Wisdom from the 42nd Page

Academic Legal Writing

On the forty-second page of “Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review” law professor & blogger Eugene Volokh wrote (emphasis added):

courts should err on the side of nondiscrimination and thus coeducation.

This is especially true for historical or empirical claims. It's hard to be sure about what people really believed or did many decades or centuries ago, or about what's happening in thousands of courtrooms or workplaces today; and readers who think deeply about such matters realize this. Make your descriptive claims clearly and forcefully, and explain why your interpretation of the history or of the data is the best one. But also acknowledge what other interpretations there might be.

4. Acknowledge costs

Finally, the difficulties can make you acknowledge that your proposal is not cost-free—that it to some extent sacrifices important government interests, or causes some possibly harmful side effects, or may at times be hard to administer. Skeptical readers will see these problems on their own, even if you don't admit that they exist. If you ignore the problems, the readers may assume the worst about the problems' magnitude.

If, however, you acknowledge the costs of your proposal but explain why the benefits exceed the costs, you can persuade many readers. No one expects any new proposal to be perfect. Explaining the proposal's downside can actually make it more credible—and can make you look more forthright and realistic.

4. Make Your Article Richer: Connect to Broader Issues, Parallel Issues, and Subsidiary Issues

1. Go beyond the basic claim

So far, we've focused on the core claim: The nugget of novelty, nonobviousness, and utility that will be your contribution to the state of legal knowledge. This is the heart of your article, and you should focus primarily on explaining and proving it.

Most claims, though, can provide insights that go beyond their narrowest boundaries; the claims have unexpected implications that flow naturally from them, even though these implications don't strictly need to be discussed. Exploring these matters can add nuance to your core claim that will make it more novel and nonobvious.

More broadly, if you can make your article richer and more sophisti[cated]

More information about “Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review” (and the book itself) is available from:

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(Foundation Press, December 2004. Paperback, 262 pages. ISBN: 1599411954; EAN: 9781599411958.)

Conquest by Law

On the forty-second page of “Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands” author Lindsay G. Robertson wrote (hyperlinks & emphasis added):

There was no time. The Philadelphia shareholders were anxious not to miss the present opportunity, and Harper and Etting accommodated them by simply instructing their Baltmire publisher to reprint the 1810 memorial, appending a 1775 opinion by a London lawyer recognizing the validity of individual purchases of Indian lands together with the endorsements of the opinion by London lawyer John Glynn, Philadelphia patriot Benjamin Franklin, and Virginia revolutionary firebrand Patrick Henry.⁴⁸ The 1816 memorial closed with an extract from the Companies' 1797 memorial, "presented," it was noted, "by [Supreme Court] Judge [James] Wilson," affirming the validity of an unlicensed seventeenth-century transfer of Mohegan Indian lands in Connecticut to Major John Mason. One other change was made, presumably to avoid the appearance of any conflict of interest: Harper's name, which had appeared prominently at the close of the 1810 memorial, was deleted from the 1816 version.

The First Session of the Fourteenth Congress convened on December 4, 1815. On January 25, 1816, Jeremiah Morrow of Ohio presented the memorial to the Senate; the memorial was read and referred to committee.⁴⁹ Two days later, as noted, Maryland elected Harper a senator. When he arrived at the Capitol on February 5, Harper immediately went to work on his new colleagues. As the month progressed, his efforts appeared to be bearing fruit; on February 28, Brinton, Simon Gratz, and Callender Irvine wrote from Philadelphia that they had been "most gratified by the latest accounts from Washington" stating "that there is a greater disposition prevailing to do justice to the claims of the Illinois and Wabash Companies than heretofore and that there is every reason to believe we shall have a favorable Report in the Senate."⁵⁰

Only eight weeks remained in the session, however. The Companies began fearing that "the business w[ould] not be taken up" before Congress recessed for the summer, "owing to the press of business of a public nature." Congress, they knew, was always "disinclined ... towards the conclusion [of a session] to enter on matters that they take little Interest in."⁵¹ In the end, despite the best efforts of Harper and his agents, this is precisely what happened. Congress adjourned on April 30 with no action having been taken by the Senate committee.⁵²

Ironically, however, the same Congress did finally break the logjam on

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(Oxford University Press, USA, 20050727. Hardback, 272 pages. ISBN: 019514869X; EAN: 9780195148695.)

Skeletons of the Zahara

The story of the 1815 shipwreck of the American merchant ship Commerce, published in the 1820s by the ship's captain himself, was one of the most influential books Abraham Lincoln read in his youth. On the forty-second page of this moderning retelling, “Skeletons on the Zahara: A True Story of Survival,” author Dean King wrote (hyperlinks & most emphasis added):

1810. Also that year, sixteen-year-old apprentice seaman Alexander Scott of Liverpool, England, began six years of wandering after the Brazil-bound ship Montezuma, under Captain Knubley, wrecked north of Cape Bojador. All left accounts of death and bondage on the Sahara and suffering so extreme that the authors begged forgiveness for soundling like liars. And they were among the very, very few survivors.

The Commerce had no intention of going near Cape Bojador. Carrying brandy, wine, and Spanish dolalrs acquired in Gibraltar, as well as Riley's private venture (known as an "adventure")—a chest full of silk lace veils and handkerchiefs—the Commerce set sail for the Cape Verde Islands on August 23, after nearly two weeks in Gibraltar.¹

According to Riley's account, the brig's primary cargo for North America was to be salt, a major export of the dry, windswept tropical archipelago 330 miles west of Africa, which also dealt in ships' provisions and slaves. Riley's plan made sense. The salt trade between the United States and these Portuguese islands had been choked off by the war. Stores would be ample and demand in the States strong.

It is possibly that Riley instead intended to buy slaves. He could have done so in the islands, or he may actually have considered landing on the slave coast of Africa. If so, he probably would have planned to sell them in the West Indies, most likely in Cuba, where Connecticut River merchants were well established, and to then take on a cargo of sugarcane, molasses, and rum before returning home. Although the importation of slaves had been illegal in Connecticut since 1790 and in the United States since 1808, some New England vessels, including those of reputable merchants, practices this lucrative so-called triangular trade well into the nineteenth century.

According to Sherman Adams and Henry Stiles's History of Ancient Wethersfield, a rumor later surfaced that the brig was in fact after slaves. This was reported by Charles Williams, a citizen of the town, who reasoned that Commerce was "a long way out of the course she should have sailed," and that "her cargo consisted prin[cipally]

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(Little Brown and Company, February 2004. Hardcover, 368 pages. ISBN: 0316835145; EAN: 9780316835145.)

Tulipomania

On the forty-second page of “Tulipomania: The Story of the World's Most Coveted Flower & the Extraordinary Passions It Aroused” author Mike Dash wrote (most emphasis added):

of his own. Instead, he took pleasure in stocking the gardens of his friends, and they in turn provided him with a host of experimental seedbeds with which to investigate the properties of the plants he had discovered.

Clusius made full use of his friends' gardens in preparing some of the masterful botanical studies to which he devoted much of the latter part of his life. These books, which included detailed studies of the flora of Spain, Austria, and Provence, were among the first to assume that plants are more than simply potential ingredients in the dubious medical preparations of the day and are worthy of study in their own right. Because of this Clusius has always been considered one of the fathers of botany, not least because he developed a system for classifying plants in groups according to their characteristics—an idea that would later be taken up by Carl Linnaeus and turned into one of the foundation stones of modern science.

In May 1573, while Clusius was still living in Mechelen and busy distributing tulip bulbs and other plants throughout Europe, he was asked by the Holy Roman emperor, Maximilian II, to go to Vienna and establish an imperial hortus—or botanic garden—there. This was a tempting offer. Clusius's father, whom he had been supporting had just died at the age of eighty-one freeing his son from the burden of caring for him. The proposed salary of five hundred Rhine guilders a year would let Clusius—who had been embarrassingly dependent on the charity of friends for years—live comfortably at last. And Maximilian wanted a garden to outshine those his princes and nobles had been cultivating. Clusius, whose poverty and scanty claim to the ranks of nobility had left him with something of an inferiority complex, was flattered by the attention and grateful that the emperor offered formal acknowledgment of his status as a noble. In addition, he already knew a little about his prospective patron, who was one of the few emperors ever to show sympathy toward the Protestant faith; his friend and regular correspondent Johannes Crato

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(Three Rivers Press, January 2001. Paperback, 288 pages. ISBN: 060980765X; EAN: 9780609807651.)

The Thinker's Thesaurus

On the forty-second page of “The Thinker's Thesaurus: Sophisticated Alternatives to Common Words” author Peter E. Meltzer wrote (hyperlinks & most emphasis added):

towards learning higher vocabulary, he quotes an educator who visited a classroom of 12-year-olds and observed them studying verbal analogies in anticipation of the SAT. "I learned that they spend hours each month... studying long lists of verbal analogies such as 'untruthful is to mendacious as circumspect is to caution.' The time involved was not aimed at developing the students' reading and writing abilities but rather their test-taking skills." McWhorter states that "the passage got around in the media, intended to make people shake their heads at such a sad sight," and that:

"[I]t is telling that it spontaneously struck [the educator] as being so sad, so beside the point of education, that twelve-year-olds were being taught the meaning of written words. ... [He] assumes that this learning of words is unrelated to the developing students' reading abilities. ... [H]is discomfort at seeing twelve-year-olds drilled on words like this marks him as a man of our times, for whom learned levels of English are less a main course than a garnish in an education [and that] learning high vocabulary [is] an imposition."

One suspects that those who would object to the use of words contained in this thesaurus also concur with the notion that teaching of analogies such as "untruthful is to mendacious as circumspect is to caution" is a waste of time. However, McWhorter notes that this is "hardly self-evident" and quotes an English professor from Rutgers who conducted a study that found "an extraordinary high correlation" between SAT verbal scores and final grades and a much lower correlation between grades and socio-economic status. In other words, mastering the types of verbal skills tested by the SAT is not an exercise in trivia or one which has no predictive values of furture performance in broader academic areas. The same may be said of the synonyms in this thesaurus: learning their use is not an exercise in trivia or becoming lexiphanic.

In a Utopian lexicographical world, the synonyms that appear in this thesaurus will be as familiar and accessible to everyone as the mundane synonyms which now appear in ordinary thesauruses. Perhaps this book is a small step in that direction. However even though none of us can be expected to know every word in the English language, or even

20. The word "insouciant" once again points out the flaw with Mr. Kilpatrick's argument. About that word, we may safely assume, first, that Mr. Kilpatrick nows what it means (and has likely used it himself from time to time), second, that he would never equate it with any of Mr. Buckley's word choices which Mr. Kilpatrick mocks, and third, that he would find ludicrous the notion that it should be jettisoned from the language. And yet, despite these assumptions, two things are true: First that the simpler words "nonchalant" or "carefree" could be substituted for "insouciant" just about every time. Second, and more importantly, there are many people who do not know the meaning of "insouciant." But, given our assumptions above, what can Mr. Kilpatrick say to those people? The only thing he could say is that literate people should know that word. Of course, that brings us right back to the problem of setting him up as the standard we would have to consult on every word. One wonders where, for example, would he stand on a less common synonym for "insouciant," such as "dégagé" which is used in this thesaurus? In any event, the point is clear. Of course, it is entirely possible that some words may appear in some dictionaries but not in others. However, this is almost always by virtue of the simple fact that some dictionaries are more comprehensive than others and thus will necessarily contain more words, particularly the kind of which appear in this thesaurus. For example, the number of entries of the typical college dictionary is exceeded by the number in the 4th edition of The American Heritage Dictionary of the English Language. This in turn is exceeded by Webster's Third International Dictionary, which in turn is exceeded by the Oxford English Dictionary.

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(Marion Street Press, September 2005. Paperback, 461 pages. ISBN: 0972993797; EAN: 9780972993791.)

Complications

Harvard trained surgeon Atul Gawande explores the power and limits of modern medicine in “Complications: A Surgeon's Notes on an Imperfect Science.” On the forty-second page he writes (emphasis added):

results in medical treatment, many doctors are not fully convinced. And they have been particularly reluctant to apply the same insight to the area of medical diagnosis. Most physicians believe that diagnosis can't be reduced to a set of generalizations—to a "cookbook," as some say. Instead, they argue, it must take account of the idiosyncrasies of individual patients.

This only stands to reason, doesn't it? When I am the surgical consultant in the emergency department, I'm often asked to assess whether a patient with abdominal pain has appendicitis. I listen closely to his story and consider a multitude of cators: how his abdomen feels to me, the pain's quality and location, his temperature, his appetite, the laboratory results. But I don't plug it all into a formula and calculate the result. I use my clinical judgment—my intuition—to decide whether he should undergo surgery, be kept in the hospital for observation, or be sent home. We've all heard about individuals who defy the statistics—the hardened criminal who goes straight, the terminal cancer patient who miraculously recovers. In psychology, there's something called the broken-leg problem. A statistical formula may be highly successful in predicting whether or not a person will go to a movie in the next week. But someone who knows that this person is laid up with a broken leg will beat the formula. No formula can take into account the infinite range of such exceptional events. That's why doctors are convinced that they'd better stick with their well-honed instincts when they're making a diagnosis.

One weekend on duty, I saw a thirty-nine-year-old woman with pain in the right-lower abdomen who did not fit the pattern for appendicitis. She said that she was fairly comfortable and she had no fever or nausea. Indeed, she was hungry, and she did not jump when I pressed on her abdomen. Her test results were largely equivocal. But I still recommended appendectomy to the attending surgeon. Her white blood cell count was high, suggesting infection, and, moreover, she just looked sick to me. Sick patients can have a cer[tain]

(But see page 43: "...The radical implication of the Swedish study is that the individualized, intuitive approach that lies at the center of modern medicine is flawed—it causes more mistakes than it prevents...." Very interesting reading.)

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(Picador, April 2003. Paperback, 288 pages. ISBN: 0312421702; EAN: 9780312421700.)

The Velocity of Honey

On the forty-second page of “The Velocity of Honey: And More Science of Everyday Life” author Jay Ingram wrote (emphasis added):

be hard-wired differences (even the great apes have them) can change over a relatively short time. Also, the examination of Central and South American art showed that regional differences existed at the same time. If you then take into consideration one additional study revealing that in Madagascar, women prefer to hold their babies on the right, not the left, the puzzle deepens even further.

If the secret lies in the brain, then explanations will have to be found for these contradictions that seem to have existed over time, and from place to place. That won't be easy, for however plastic and adaptable the brain is, it would take some powerful influence—as yet unidentified or even unimagined—to switch hemispheric specializations. Such switching does occur in some, but by no means all, left-handed people, but there's no evidence that baby-holding follows handedness; in fact, most left-handers hold babies on the left too.

It might be that we're still not close to an answer here. I have to admit that when I heard the brain-hemisphere theory for the first time, I found it hard to believe. After all, the advantage gained by having the "emotional" right hemisphere the one on duty must be marginal at best. It doesn't take a right hemisphere to hear the tone of distress in a baby's cry or see the happiness in a smile. Maybe the scientists are making too much of it. But if it isn't the brain, then what is it?

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(Basic Books, February 2005. Hardcover, 224 pages. ISBN: 1560256540; EAN: 9781560256540.)

Rats

On the forty-second page of “Rats: Observations on the History and Habitat of the City's Most Unwanted Inhabitants” author Robert Sullivan wrote (emphasis added):

there were also huge rat infestations in Harlem, the Lower East Side, and Brooklyn; in 1969, the city was working to exterminate rats in an area of 1,600 blocks in predominantly low-income neighborhoods. But the Park Avenue rats were followed with great scrutiny. Most of the rats were exterminated in two weeks. The Times called the Park Avenue rats "refugees from Harlem, where no one in authority seemed terribly concerned about their deprivations." Of course, students of rat behavior will tell you that the rats were not refugees from Harlem. Harlem is a mile away. The rats were Park Avenue rats. Still, the notion persisted that rats somehow didn't belong on Park Avenue, that Park Avenue was not their habitat. A woman living near the infestation said, "The idea of rats crawling around on children in the ghetto really hits home when you see them on Park Avenue."

The discrepancy between people who had rats and people did not was underscored in 1959. It was a time when Americans and New Yorkers felt safe from rats. It was during the Cold War, and Soviet officials were in Manhattan visiting a technology show that highlighted Soviet inventions. A headline in the Daily News boasted U.S. EXPERTS WANDER AT RED SHOW & WONDER AT NOTHING. The same week, however, a three-month-old baby died in Coney Island. His mother heard him crying in the night and thought he wanted a bottle but soon discovered he was being bitten by rats. The baby had been sleeping in a carriage in the kitchen, and he was bitten repeatedly. Between January of 1959 and June 1960, 1,025 rat bites were reported in New York, twice as many as reported in the next ten largest U.S. cities combined. Sixty thousand buildings were identified as rat harborages by the city's health department—buildings constructed before 1902 that had been designed to house a few families and were now housing dozens. In 1964, nine hundred thousand people were reported living in forty-three thousand old law tenements. And then, rat-wise, things got worse. After the demolition of many of those buildings, in the pits of garbage-injected rubble, rats multipled. The situation was described in one account as a "rat paradise."

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(Bloomsbury USA, March 2005. Paperback, 256 pages. ISBN: 1582344779; EAN: 9781582344775.)

Interface

On the forty-second page of their political thriller, “Interface,” authors Neal Stephenson & J. Frederick George wrote (emphasis added):

their broken-backed sofa in the trailer in Commerce City, his beer in his hand, meditating over this doorjamb, planning to come and take it away. Had it been eating at him ever since they had moved out?

Clarice's birthday was next week. Maybe he intended to give this to her as a birthday present. It had great sentimental value, and it was free.

"Harmon?" she said, again, and heard it echo again off the bare walls of the house. She went to check the bedrooms, but he wasn't in any of them.

The sound of music finally drew her to the garage. Faint tinny music was coming out of the Volvo's stereo. It was barely audible through the mudroom door. She went into the garage.

Harmon was sitting in the driver's seat of the Volvo, reclined all the way back. Once she got the door open, she recognized the music: Mahler's Resurrection Symphony. Harmon's favorite. Years ago, on their first trip to Colorado, they had parked on the summit of Pike's Peak and listened to this tape, loud.

She walked quietly up the flank of the Volvo and looked in the drivers window. Harmon had leaned the seat all the way back and folded up his jacket to make a little pillow on the headrest. His eyes were closed and he wasn't moving.

The keys were in the ignition, in the ON position. The tank was empty. The engine was dead. The volume on the stereo was turned all the way up. The tape had been running for hours, possibly even days, auto-reversing itself back and forth, playing the symphony over and over again, running the battery down until hardly anything came out of the speakers.

Harmon was dead. He had been dead for quite some time.

Before she did anything else she reached inside the car and pounded the garage door opener clipped to the sun visor. The big door creaked open, letting in a rush of resh clean air and opening up a clear glittering view of the suburbanized foothills.

It was a very sensible thing to do. Eleanor Richmond did it because she was not crazy, would not allow herself to be crazy, would not allow herself to succumb to the poison gas that her husband had used to kill himself. Her kids and her

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(Spectra Books, May 2005. Paperback, 640 pages. ISBN: 0553383434; EAN: 9780553383430.)

Sleep Demons

On the forty-second page of “Sleep Demons: An Insomniac's Memoir” author Bill Hayes wrote (hyperlinks & emphasis added):

man's criteria? I was alert to noise, heat, the sky, as if my senses were turned on at high volume; I was aware of myself as separate from my mother, separate from the aircraft. Still, I know this wouldn't be enough for him. It's far too subjective. In the same way that it's difficult to determine the exact instant a person wakes up, Dr. Kleitman felt that the transition from "the primitive nonconscious wakefulness" of a newborn to full consciousness does not occur all at once.

If I were to meet with him, he would demand of me unassailable proof, exactly as he had of Eugene Aserinsky when the student came to him in 1951, claiming to have discovered the existence of REM. He presented numerous polygraphic recordings of subjects in REM sleep, including his son. As Dr. Aserinsky later wrote, the evidence seemed irrefutable. But Dr. Kleitman wanted to see the "wiggling" eyes for himself. He gave Aserinsky a small home-movie camera.

Mindful of the blinding floodlights required for filming, Aserinsky rigged up a dimmer switch to raise their brightness gradually while his sleeping subjects progressed toward REM. To enhance visibility, their eyelids had been blackened with greasepaint. The camera was held close to the subjects' faces and made a loud whirring noise, Aserinsky later recalled; he was sure they'd wake up. They didn't. Hence, by accident, he'd found that in REM, a sleeper's resistance to arousal was quite high, a previously unknown aspect of this state. Because of its distinctive EEG, he had thought of it before as a variant of wakefulness.

Aserinsky returned to Dr. Kleitman's office to show his "home movies." But even this documentation was not enough. The doctor could not be convinced until he had observed a session in the sleep laboratory. For a subject, Dr. Kleitman insisted upon using one of his daughters. Finally he was satisfied. The data confirmed that REM sleep occured with tremendous activation of the brain—a finding in direct con[flict]

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(Washington Square Press, January 2002. Trade Paperback, 368 pages. ISBN: 0671028154; EAN: 9780671028152.)