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Archive for the ‘Communication’ Category

A Conversation Between Terry Eagleton and Roger Scruton

In Academia, Arts & Letters, Books, Britain, British Literature, Communication, Conservatism, Creativity, Fiction, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Scholarship, The Academy, Western Civilization on September 21, 2016 at 6:45 am

In 2012, the Royal Institution of Great Britain hosted Terry Eagleton and Roger Scruton for an evening of conversation and debate.  Here is the footage of that event:

Is Hacking the Future of Scholarship?

In Arts & Letters, Books, Communication, Ethics, Historicism, History, Humanities, Information Design, Property, Scholarship on November 19, 2014 at 8:45 am

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This piece originally appeared here in Pacific Standard in 2013.

Most attorneys are familiar with e-discovery, a method for obtaining computer and electronic information during litigation. E-discovery has been around a long time. It has grown more complex and controversial, however, with the rise of new technologies and the growing awareness that just about anything you do online or with your devices can be made available to the public. Emails, search histories, voicemails, instant messages, text messages, call history, music playlists, private Facebook conversations (not just wall posts)—if relevant to a lawsuit, these and other latent evidence, for better or worse, can be exposed, even if you think they’ve been hidden or discarded.

Anyone who has conducted or been involved with e-discovery realizes how much personal, privileged, and confidential information is stored on our devices. When you “delete” files and documents from your computer, they do not go away. They remain embedded in the hard drive; they may become difficult to find, but they’re there. Odds are, someone can access them. Even encrypted files can be traced back to the very encryption keys that created them.

E-discovery has been used to uncover registries and cache data showing that murderers had been planning their crimes, spouses had been cheating, perverts had been downloading illegal images, and employees had been stealing or compromising sensitive company data or destroying intellectual property. Computer forensics were even used to reveal medical documents from Dr. Conrad Murray’s computer during the so-called “Michael Jackson death trial.”

More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known.

Computer forensics can teach you a lot about a person: the websites he visits, the people he chats with, the rough drafts he abandons, the videos he watches, the advertisements he clicks, the magazines he reads, the news networks he prefers, the places he shops, the profiles he views, the songs he listens to, and so on. It is fair to say that given a laptop hard drive, a forensic expert could nearly piece together an individual’s personality and perhaps come to know more about that person—secret fetishes, guilty pleasures, and criminal activities—than his friends and family do.

In light of this potential access to people’s most private activities, one wonders how long it will be until academics turn to computer forensics for research purposes. This is already being done in scientific and technology fields, which is not surprising because the subject matter is the machine and not the human, but imagine what it would mean for the humanities? If Jefferson had used a computer, perhaps we would know the details of his relationship with Sally Hemings. If we could get ahold of Shakespeare’s iPad, we could learn whether he wrote all those plays by himself. By analyzing da Vinci’s browsing history, we might know which images he studied and which people he interacted with before and during his work on the Mona Lisa—and thus might discover her identity.

There are, of course, government safeguards in place to prevent the abuse of, and unauthorized access to, computer and electronic data: the Wiretap Act, the Pen Registers and Trap and Trace Devices Statute, and the Stored Wired and Electronic Communication Act come to mind. Not just anyone can access everything on another person’s computer, at least not without some form of authorization. But what if researchers could obtain authorization to mine computer and electronic data for the personal and sensitive information of historical figures? What if computer forensics could be used in controlled settings and with the consent of the individual whose electronic data are being analyzed?

Consent, to me, is crucial: It is not controversial to turn up information on a person if he voluntarily authorized you to go snooping, never mind that you might turn up something he did not expect you to find. But under what circumstances could computer forensics be employed on a non-consensual basis? And what sort of integrity does computer or electronic information require and deserve? Is extracting data from a person’s laptop akin to drilling through a precious fresco to search for lost paintings, to excavating tombs for evidence that might challenge the foundations of organized religion and modern civilization, or to exhuming the bodies of dead presidents? Surely not. But why not?

We have been combing through letters by our dead predecessors for some time. Even these, however, were meant for transmission and had, to that end, intended audiences. E-discovery, by contrast, provides access to things never meant to be received, let alone preserved or recorded. It is the tool that comes closest to revealing what an individual actually thinks, not just what he says he thinks, or for that matter, how and why he says he thinks it. Imagine retracing the Internet browsing history of President Obama, Billy Graham, Kenneth Branagh, Martha Nussbaum, Salmon Rushdie, Nancy Pelosi, Richard Dawkins, Toni Morrison, Ai Weiwei, or Harold Bloom. Imagine reading the private emails of Bruno Latour, Ron Paul, Pope Francis, Noam Chomsky, Lady Gaga, Roger Scruton, Paul Krugman, Justice Scalia, or Queen Elizabeth II. What would you find out about your favorite novelists, poets, musicians, politicians, theologians, academics, actors, pastors, judges, and playwrights if you could expose what they did when no one else was around, when no audience was anticipated, or when they believed that the details of their activity were limited to their person?

This is another reason why computer and electronic data mining is not like sifting through the notes and letters of a deceased person: having written the notes and letters, a person is aware of their content and can, before death, destroy or revise what might appear unseemly or counter to the legacy he wants to promote. Computer and electronic data, however, contain information that the person probably doesn’t know exists.

More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known. We should embrace—although we don’t have to celebrate—the technologies that enable us to produce this wealth of knowledge previously unattainable to scholars, even if they mean, in the end, that our heroes, idols, and mentors are demystified, their flaws and prejudices and conceits brought to light.

The question is, when will we have crossed the line? How much snooping goes too far and breaches standards of decency and respect? It is one thing for a person to leave behind a will that says, in essence, “Here’s my computer. Do what you want with it. Find anything you can and tell your narrative however you wish.” It is quite another thing for a person never to consent to such a search and then to pass away and have his computer scanned for revealing or incriminating data.

It’s hard to say what crosses the line because it’s hard to know where the line should be drawn. As Justice Potter Stewart said of hard-core pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Once scholars begin—and the day is coming—hacking devices to find out more about influential people, the courts and the academic community will be faced with privacy decisions to make. We will have to ask if computer and electronic data are substantially similar to private correspondence such as letters, to balance the need for information with the desire for privacy, to define what information is “private” or “public,” and to honor the requests of those savvy enough to anticipate the consequences of this coming age of research.

Amid this ambiguity, one thing will be certain: Soon we can all join with Princess Margaret in proclaiming, “I have as much privacy as a goldfish in a bowl.” That is good and bad news.

Paul H. Fry on “Semiotics and Structuralism”

In Arts & Letters, Books, Communication, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Rhetoric, Scholarship, Semiotics, Teaching, The Academy, Western Philosophy, Writing on July 16, 2014 at 8:45 am

Below is the seventh installment in the lecture series on literary theory and criticism by Paul H. Fry.  The three two lectures are here, here, here, here, here, here, and here.

Allen Mendenhall Interviews Daniel J. Kornstein

In America, American History, Arts & Letters, Books, British Literature, Communication, Essays, Humanities, Literature, Oliver Wendell Holmes Jr., Politics, Rhetoric & Communication, Shakespeare, Writing on June 4, 2014 at 8:45 am
Dan Kornstein

Daniel J. Kornstein

Daniel J. Kornstein is a senior partner at the law firm of Kornstein Veisz Wexler & Pollard, LLP, in New York City.  He earned his law degree from Yale Law School in 1973 and has served as the president of the Law and Humanities Institute.  He has authored several books including Loose Sallies, Something Else: More Shakespeare and the Law, Unlikely Muse, Kill All the Lawyers? Shakespeare’s Legal Appeal, Thinking under Fire, and The Music of the Laws.  His writing has appeared in The New York Times, Wall Street Journal, Chicago Tribune, Baltimore Sun, and the Boston Globe.  In 2002, Dan received the Prix du Palais Littéraire from the Law and Literature Society of France.  In 2013, King Michael of Romania awarded him the Order of the Crown of Romania.

AM: Thanks for taking the time to discuss your new book with me, Dan. The name of the book is Loose Sallies, and as you state in your introduction, it’s not about fast women named Sally. For those who haven’t read the introduction or purchased the book yet, could you begin by discussing the book generally and say something in particular about your chosen genre: the essay.

Loose SalliesDJK: Thank you, Allen, for this opportunity. Those of us who occasionally write are, as you know from your own experience, always delighted to have a chance to explain a bit about how and why we scribble. Loose Sallies is a collection of essays written over the past 25 years mostly about topics of general interest. The first 75 pages is about the drafting of the U.S. Constitution in 1787 and why that remarkable process and its end result are still so important to us today. The rest of the book ranges over a wide variety of topics, from our precious civil liberties to profiles of some famous judges and lawyers to current controversies. It should, I hope, appeal to everyone.

AM: Phillip Lopate has said that the essay is a “diverting” type of literature and that its hallmark is intimacy. You call the essay “intimate, informal and reflective, as if you are sitting at home in your living room or dining room and having a pleasant, sometimes provocative, sometimes stimulating, but always, one hopes, insightful and enlightening conversation.” I agree. The essay is my favorite genre because it’s the genre of the person. You can’t know a person until you’ve met the persona he creates in his essays—and if you don’t write essays, you may not know yourself. Who are your favorite essayists, and what is it about their essays that you find compelling?

DJK: My favorite essayists are the obvious ones: Montaigne, Francis Bacon, Addison & Steele, Hazlitt, Lamb, Orwell, Mencken, Macaulay, Emerson, V.S. Pitchett, E.B. White, Lewis Thomas, George Will, Virginia Woolf, Edmund Wilson, and Joseph Wood Krutch. My favorite living essayists are Lopate and Joseph Epstein, the former editor of The American Scholar magazine. All these writers make their essays compelling by their clarity of thought and uniqueness of expression and their ability to communicate original, stimulating ideas, making us see familiar things in a new light. Epstein, for example, can write on literary personalities as well as personal topics we all think we know about but do not really. Everyone in my pantheon of great essayists is a superb writer with a distinctive and memorable style.

AM: I recently interviewed James Elkins, a law professor at West Virginia University, here on this site, and he talked about lawyer poets and said that “our iconic images of lawyer and of poet are put to the test when we think about one person writing poems and practicing law.” You have something to say about this seeming double life. “Writing,” you say, is “part of my double life. I have a life other than the lawyer’s life I lead on the surface. The two sides—law and writing—reinforce and complement each other.” I’ve heard the phrase “the two worlds” problem used to describe the lawyer who is also a writer. But this doesn’t seem to be a problem for you, does it?

DJK: A lawyer IS a writer. Writing is most of what a lawyer does. To be a good lawyer, one needs to be a good writer. Verbal facility, sensibility to language, and lucid thinking are prerequisites for both. A legal brief and a piece of expository writing have much in common. Both have a point to make to persuade the reader. Both rely on effectively marshaling evidence to demonstrate the correctness of a particular perspective. The topics may differ, but the skill and technique are similar. The problem facing the lawyer-writer is more one of time and energy and desire than anything else. Law is a demanding profession, which means taking time off to do anything else cuts into one’s otherwise free moments. But if you want to write, you make the time.

AM: I’m curious, when did your love of literature begin? Did you have an “aha!” moment, or did the love evolve over time?

DJK: I cannot recall ever not loving literature. My paternal grandfather was a printer at Scribner’s and when I was a little boy he gave me four books by Robert Louis Stevenson that my grandfather had himself set in type in 1907. I gave Treasure Island to my son and Kidnapped to my daughter, and still have the other precious two volumes on my shelves.

I remember my father taking me as a youngster to the Public Library at Fifth Avenue and 42nd Street to get my first library card. In those days, the main building had a circulation department, and my father’s choice for my first library book was, of course, Tom Sawyer, a good choice for a ten-year old boy.

I remember as a teenager reading as much as I could in addition to books assigned in school. There were nights spent, in classic fashion, with a flashlight under the covers after bed time.

Inspiring teachers helped too.

AM: You’ve written a lot on Shakespeare. How did your fascination with him come about?

DJK: Like most people, I first met Shakespeare in high school English classes. Luckily for me, around the same time New York had a summer program of free Shakespeare in Central Park, which continues to this day. Starting in the summer of my junior year in high school — 1963 — I began to see two of Shakespeare’s plays every summer. It was at one of those performances — Measure for Measure in 1985 — that the passion grabbed me. I was 37 years old and had been practicing law for 12 years. As I sat watching Measure for Measure, I realized for the first time how much the play was about law, and that recognition — the “fascination” you refer to — set me off on a project that would last years. First, I wrote a short essay about Measure for Measure for the New York Law Journal, our daily legal newspaper. Then, months later, I saw a production of The Merchant of Venice and wrote another essay. From there, one thing led to another, and before long, I had the makings of a book.

I reread the plays I had read as a student and read many others for the first time. Then I read as much as I could find about Shakespeare and the law. The result was my 1994 book called Kill All The Lawyers? Shakespeare’s Legal Appeal.

I am still fascinated by Shakespeare. Each time I read or see one of his great plays, I get something new out of it.

AM: Many essays in Loose Sallies concern politics, law, government, and current events. You discuss the Founders, Holmes, Bill Clinton, Hugo Black, Steve Jobs, Ayn Rand—all sorts of people and even some decisions of the U.S. Supreme Court. You manage to do so without coming across as overtly political, polemical, or tendentious. How and why?

DJK: It is a question of style and goal. Every one of the essays has a thesis, some of which may even be controversial. The idea is to persuade your reader to accept your thesis, and that requires care and sensitivity, logic and demonstration, not name-calling or verbal table-pounding. If I am “overtly political, polemical or tendentious,” I will probably not convince anyone who does not already agree with me. A writer has to be smoother and subtler. We live in a country right now riven by political and cultural partisanship. Public controversy today between “red” and “blue” is almost always shrill. A reader tires of it; it becomes almost an assault on our sensibilities. To reach people’s hearts and minds, you have to credit both sides of an issue but explain patiently and show convincingly why you think one side is more correct than another. I am not running for public office so I have no “base” to appeal to. But I can at least try to keep the tone of the debates I engage in civil and pleasant.

AM: Do you consider the essays on these topics literary essays?

DJK:Most of the essays in Loose Sallies are not about so-called “literary” topics. True, one is about the literary style of Supreme Court opinions, and two discuss Justice Holmes’s opinion-writing style. But they are exceptions. So I do not think the essays for the most part are “literary” in that narrow sense. Nor do I think they are “literary” by way of being precious or mannered. I genuinely hope, however, that they are “literary” in the sense of being clear, crisp, well-written statements on a variety of topics of interest to all Americans today.

AM: Thank you for taking the time to do this interview. Loose Sallies has been enjoyable for me. I keep it on my desk in the office so that, when I need a ten-minute break, I can open it and read an essay. I slowly made my way through the entire book in this manner: a break here, a break there, and then, one day, I was finished. I really appreciate all that you have done not just for the law, but for arts and literature. It’s nice to know there are lawyers out there like you.

Paul H. Fry’s “The New Criticism and Other Western Formalisms”

In Academia, American History, American Literature, Arts & Letters, Books, Communication, History, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Poetry, Rhetoric, Scholarship, The Academy, Western Civilization, Western Philosophy, Writing on May 28, 2014 at 8:45 am

Below is the sixth installment in the lecture series on literary theory and criticism by Paul H. Fry.  The three two lectures are here, here, here, here, and here.

Outposts of Culture: Gerald Russello Reviews Jason Harding’s The Criterion

In Academia, Arts & Letters, Book Reviews, Books, Britain, British Literature, Communication, Essays, History, Humanities, Literary Theory & Criticism, Literature, Scholarship, Writing on April 2, 2014 at 8:45 am
Gerald Russello
 
Gerald Russello practices law in New York and edits The University Bookman. He is the author of The Postmodern Imagination of Russell Kirk (University of Missouri Press, 2007).  His articles, essays, and reviews have appeared in The National Review, The New CriterionCrisis Magazine, The American Conservative, Chronicles, The Imaginative Conservative, The American Spectator, City Journal, The Intercollegiate Review, Modern Age, First Things, and many other publications.
 
This review originally appeared here in The University Bookman in 2003.  It is republished here with the express permission of The University Bookman.  The book under review is Jason Harding’s The Criterion: Cultural Politics and Periodical Networks in Inter-War Britain (New York, New York: Oxford University Press, 2002).

 

In the final issue of the Criterion, which appeared in January 1939, T. S. Eliot wrote that “continuity of culture” was the primary responsibility of “the small and obscure papers and reviews.” It was they that would “keep critical thought alive” amidst troubled times. And so it has been, for a century and more. The vitality of the “little magazines” is one of the strongest indicators of a culture’s intellectual level. These journals, typically of small circulation and little revenue, serve a crucial function as the medium for the transmission of ideas among scholars, elites, and the larger population. it is perhaps a sign of our times that so many of our Masters of the Universe choose to endow business schools or fund independent films rather than to support the written word. Many of the journals themselves, unfortunately, have become so obscure and inward-minded that they may no longer be worth the trouble.

The British aptitude for starting small associations of like-minded folk was well expressed by the profusion of little magazines, especially in the nineteenth and early twentieth centuries. This proclivity was to bear further fruit across the Atlantic, where Americans followed the British model. Up until the Second World War, America had a thriving culture of little magazines that tradition survives, in a somewhat anemic form, in the independent so-called “zines” that clutter the bookshops of progressive enclaves like Manhattan or Berkeley. There have been two recent examples of the differing fates of such journals here in the United States. Lingua Franca was an energetic journal devoted to academic life, which it chronicled in a sharp, intelligent style. After less than four years of publication it went bankrupt and ceased publication, only to be partially revived in an Internet incarnation after being acquired by the Chronicle of Higher Education. On the other end of the scale is Poetry, which recently received a gift of $100 million from a philanthropist whose own poems it had rejected. The gift instantly made the small journal one of the best-endowed cultural institutions in the country.

The Criterion was perhaps the most important of the journals of the last century. The first issue, which appeared in October 1922 and contained (without epigraph or notes) Eliot’s poem The Waste Land, changed Western intellectual life, and it continues to define what an intellectual journal should be. However, study of the Criterion has been subsumed by the focus on Eliot’s development as a poet and thinker. The larger cultural importance of the journal has received insufficient attention. That has now changed. From such an improbable place as the department of foreign languages and literature in Feng Chia University in Taiwan, where Jason Harding is assistant director, comes The Criterion: Cultural Politics and Periodical Networks in Inter-War Britain. It is a work of polished scholarship on the role of the Criterion in British intellectual life.

Harding divides his analysis into three parts. Part I, “Cultural Networks,” deals with the Criterion as one of a number of small intellectual periodicals, such as the Adelphi and New Verse, which appeared in this period. The second section, titled “The Politics of Book Reviewing,” focuses on a number of regular Criterion contributors, and their relationship with, and treatment by, Eliot as their editor. The chapters include studies of almost forgotten figures like Bonamy Dobrée and Montgomery Belgion as well as more well-known figures such as John Maynard Keynes and the difficult but brilliant Ezra Pound. Harding shows that, while Eliot directed and organized every aspect of the journal, each of the contributors played their own part in establishing the Criterion’s preeminent position.

The final section, “Cultural Politics,” focuses on the purpose of the Criterion as Eliot came to see it in the dark days of the 1930s. As the influence of the journal increased, it became known not only as a showcase of modernism but also as a conduit for what Eliot called “the mind of all Europe” and a defense of the West. The author discusses Eliot’s attempts to persuade major Continental intellectual figures such as Ernst Robert Curtius to contribute to the journal, and his efforts consistently to review foreign periodicals for his British readership.

Harding presents a complex cultural picture in service of his goal of establishing the Criterion as part of “an ongoing cultural conversation, most immediately a dialogue with a shifting set of interlocking periodical structures and networks.” Eliot, as an editor, had to deal not only with his rival journals, but also with his sensitive patron, Lady Rothermere. There were also those occasionally truculent contributors, such as Wyndham Lewis or D. H. Lawrence, who sometimes abandoned the Criterion for other, better-paying reviews.

Among a number of fascinating episodes, Harding recounts here the controversy over classicism and romanticism between Eliot and John Middleton Murry, founder of the Adelphi. Murry launched the first salvo in 1923, claiming that there was no tradition of classicism in England. Although not the subject of the attack, Eliot felt obliged to respond and published in the Criterion the following month his famous defense of classicism, “The Function of Criticism.” Murry and Eliot were to have a limited rematch at the end of the decade over the humanism of Irving Babbitt. Other scholars have examined the substantive merits of their respective positions. Harding’s purpose is rather to show that the literary rivalries among serious journals spurred Eliot, as a writer and editor, to set out his critical and literary vision. They necessarily shaped the kind of journal Eliot was creating.

In his final sections, Harding examines the evidence for Eliot’s supposed anti-Semitic or fascist sympathies and finds them wanting. Under Eliot’s editorship, several writers documented the rise of Nazism in Germany, and the final issue contained a condemnation of Nazi racial theories. Harding concludes that: “Given the Criterion’s record on these matters, it is remarkable that recent critics have stigmatized the journal by suggesting that Eliot was sympathetic to the aims and methods of Nazism.” Harding realizes that Eliot’s conversion to Anglicanism and his efforts to “stitch together into some kind of unity the Latin-Christian elements of the otherwise diverse cultures of Western Europe” meant his rejection of the Nazi regime. And even though Eliot was somewhat sympathetic to fascism, that sympathy, as Harding demonstrates, was attenuated and did not cause him to suppress other viewpoints in the Criterion.

Drawing on a wealth of previously unexamined materials and private collections, Harding expands upon our knowledge of Eliot as a major twentieth-century figure. His careful research adds a new dimension not only to Eliot as a thinker and editor, but also to the entire period of British literary journalism.

Terms of Use, Privacy Policy, and Acceptable Use Policy: What are the Differences?

In Communication, Information Design, Law, Property, Rhetoric & Communication on January 8, 2014 at 8:45 am

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“Terms of use,” also called “terms of service,” are agreements between website owners and users of the website.  By consenting to the “terms of use,” a user manifests his or her assent to certain conditions in order to access the website; in some cases, accessing a website will itself constitute acquiescence to the restrictions and conditions explained in the “terms of use.” “Terms of use” may explain what will happen to someone who hacks into the website, may divest users of certain legal rights as a condition for use, or may detail the consequences of behaving or transacting in certain ways on the website. Social networks such as Facebook are notorious for frequently modifying their “terms of use,” and “terms of use” are often subject to criticism for their allegedly unfair contracting and bargaining practices and for concealing or obscuring information in shrinkwraps, browsewraps, and clickwraps.

A privacy policy is a disclosure regarding the information a website collects and how that information is used by the website owner.  Not all websites have privacy policies, but privacy policies are required of websites directed at children.  Websites containing health data for patients or banking and financial data for customers are also required to have and display privacy policies.  A privacy policy discloses what personal information is gathered by the website and states whether, for instance, a website uses cookies or targeted advertising, and whether the data collected by the website is shared with third parties.

Unlike “terms of use” or privacy policies, acceptable use policies generally are between employers and employees and govern the ways in which employees and other authorized users handle websites or networks of the employer.  The laws governing acceptable use policies are strict. For instance, acceptable use policies must be clear and made known to employees; they must also explain what sanctions are appropriate or applicable if the acceptable use policy is violated.

Seven Points of Grammar

In Advocacy, Arts & Letters, Communication, Essays, Law, Legal Education & Pedagogy, Legal Research & Writing, Teaching, Writing on November 20, 2013 at 8:45 am

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An earlier version of this piece appeared here in The Alabama Lawyer.

As a staff attorney to Chief Justice Roy S. Moore, I read several briefs and petitions each day.  I have noticed that certain grammatical errors are systemic among attorneys.  Some errors are excusable; others aren’t.  Here are seven errors that are inexcusable.

1.    “Whoever” and “Whomever”

Many attorneys do not know the difference between whoever and whomever.  Test your knowledge by answering these questions:

Which of the following sentences is correct?

A.  Give the document to whoever requests it.

B.  Give the document to whomever requests it.

Which of the following sentences is correct?

A.  Whoever arrives first will get a copy.

B.  Whomever arrives first will get a copy.

If you answered A to both questions, you were correct.  Here is a trick to help determine whether to use whoever or whomever:

STEP ONE:  Imagine a blank space where you wish to use whoever or whomever.

Example: Give the document to ______ requests it.

STEP TWO:  Split the blank space to create two sentences; then fill in the blanks with the pronouns he or him.

Example: Give the document to himHe requests it.

STEP THREE:  Whenever you fill in the blank space with a him/he combination, use whoever.  As we have already seen, the previous sentence should read, “Give it to whoever requests it.”  Whenever you fill in the blank space with a him/him combination, use whomever.

Him/He = whoever

Him/Him = whomever

Here are more examples:

STEP ONE:           You should hire ______ Pete recommends.

STEP TWO:          You should hire him.  Pete recommends him.

STEP THREE:      You should hire whomever Pete recommends.

 

STEP ONE:            This letter is to ______ wrote that brief.

STEP TWO:           This letter is to himHe wrote that brief.

STEP THREE:       This letter is to whoever wrote that brief.

 

STEP ONE:           The prize is for _____ wins the contest.

STEP TWO:          The prize is for himHe wins the contest.

STEP THREE:      The prize is for whoever wins the contest.

 

STEP ONE:            The lawyer made a good impression on ______ he met.

STEP TWO:           The lawyer made a good impression on him.  He met him.

STEP THREE:       The lawyer made a good impression on whomever he met.

 

STEP ONE:            The lawyer tried to make a good impression on ______ was there.

STEP TWO:           The lawyer tried to make a good impression on himHe was there.

STEP THREE:       The lawyer tried to make a good impression on whoever was there.

2.    “Who” and “Whom”

The difference between who and whom has fallen out of favor in common speech, but retains its importance in formal writing.  Use who if the pronoun is a subject or subject complement in a clause.  Use whom if the pronoun is an object in a clause.  A trick to help determine whether to employ who or whom is to rephrase the sentence using a personal pronoun such as he or him.  Consider the following:

A.      Proper: Whom did you meet?  (Rephrase: I met him.)

           Him is objective, so whom is proper.

Improper:  Who did you meet?

B.       Proper: Who do you think murdered the victim?  (Rephrase: I think he murdered the victim.)

           He is subjective, so who is proper.

Improper: Whom do you think murdered the victim?

C.        Proper: Who was supposed to finish that brief last week?  (Rephrase: He was supposed to finish that brief last week.)

            He is subjective, so who is proper.

Improper: Whom was supposed to finish that brief last week?

D.        Proper:  Justice Brown is the man for whom I voted.  (Rephrase: I voted for him.)

            Him is objective, so whom is proper.

Improper:  Justice Brown is the man who I voted for.

3.    “As Such”

I used to practice at a mid-sized law firm in Atlanta.  Tasked with reviewing the writing of all associate attorneys at the firm, one partner became hardheaded about two words: “as such.”  He always struck through the word “therefore” and replaced it with the words “as such.”  He did this so often that I finally decided to correct him. I was tired of watching him substitute a grammatical error for a sound construction.

When I spoke up, he got defensive.  “As such means ‘therefore,’” he said.

He was wrong.

The Random House Dictionary (2013) describes “as such” as an “idiom” that means “as being what is indicated” or “in that capacity.”  In other words, after you have described something, you use the phrase “as such” to refer back to that something “as described.”  Here are examples:

  1. He is the president of the university; as such, he is responsible for allocating funds to each department.
  2. This is a matter of law; as such, it is subject to de novo review.
  3. Theft is a crime; treat it as such.

In these examples, “as such” properly refers back to a definite antecedent.

“As such” appears regularly in legal writing.  Whenever I see this construction misused, I think about that partner in Atlanta and become agitated.

“As such” is a simple construction; as such, it entails a simple application.  Don’t be shy about calling out your colleagues when you see them misuse this construction, even if you are a “lowly” associate.  You might just save them—and the partners—from embarrassment.

4.    The Colon

Although many rules govern the use of colons, I want to focus on this one: Never place a colon between a preposition and its object or between a verb and its complement.  Likewise, never place a colon after such words or phrases as especially, including, or such as.

These sentences violate this rule:

  1. He was convicted of several crimes, including: first-degree robbery, arson, third-degree burglary, and second-degree forgery.
  2. Some affirmative defenses are: statute of frauds, waiver, statute of limitations, and contributory negligence.
  3. Most restrictive covenants have provisions about the developer or declarant such as: “Property Subject to the Declaration,” “Easements,” “Assessments,” and “Membership.”
  4. She enjoys the sites, especially: the courthouse, the town square, and the memorial.

No colon is necessary in these sentences.

5.    Subject-Verb Agreement: “Neither,” “Nor,” “Either,” “Each,” and “Number”

Attorneys generally understand subject-verb agreement.  A verb must agree with its subject in number.  That is, a singular subject must take a singular verb; a plural subject must take a plural verb.  The following words, however, give attorneys trouble: neither, nor, either, each, and number.  What follows should clarify how to make these nouns agree with a verb.

Neither Mel’s clients nor his associate ___ going to the meeting tomorrow.

When you pair neither and nor as conjunctions linking two nouns, choose the noun closest to the verb and let that noun determine whether you use is or are.  In the example above, associate is closest to the verb.  Associate is singular, so the proper verb is is.

Neither of the partners ___ attending the meeting.

Neither is singular and the subject of the sentence.  It requires a singular verb: is.  The verb is not are if the plural noun (partners) is not the subject.  Partners is not the subject; it is part of a prepositional phrase.

___ either of you available to take his deposition tomorrow?

Either is singular and the subject of the sentence.  It requires a singular verb: is.  The verb is not are if the plural noun (you) is not the subject.  You is not the subject; it is part of a prepositional phrase.

Each of you ___ contributed valuable insights to the case.

The pronoun each is the subject of the sentence.  Each is singular and requires a singular verb: has.  Many attorneys will write have because they think that each is plural or that the verb must modify the plural noun youYou is part of a prepositional phrase and cannot serve as the subject of the sentence.

The number of thefts ___ increasing.

Number can be singular or plural depending on the context.  Here, number is used with the definite article the.  Therefore, the singular verb (is) applies.  In most cases, if number is used with the indefinite article a, then the plural verb (are) applies.

6.    The Possessive Form of Nouns Ending in “S”

My sixth grade teacher instructed me never to add ’s after a singular noun ending with an s or s sound.  She was wrong.  The trick to nouns ending with an s or an s sound is that no trick exists: the rule is the same for these nouns as for all other nouns (with a few notable exceptions, such as the words “its” and “yours”).  To form a singular possessive, add ’s to the singular noun.  To form a plural possessive, add an apostrophe to the plural noun.  Here are some examples:

Singular Noun

Mr. Jones               Mr. Jones’s

Mrs. Burnes           Mrs. Burnes’s

The boss                The boss’s

Plural Noun

The Joneses           The Joneses’

The Burnses           The Burnses’

The bosses             The bosses’

7.    “Only”

Only is one of the most regularly used words in the English language.  It is also one of the most regularly misused modifiers.  Below are examples of how attorneys misuse only in petitions and briefs.  I have altered the language in these examples to conceal the identity of the authors.

A.  “The appellant only references the reason why the appellee did not seek counseling.”

This sentence implies that the appellant does nothing—nothing at all—but reference the reason why the appellee did not seek counseling.  The appellant does not eat, sleep, think, talk, love, feel, or breathe.  The only thing he does is reference the reasons why the appellant did not seek counseling.  He must be a robot.  The author of this sentence intended to say the following: “The appellant references only the reason why the appellee did not seek counseling.”  This revised sentence means that, of all the reasons from which he could have chosen, the appellant referenced only one.  The appellant could have referenced other reasons, but did not.

B.  “He only robbed two people.”

This example suggests that “he” has never done anything—anything at all—but rob two people.  If all you have ever done is rob two people, your entire existence has been a crime.  The author of this sentence intended to say the following: “He robbed only two people.”  This revised statement should cause one to ask, “That’s it?  Just two people?”

C.  “The agency granted the application on the condition that the hospital only will move 300 beds.”

A hospital that does nothing but move 300 beds will not help sick patients.  The author of this sentence should have written, “The agency granted the application on the condition that the hospital will move only three-hundred beds.”  In this revised sentence, “only” modifies “three-hundred beds” rather than the verb “will move.”

Attorneys are educated; we tend to avoid using language if we aren’t certain about its grammatical soundness.  But something about the foregoing rules baffles us.

The rules, though, are easy.  What’s difficult is overcoming habits and industry-wide error.  If you aren’t certain about a rule, don’t just ask your colleagues for the solution.  And don’t take your colleagues’ suggestions at face value.  Consult a good, reliable grammar book.  Doing so will improve your writing and possibly raise the quality of writing among the entire profession.

Is Hacking the Future of Scholarship?

In Arts & Letters, Communication, Humanities, Information Design, Law, Legal Research & Writing, Scholarship, Writing on October 16, 2013 at 7:45 am

Allen 2

This article appeared here in Pacific Standard.

Most attorneys are familiar with e-discovery, a method for obtaining computer and electronic information during litigation. E-discovery has been around a long time. It has grown more complex and controversial, however, with the rise of new technologies and the growing awareness that just about anything you do online or with your devices can be made available to the public. Emails, search histories, voicemails, instant messages, text messages, call history, music playlists, private Facebook conversations (not just wall posts)—if relevant to a lawsuit, these and other latent evidence, for better or worse, can be exposed, even if you think they’ve been hidden or discarded.

Anyone who has conducted or been involved with e-discovery realizes how much personal, privileged, and confidential information is stored on our devices. When you “delete” files and documents from your computer, they do not go away. They remain embedded in the hard drive; they may become difficult to find, but they’re there. Odds are, someone can access them. Even encrypted files can be traced back to the very encryption keys that created them.

E-discovery has been used to uncover registries and cache data showing that murderers had been planning their crimes, spouses had been cheating, perverts had been downloading illegal images, and employees had been stealing or compromising sensitive company data or destroying intellectual property. Computer forensics were even used to reveal medical documents from Dr. Conrad Murray’s computer during the so-called “Michael Jackson death trial.”

Computer forensics can teach you a lot about a person: the websites he visits, the people he chats with, the rough drafts he abandons, the videos he watches, the advertisements he clicks, the magazines he reads, the news networks he prefers, the places he shops, the profiles he views, the songs he listens to, and so on. It is fair to say that given a laptop hard drive, a forensic expert could nearly piece together an individual’s personality and perhaps come to know more about that person—secret fetishes, guilty pleasures, and criminal activities—than his friends and family do.

In light of this potential access to people’s most private activities, one wonders how long it will be until academics turn to computer forensics for research purposes. This is already being done in scientific and technology fields, which is not surprising because the subject matter is the machine and not the human, but imagine what it would mean for the humanities? If Jefferson had used a computer, perhaps we would know the details of his relationship with Sally Hemings. If we could get ahold of Shakespeare’s iPad, we could learn whether he wrote all those plays by himself. By analyzing da Vinci’s browsing history, we might know which images he studied and which people he interacted with before and during his work on the Mona Lisa—and thus might discover her identity.

There are, of course, government safeguards in place to prevent the abuse of, and unauthorized access to, computer and electronic data: the Wiretap Act, the Pen Registers and Trap and Trace Devices Statute, and the Stored Wired and Electronic Communication Act come to mind. Not just anyone can access everything on another person’s computer, at least not without some form of authorization. But what if researchers could obtain authorization to mine computer and electronic data for the personal and sensitive information of historical figures? What if computer forensics could be used in controlled settings and with the consent of the individual whose electronic data are being analyzed?

Consent, to me, is crucial: It is not controversial to turn up information on a person if he voluntarily authorized you to go snooping, never mind that you might turn up something he did not expect you to find. But under what circumstances could computer forensics be employed on a non-consensual basis? And what sort of integrity does computer or electronic information require and deserve? Is extracting data from a person’s laptop akin to drilling through a precious fresco to search for lost paintings, to excavating tombs for evidence that might challenge the foundations of organized religion and modern civilization, or to exhuming the bodies of dead presidents? Surely not. But why not?

We have been combing through letters by our dead predecessors for some time. Even these, however, were meant for transmission and had, to that end, intended audiences. E-discovery, by contrast, provides access to things never meant to be received, let alone preserved or recorded. It is the tool that comes closest to revealing what an individual actually thinks, not just what he says he thinks, or for that matter, how and why he says he thinks it. Imagine retracing the Internet browsing history of President Obama, Billy Graham, Kenneth Branagh, Martha Nussbaum, Salmon Rushdie, Nancy Pelosi, Richard Dawkins, Toni Morrison, Ai Weiwei, or Harold Bloom. Imagine reading the private emails of Bruno Latour, Ron Paul, Pope Francis, Noam Chomsky, Lady Gaga, Roger Scruton, Paul Krugman, Justice Scalia, or Queen Elizabeth II. What would you find out about your favorite novelists, poets, musicians, politicians, theologians, academics, actors, pastors, judges, and playwrights if you could expose what they did when no one else was around, when no audience was anticipated, or when they believed that the details of their activity were limited to their person?

This is another reason why computer and electronic data mining is not like sifting through the notes and letters of a deceased person: having written the notes and letters, a person is aware of their content and can, before death, destroy or revise what might appear unseemly or counter to the legacy he wants to promote. Computer and electronic data, however, contain information that the person probably doesn’t know exists.

More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known. We should embrace—although we don’t have to celebrate—the technologies that enable us to produce this wealth of knowledge previously unattainable to scholars, even if they mean, in the end, that our heroes, idols, and mentors are demystified, their flaws and prejudices and conceits brought to light.

The question is, when will we have crossed the line? How much snooping goes too far and breaches standards of decency and respect? It is one thing for a person to leave behind a will that says, in essence, “Here’s my computer. Do what you want with it. Find anything you can and tell your narrative however you wish.” It is quite another thing for a person never to consent to such a search and then to pass away and have his computer scanned for revealing or incriminating data.

It’s hard to say what crosses the line because it’s hard to know where the line should be drawn. As Justice Potter Stewart said of hard-core pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Once scholars begin—and the day is coming—hacking devices to find out more about influential people, the courts and the academic community will be faced with privacy decisions to make. We will have to ask if computer and electronic data are substantially similar to private correspondence such as letters, to balance the need for information with the desire for privacy, to define what information is “private” or “public,” and to honor the requests of those savvy enough to anticipate the consequences of this coming age of research.

Amid this ambiguity, one thing will be certain: Soon we can all join with Princess Margaret in proclaiming, “I have as much privacy as a goldfish in a bowl.” That is good and bad news.

Kenneth Burke’s Constitution: In Brief

In Arts & Letters, Communication, Humanities, Information Design, Literary Theory & Criticism, Philosophy, Rhetoric, Rhetoric & Communication, Semiotics, Western Philosophy on August 8, 2012 at 8:45 am

Allen Mendenhall

Kenneth Burke treats the constitution—or, in some cases, constitutions—as a dialectic, symbolic act that is representative of the tendencies and preferences of communities.  Burke applies the elements of the pentad—act, agency, agent, scene, and purpose—to form what he calls paradigmatic anecdotes for understanding how constitutions apply to and interact with communities.  The pentad, for Burke, is equipment for simplifying complex ideas into understandable categories or anecdotes.  It provides, in that sense, what he calls an “idiom of reduction” for understanding human motives.

Humans are sign-using creatures motivated by different “grammars,” and it is a grammatical move to interpret human action in terms of the pentad.   A constitution is not simply a tangible document—indeed, as Burke points out, there is no written constitution in Britain—but instead represents a symbol of the coordination of individuals that provides them with a calculus for determining not only how to act, but also how to know what motivates action.

Constitutions put forth general types, or principles, that can be considered ideals, and these types, principles, or ideals provide standards or criteria by which individuals in a community aspire to act.  A constitution is therefore more of a symbol of that which coordinates human behavior within a given community than it is a top-down imposition of legislative fiat.  A constitution, in short, is a communicative sign validated and made useful by its ability to induce cooperation among people.

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