Wrongful Life?

The reason I like reading nonfiction so much is because I feel I learn all kinds of weird, wonderful things reading them books. Take Elizabeth Price Foley’s The Law of Life and Death for instance. The book touches on the concept of wrongful death, something we all may be familiar with from exposure to the O.J. Simpson’s murder trial.

O.J. Simpson has gotten acquitted in the criminal trial for the murder of his ex-wife and her boyfriend but then was charged in a civil trial for having wrongfully caused their deaths. Wrongful death then is the tort equivalent for criminal homicide. Wrongful death and homicide have the same underlying fact — the unnatural death of a person  — but a wrongful death suit is a legal dispute between two private parties, the remedy for which is monetary compensation, whereas homicide is a criminal charge brought by a government for which the punishment is the loss of liberty/life.

So far, nothing new. But have you heard of the concepts of wrongful life, wrongful birth, or wrongful pregnancy? I haven’t until I read Foley’s book, but they’re very interesting, so let me parrot back to you from the tome what they are.

• Wrongful birth: the charge brought by parents, usually against their medical providers, that the latter had by negligence allowed a birth to happen that should not have. In Smith v. Saraf, the plaintiffs, Mr. and Mrs. Smith “allege that as a result of Dr. Saraf’s negligence in failing to ensure that Mrs. Smith received particular prenatal tests while pregnant with Elijah, Plaintiffs were prevented from discovering that Elijah would be born with a severe birth defect, and thereby deprived of the choice to terminate the pregnancy. Mr. and Mrs. Smith have asserted a claim against Dr. Saraf for “wrongful birth,” which, under New Jersey law, is the parents’ claim for the birth of a severely birth-defective child”.

• Wrongful life: the claim brought by a disabled child asserting that the medical providers’ negligence “prevented his parents from exercising their constitutional right to use contraceptives or abort the pregnancy. But for the defendants’ negligence, the plaintiff (child) would not have been born. A wrongful life claims thus seeks compensation for being born with disabilities.” The same Dr. Saraf mentioned above was hit with a wrongful life claim by the Smiths’ son.

• Wrongful pregnancy: a claim brought by parents against medical providers for negligence in performing sterilization procedures thus resulting in the birth of a healthy but unwanted child. “The essence of the claim is that the parents took reasonable precautions to prevention conception or pregnancy from occurring . . . not not withstanding those precautions, the defendants’ actions resulted in pregnancy or conception. Under this theory, parents have sued physicians who have improperly performed sterilization procedures. They have also sued pharmacists who have improperly dispensed contraceptives as well as the manufacturers of contraceptives that have failed.” See more here.

Pretty crazy stuff, huh? And pretty crazy stuff that I didn’t learn until Foley’s book. I guess we all like stories, but this is the flavor I like my stories to come in.

Free!

Peter Suber’s book “Open Access” has gone open access today. It’s free, free, free!

Even better: Open Access is available in a myriad of formats, including not only your run-of-the-mill PDF but also ePub, Mobi, and HTML. Get the book from its publisher, the MIT Press, for free here. (Alternatively, you can pay Amazon $9.99 for the exact same electronic text.)

Peter Suber’s book is free because the author licensed it via a Creative Commons license, allowing the book to be freely released a year after its publication. This is a pretty neat way to use a Creative Commons license! Seeing the innovative use of the license adds an extra dollop of pleasure to the usual amount I get when a book I want to read is freely available.

Finally, do you guys remember the Library License I mentioned on this blog earlier? I would guess this time-delayed use of a Creative Commons license is an inspiration for the Library License performance trigger licenses, which is itself a pretty cool idea. Do you guys know of any book that has been licensed using this spin-off of Creative Commons licenses?

The Things One Learns . . .

A new business model

Retail legal service

Book selling is somehow also involved.

Legal Force

Hello. Confused? Come on in.

For as low as $145

The things one discovers ambling down the streets of downtown Palo Alto one warm night are many and wondrous. Among them is the lovely store pictured above. What do you think this store does?

I haven’t a more much better idea than you do by looking at the pictures. From reading this article, I’m able to confirm that the store offers a combination of retail legal service (talk right in and talk to one of our lawyers — $45 for a 15 minute initial consultation), book vending (thus explaining the presence of the paper books in the display), and tablet selling (oddly not included in the window display). I’m not sure how these three businesses tie in with one another, and I sure don’t have an idea how the storefront is paying its $50,000 a month rent (perhaps the online business is subsidizing its brick-and-mortar sister?). But, as an observer with no money in the game, I’m really interested in seeing how this business model will turn out. Do you think retail legal service will catch on?

Accessorizing

Is it a bird?

Is it a book?

Why, it’s my new e-reader cover.

For $10 (due to “labor intensity”), Books Beyond Bars will sell you one of these nifty covers that they hand made. The covers came from books that the group is taking to the Barry J. Nidorf Juvenile Detention Center. As the teen detainees are not allowed to have books with hardcovers, Books Beyond Bars has removed the cardboard covers and now converted them into yummy cupcake e-reader shells. (Other more manly options are available.) All the money will go into supporting the student group’s effort future good works. Accessorizing has never felt so good.

I Beg to Differ, Mr. Orwell.

Hat tip to Maria Popova at Brain Pickings for alerting us to George Orwell’s 11 Golden Rules on how to to make the perfect cup of tea. Here are a couple of the 11 nuggets

First of all, one should use Indian or Ceylonese tea. China tea has virtues which are not to be despised nowadays — it is economical, and one can drink it without milk — but there is not much stimulation in it. One does not feel wiser, braver or more optimistic after drinking it. Anyone who has used that comforting phrase ‘a nice cup of tea’ invariably means Indian tea . . .

Sixthly, one should take the teapot to the kettle and not the other way about. The water should be actually boiling at the moment of impact, which means that one should keep it on the flame while one pours . . .

Ninthly, one should pour the cream off the milk before using it for tea. Milk that is too creamy always gives tea a sickly taste . . .

Oh, Mr. Orwell, you may be funny and ironic and terribly sly in offering “controversial points . . . in connexion with tea drinking”, but on tea making, you are so very wrong. Have you ever drunk anything but black tea? And even with black teas, there are many fine Chinese varieties that are not to be drunk with milk, sugar, cream or anything that isn’t tea leaves and water!

A Very Strange Book

Have any of you read James Q. Whitman’s The Verdict of Battle: The Law of Victory and the Making of Modern War? As Whitman’s book is no bestseller and my blog no mega popular web spot, I realize the chances that one of you will say yes is low, but I’d be most interested in hearing what you think of the book if you have read it.

I think it a very strange book. Two chapters into The Verdict of Battle, and I can’t say that I’ve managed to wrap my head around Whitman’s thesis. That thesis, as far as I can tell, is that pitched battles are a form of legal proceeding, and for contestants that submit themselves to this legal form of war, warfare is remarkably effective is settling claims while limiting the carnage to the battlefield. This legal procedure, argues Whitman, is much more effective than the modern humanitarian laws of war. But we can rely on it no more because the law of the pitched battles, or the law of victory (just victoriae), as distinguished from the law of just causes for declaring war (jus ad bellum) or the law governing behavior in war (jus in bello), reigns when a) the monarchy monopolizes the power to do violence and b) when that power is exercised towards the end of property acquisition. Modern warfare fails in one or both of these measures and therefore are not governed by jus victoriae. This is a tragedy, argues Whitman.

This last may be the most counter-intuitive point in Whitman’s overall thesis, but I find the whole argument to be very strange. I can neither agree nor disagree with Whitman’s argument; I can’t quite grasp his idea, but I can’t say that the gist of what Whitman says entirely escapes me either;  I don’t know where the logical or factual flaws are, and I don’t have the confidence to declare that they aren’t there. There’s something unsettling about The Verdict of Victory, and it disquiets me even more that I can’t quite put my finger on what this something is.

Let me know what you think of the book.

Whitman’s “The Verdict of Battle”, a baffling book

Death is a Good Time to be Acknowledged.

Death is a good time to be acknowledged. This is only sensible: your death is an occasion to remind people what you may have accomplished in life. It serves as a coordinating mechanism, a reason, or an excuse for people to devote air time to talk about you, do a eulogy, or recap your legacy. Death is also a good time for people to dedicate their books to you.

I come to this shatteringly obvious conclusion after picking up two books not thematically related yet dedicated to the same person. Mann and Orstein’s The Broken Branch: How Congress Is Failing America and How to Get It Back on Track is dedicated “to the memories of the two great legislators who understood: Barber Conable and Pat Moynihan”, while Michael Lind’s The American Way of Strategy: U.S. Foreign Policy and the American Way of Life includes the dedication, “in memory of Daniel Patrick Moynihan 1927-2003”.

Daniel Patrick Moynihan was a US politician and scholar. Both of the above books dedicated to him were published in 2006 and presumably started some years earlier, close to the time of Moynihan’s death in 2003. Mr. Moynihan sounds like an overall impressive person who may have had books dedicated to him even during his life time. Yet, this fact notwithstanding, his death results a flurry of acknowledgements of his life.

Reading About Sex

The book I’m reading is Under Household Government: Sex and Family in Puritan Massachusetts by M. Michelle Jarrett Morris. M. Morris describes her book in this way, “this is a story about families and family life in late seventeenth-century Massachusetts. The families in [this book] were bound together by . . . [family] members who stood accused of sexual misbehavior. And so, this is also a story about sex.” Sex, in this context then, refers to sexual crimes as recorded in case files stretching from 1660 to 1700 from Massachusetts Bay. Sex subsumes fornication (sex with an unmarried woman), premarital fornication (sex between two unmarried people who subsequently marry), impotency, bigamy, rape, and infanticide.

If you at this point feel baited with scintillating sex and then switched for a book about Puritans and dusty legal proceedings (published by Harvard University Press no less!), then let me assure you that there are plenty of details, if not quite scintillating, then fascinating to be found in this book. For instance,

• Did you know that “because [Puritan] medical theory held that conception required both men and women to reach orgasm, early modern people generally believed that conception required consent”? This means that if a woman is pregnant, then she cannot believably claim that she was raped. Methinks some of this sentiment remain in contemporary American society today, as famously exemplified in the “legitimate rape” comment made by a political candidate in the last election. Me also think it’s strange that no Puritan matron with a brood of children ever contradicted this medical belief.

• Did you know that Puritan “law gave great weight to the testimony of a woman in labor”? “Because lawmakers assumed that a woman in labor, and therefore in great pain and in danger of dying, would not lie, whomever that woman named during labor would become the reputed father of the child about to be born” says M. Morris. This seems sensible enough in the days before Epidural, safe deliveries, or paternity tests. As my Law and Order watching informs me, this practice of relying on the testimony of somebody in great duress, as a Puritan woman in the height of her labor would be, is still with us today. For example, there is an exception to the hearsay rule which says that a statement as testified to by a person to whom it is told is not considered hearsay and excluded as evidence if the statement were “uttered spontaneously and under duress”.

• What would you guess is the age at which a Puritan is able to consent to sex? Let me (or rather M. Michelle Jarrett Morris) tell you a little story: “On June 20 of 1682, Sarah accused Garey, a thirty-one year-old married man, of being the father of her bastard child. She was eleven years old. Since the age of consent was ten in Massachusetts Bay, Stephen Garey, presumably, missed being charged with statutory rape by only a few months”. Sarah’s life seems picture-perfect for the term “nasty, short, and brutish” as she eventually died two months before turning sixteen, after bearing two more children presumably by Garey as well, and being imprisoned and whipped for fornication.

Do check out Morris’s book. A fascinating read!

Readers & Bloggers

Almost all blogs that I chance upon who happen to touch on the topic mention how much the bloggers enjoy writing because of the interactions their blogs allow them to have with their readers. This got me to thinking. How does having readers affect your blogging?

How does knowing that the words you published are seen by others affect the creativity or dedication that you put into penning those words? How does not having as many readers as you would like influence your writing? Are you discouraged when nobody comes by your blog? Are your spirits lifted by those who do come? Do you not care? Do you effect not caring? Do you take steps to discourage people from coming, e.g. marking your blogs as private or writing particularly unwelcoming “About” pages? What do you do?

Pray do tell.

Not More than the Sum of its Parts

Collections of essays fall into two sorts: those that are intentionally written to be a collection and those with their constituent parts written, and even initially published, as individual pieces but then eventually pulled together to make a book. Examples of the former include Joseph Epstein’s Narcissus Leaves the Pool, Anne Fadiman’s At Large and At Small: Familiar Essays, and Christopher Hitchens’s Arguably, while the latter counts in their ranks Ronald Coase’s Essays on Economics and Economists, Gore Vidal’s Sexually Speaking: Collected Sex Writings 1960-1998, and Randy Cohen’s Be Good: How to Navigate the Ethics of Everything.

There exists a third type of books that read like a collection of essays. These are projects conceived around a single, coherent theme, but as the books develop, their chapters uncouple enough from each other so that they can be read singly and in no strict order to each other. Unlike their conceived-as-essays counterparts, however, these chapters are not self-contained and interesting enough to be read by just themselves. That is, they probably should be read with the introductions to the books, and likely no outlet would publish the chapters as separate units.

The book that I think is a good specimen of this third category is Stuart Banner’s .American Property: A History of How, Why, and What We Own. The chapters from this book are

1. Introduction 2. Lost Property 3. The Rise of Intellectual Property 4. A Bundle of Rights
5. Owning the News 6. People, not Things 7. Owning Sound 8. Owning Fame
9. From the Tenement to the Condominium 10. The Law of the Land 
11. Owning Wavelengths 12. The New Property 13. Owning Life 14. Property Resurgent 15. The End of Property?

The similarly named chapters, “Owning the News”, “Owning Sound”, “Owning Fame” . . . etc., are the most obvious chapters can be read disjointed from each other. You needn’t read “Owning Sound” only after reading “Owning the News” or just before “Owning Fame”, and you needn’t read any of those chapters to appreciate any other chapter. And this is just as true with the other chapters whose names don’t mirror each others’ as clearly.

Some authors are cognizant of the fact that their books fall into this category and actively encourage their readers to read, hop, and skip around their works instead of treating it as a linear, cohesive tome. American Property isn’t one of these, but P.D. Smith’s City: A Guidebook for the Urban Age is.

How do you like this type of book?