’ in one practical fashion or the other.”

The relevant point is that in order to think about how to define reasonable doubt, we have to keep in mind how we’re going to use the answer. The definition is inseparable from its use.

If you want a more rigorous approach to thinking about certainty and doubt, you might want to learn about the way scientists use probability and statistics to quantify the degree to which they can be certain that a theory is true based on limited evidence.

In science, the evidence is limited because scientific theories are statements about universal truths. For example, suppose your theory is that a flipped Euro coin is more likely to land heads than tails, perhaps because of aerodynamics or weight distribution. You can’t possibly do an exhaustive test: Not only are there billions of Euro coins in the world, but each coin can be flipped essentially an infinite number of times.

The only way to test a theory like that is to look at a small sample of all the possibilities. Conduct an experiment by flipping a few coins, tabulate the results, and then use probability and statistics to answer this question: What are the chances that I would get these experimental results even if my theory is wrong?

For example, if you flipped 10 coins and got six heads, that’s very poor proof: A little math with the binomial probability distribution tells us that there’s a nearly 38% chance of getting at least 6 heads in ten flips. In other words, if the Euro coin is totally fair — 50/50 — there’s still a 38% chance of getting 6 or more heads in ten flips. With odds like that, it’s hard to distinguish whether our theory is correct or not.

Our certainty is increased, however, if our result is stronger or if there are more tests. So if we get 7, 8, or 9 heads, the likelihood if it happening even if our theory is wrong is 17%, 5%, or 1%, respectively, indicating we can be more confident that the theory is true. Alternatively, we can also be more confident if we increase our sample size. The probability of getting 60 heads in 100 flips even if our theory is wrong is just under 3%. That’s good enough for publication in some fields.

In a criminal case, the jury is evaluating the prosecution’s theory that the defendant is guilty. Although the jury is not deciding a universal truth, the evidence is still limited to whatever could be learned about the crime, and without experimentation there’s no way to increase the amout of evidence. Nevertheless, the same rules apply: The jury’s certainty about its conclusions depends on the strength and quantity of evidence, so in order to reach a conclusion, they need either a few pieces of very good evidence (the defendant’s DNA) or a lot of poor evidence (partial fingerprints on the gun, the defendant owns the same kind of car that was seen leaving the scene, a witness who picked the defendant out of a lineup). Either way, the question for the jury is: What are the chances that this evidence would exist even if the prosecutor’s theory was false?

(I’m pretty sure juries don’t actually think about the problem this way, let alone try to calculate the probabilities, but the math still applies whether they use it or not.)

It’s important to note that, as a matter of math, neither scientific experiments nor criminal trials can offer perfect certainty. There is always the possibility of error. The chances of a mistake never go to zero. There is always the chance that the jury will convict an innocent person or release a guilty one. Therefore it’s important to recognize that, whatever we decide we mean by reasonable doubt or moral certainty, it’s never going to be perfect.

I learned about the math when I took a college-level course in probability and statistics that used the book Probability and Statistics for Engineers and Scientists by Walpole, Myers, and Myers. I have qualms about recommending it, however, because it gets bad reviews on Amazon and it’s a textbook for a class, so it’s not really oriented toward someone trying to learn the subject by themselves.

Also, learning college-level calculus-based probability and statistics is probably more of a commitment than you’re prepared to make. I don’t have an actual book to recommend, but I suggest you find one that approaches the subject on a level you’re comfortable with. Note that this shouldn’t just be a book about statistics — how to calculate the mean or find a median — it should specifically address the use of probability and statistics to test scientific hypotheses. This is often called “experimental design” in the table of contents.

This leads somewhat naturally to the third influence on my discusison of reasonable doubt: Statistical quality control. Whether they’re making cars or computers or just parts for something else, some portion of every factory’s output is going to be defective. This defective output has a cost: Either the product is discarded or reworked, or it is delivered to customers who will demand a refund or replacement.

Manufacturers would like to turn out perfect products, but reducing defects comes with a cost. Every time you add a new inspection step, you increase the cost of production. Eventually, you can make your product so expensive that nobody wants to buy it, no matter how good it is. The key is to spend money to improve your product only until you reach the point where the cost of eliminating one more defect is higher than the cost of allowing the defect through the system.

The first relevant point for moral certainty/reasonable doubt is that perfection has a trade-off: We have to strike the right balance between the cost of error and the cost of quality. In a factory, the cost of quality is an increased cost of production. In criminal justice, quality is two sided: There are two kinds of errors, and the cost of reducing errors on one side is an increase in errors on the other side.

If the jury instruction sets the bar too high, you’ll make it extremely unlikely that they’ll convict an innocent person, but you’ll do so at the cost of freeing too many guilty people. On the other hand, if you choose a system that makes it extremely unlikely the guilty will go free, you’ll do so at the cost of wrongly imprisoning too many innocent people.

The second relevant point comes from the emphasis statistical quality control places on the importance of using operational definitions. When you tell someone to measure something, you should also tell them exactly how to measure it. For example, you don’t just say, “The temperature of the reaction vessel should be 220°C.”

Instead, you should give detailed instructions something like this:

“Obtain a Fluke 52-2 digital thermometer from the instrument cabinet. Verify that the calibration sticker has not expired. Using the provided cable, connect the digital thermometer to each of the upper, middle, and lower integrated thermocouples on the reaction vessel. Allow the probe to stabilize for 30 seconds on each thermocouple before recording the reading. If any two readings are more than 12°C different, disgard all readings and file a malfunction report with your supervisor. If the readings are successful, average the values of the three readings. The reactor vessel is at the correct temperature only if the average temperature is at least 220°C and no single reading is below 119°C.”

As you’d imagine, the second instruction is a lot more likely to produce accurate, repeatable results than the first. This suggests to me that the judge should try to provide the jury with a similarly operational definition of reasonable doubt.

The most famous name in statistical quality control is W. Edwards Deming, and I think reading a little bit of either Out of the Crisis or The New Economics would be worthwhile. J. M. Juran offers a more business-like approach in Juran’s Quality Handbook.

Quality control helps you understand how the process affects the error rate, but before you can develop a policy, you also have to know the costs of your errors and therefore the benefits of preventing them. Sending an innocent person to prison has direct costs for the person, the prison system, and society; but freeing the guilty allows them to continue their predatory behavior.

In addition, an especially large and mysterious cost is the incentive that the error creates for others: What happens when criminals realize they are unlikely to be punished for their crimes? What happens when society loses faith in the justice system’s ability to protect the innocent?

Analyizing the strange and far-ranging consequences of changing incentives is something that economists have been studying for years in a field called benefit-cost analysis. There are books on the subject, but to get the flavor of it, I recommend Armchair Economist by Steven E. Landsburg. Be warned that Landsburg has some rather strong opinions and is something of a curmudgeon, but his description of cost-benefit analysis is relatively easy to understand, and the end notes contain references to more scholarly publications.