The Great Change: Turning Cathy into a Lawyer

My "break" from school finished up on Sunday with a Tower of Power concert. Tower of Power is a 38 year old! band from the Bay Area. A funky, soulful, horn-powered band. I'd come to know them because the 5-piece horn section used to tour with Huey Lewis and the News, but I'd also seen them a few times in their own performances.

It was interesting seeing a concert in Hamburg. Hamburg is a really musically-cultured town. It takes its music seriously. (It is no wonder that the Beatles thrived here.) People jam into standing-room only venues and stand there, attentively, for the whole set. (Whereas I notice that in the US there's always lots of people moving back and forth in the periphery. The audience never really seems to settle down.)

The crowd seemed mostly male, but of varying ages – high school on up. And it was amusing listening to them all sing lines like "Still digging on James Brown" in their German accents... (James Braun?)

(James Brown himself seems really popular in Germany. Every party I've gone to has had lots of his music playing. I don't encounter nearly so much of his music when I'm in the US, although then again, I don't go to so many parties...)

It was a good show, and interesting to see a bunch of Bay Area residents put on a show. There's something about them that was just so familiar. And I don't just mean musically, but visually. Something about the way they comported themselves transported me back to my summer in Oakland. It was a nice flashback.

This week the German 2Ls were all aflutter, putting together their rankings for which law school they'd like to attend next year for their semester abroad. At Bucerius everyone does a semester abroad – it's part of the curriculum, and part of Bucerius's mission to generate globally-aware lawyers.

A few weeks ago they held an open house where the international students studying here could describe their schools, but the 2L's choices weren't just limited to those. There are many, many partner schools around the world for them to choose from.

Not everyone was interested in going to America, and I think that's a good thing. There's more to the world than just the US (though Americans so often forget...). Several were interested in French-speaking schools to hone their language skills, and another of my friends is particularly interested in Asia. In addition to China and Singapore, apparently there's even a school in Bangalore they can attend. (One other reason to go to a non-US school now: many of them would consider pursuing an American LLM at some point, so a non-US school now would broaden their experience.)

What may be a little unfortunate about the selection process, but apparently was what the students themselves requested, is that the system for being assigned your spot is based on class ranking. Which is unfortunate, because it makes students competitive in a way they otherwise wouldn't really need to be. My impression is that grades do matter to some extent in Germany, but to a much lesser degree than in the US. Especially first-year grades. But the students apparently elected to have their choices considered in class rank order, rather than by lottery. I gather it gave them a sense that they could control their destiny, but I wonder to what extent that's actually true.

In any case, students could rank up to 15 schools, and even many of those interested in non-US schools still needed to put some on their lists. (Then, as I understand it, the top ranked student would be assigned his first choice school, then the second-ranked would get his top choice – or if unavailable, his second choice, etc.) I pitched Boston University quite enthusiastically to anyone who would listen (even those just trying to be polite) and particularly to my friends (who also may have been humoring me). But it was sort of funny – during the open house I talked about how great the education is. And people paled: "Um, I was kind of hoping to take it a little easier during my semester abroad. Do people at BU... um, do they ever have fun?" So I had to rethink my pitch...

Which is not to say that the German students are lazy... They DO work very hard for many, many years here. Three years of school, followed by at least a year of exam prep – including Saturday morning practice tests. To want to take things a little easier for one semester would not be unreasonable.

Still, I encouraged them to think about what they could gain from their American educations. Some were particularly interested in the reputation of the schools and wondered how it would be regarded when listed on their C.V.'s. For better or for worse, I showed them the US News and World Report rankings. But I said that there were certain considerations that should trump those numbers:

a) They shouldn't live somewhere they wouldn't want to live. Most of these students are used to cosmopolitan environments. They needed to understand which ones were in locations that could offer them. Although admittedly this is a bit tough to do speculatively. A school like Boston College is easily accessible to Boston, but it's not actually IN Boston. Would the students care about something like this? Perhaps. Would they be able to know where the schools really were? Perhaps not, or at least not without a lot more research than I think they were able to do in the time available. So as best I could, I filled students in on where these schools really are. I do feel their impressions may be skewed by my biases of where I like to live, but I tried to suppress my own preferences and try to match schools up to what I could figure out theirs to be.

b) If there was something they were particularly interested in – like, say, IP law – they should consider a lower-ranked school for the chance to experience classes taught by those esteemed professors.

c) If there is something about a school's particular place or associated opportunities that interested the student it would also overcome a lower ranking. For my Asia-focused friend, for instance, I recommended he list Santa Clara University. It may be third tier, but there is a strong Asian community nearby he can potentially network with. More so than, I would suspect, some of the higher-ranked Midwestern schools.

d) The other aspect I encouraged them to consider (though here, too, I think they lacked the necessary information to do so) was the program available to them at any of these schools. A highly-ranked school that just dumped the students into classes with no support would likely not be a good choice. It is best to choose a school (like I know BU is) that takes its foreign program VERY seriously. Then there are questions about the curriculum available to them. Could they take any courses they wanted? Is there a prescribed program? And which would the student prefer?

e) Sadly, cost is a consideration. It costs a lot more to live in Boston, New York, or DC than Iowa, and that might be a factor in many students' decisions.

I did suggest to several students that if they did study in the US, even if they could take any courses they wanted from the catalog, that they consider taking, if possible, some of the first year courses like in Torts and Contract – something so that they can really learn the doctrinal bases for much of American law.

In the moot court class yesterday I gave a practice oral argument.

My argument bore several deficiencies, mostly having to do with preparation (I'd been so busy trying to sort out the memo that I'd accidentally neglected to focus on a few basic preparatory steps, like actually printing out my argument...) But otherwise I think my argument went well – PARTICULARLY well given these problems. I was cool, calm, collected (or at least much more so than I ever remember being before), and able to clearly and persuasively articulate my position. I also fielded questions from the judges pretty well too. (And given that my argument is not yet fully-fleshed out and complete, it was no small task to be able to gloss over the glaring holes I knew fully well were there.)

I still have things to work on, of course. More eye contact, and I need to punctuate my points better. (Read: answer, then shut up. I seem to fear the silences...) But my greatest triumph is that none of the feedback involved asking me to speak more slowly. Given that EVERY SINGLE* oral presentation in my Copyright and Rhetoric class last year received the feedback that I talked too fast, and given that I know perfectly well that I talk fast and that I LIKE to talk fast, it was quite an accomplishment to not get such feedback this time.

It's not like they weren't paying attention to that facet; my co-counsel was told he talked too fast. But I asked them specifically afterwards, "You didn't think that I talked too fast?"

They said no, and with an expression that queried, "And why ever would you ask?"

I consider it a victory.

* = Actually, in the final presentation my classmates commended me for my vastly slower (and apparently thus improved) diction. So this speed adjustment isn't entirely unprecedented. But if I'd only managed it once it might have seemed an aberration. Twice, it perhaps denotes a trend...

Cedric Manara has a few posts (one in English, and one in French) about domain names that don't quite hold up so well either when pronounced or in other languages.

In the latter he refers to me, because I recounted to him the sad tale of a friend of mine who chose for his professional domain name a combination of his last name and the name of his craft. Which works perfectly well in English, but... um... potentially undermines the positive impression he would like to make in another prominent language...

(Domain name withheld because I really like my friend and I don't want to expose him to teasing. However, if he wants the publicity, I'd be happy to link to him. He really is very good at his profession, and a nice guy to boot...)

Of course, it's not just my friend who has this kind of problem. All sorts of enterprises, large and small, that wish to do business across borders need to be sensitive to these linguistic and cultural nuances. The Internet exacerbates the situation because it makes it so easy to have an international presence, but these problems have arisen before. I remember hearing once the potentially apocryphal tale about how Chevrolet couldn't figure out why sales for the Chevy Nova were so poor in Mexico - until someone pointed out that few people would want a car that was called "It Doesn't Go."

There's a lot of screaming and yelling in the halls today; the 2Ls just found out (or are finding out) where they are going for their semesters abroad. And many seem to be quite happy about it...

I'm happy because word has it four will be going to BU. And at least one of them is a friend of mine.

After playing soccer in Malente, I was approached by the captain of the Bucerius women's soccer team. They wanted to send a team to this year's WHU Eurosport competition, and they asked me to be on it since I was a woman who could play.

The WHU is a business school in Vallendar (on the Rhine, near Koblenz) that annually puts on a weekend-long sports competition. Other business schools from around Europe send teams to participate in soccer (men's and women's), basketball, volleyball, rowing, running relay, and cheerleading compeitions. Bucerius goes even though it's a law school (and it's the only law school that does go) because it's a law school with an emphasis on business. And besides, all the business people are gonna need lawyers to get their business done anyway... Ultimately I think there were teams from seven countries represented (including Germany, Sweden, Netherlands, France, Spain, England) and even more countries if you consider the origins of all the students. For instance, I was not the only international student there: Bucerius itself sent four from two countries, and most other schools seemed to have brought their exchange students as well. Thus everything that weekend was organized in English, as it was the common language that everyone could handle.

At the time I was asked to do this it seemed like a great idea. I've been trying to play as much soccer as possible, and the idea that it could be the basis for travel seemed exciting. Plus this didn't seem like your normal backpacker-sightseeing weekend: what better way to get to know Germany than by doing things that Germans do? If I was lucky enough not to have to experience the country just through museums or tourists traps, it seemed I should jump at the chance. So I did.

However, then I got busy. And grumpy. And a part of me started dreading the weekend. It was going to suck up hours and hours that I couldn't do anything else with, and potentially screw up my sleep schedule for days and days afterwards, thereby compromising any future productivity I really needed to have. Plus everyone was raving about the all-night parties that were going to ensue between days of competition, and I just couldn't see the appeal. Even in my youngest and "wildest" days I wasn't keen on that kind of party. And I think whatever enthusiasm I could muster for it was used up in Malente. True, I did have a nice time there in spite of my hesitations. But it also struck me that perhaps I should quit while I was ahead, since these things have never really been my cup of tea. Crowded, loud, dark, smoky rooms, where you have to shout at the top of your lungs to communicate with increasingly inebriated people? It's not exactly my definition of fun. And the drinking? Unlimited beer and 1 euro cocktails may seem to be quite the bargain, but I can't imagine how much I could possibly enjoy it to make up for how lousy I'd feel the next day, exhausted and hungover.

Still, despite my second thoughts, I couldn't back out of the weekend. I'd already paid, and it wouldn't be fair to my team. So I packed what I could to make the weekend as tolerable as possible (lots of schoolwork and snacks in one bag, and a pillow and blanket in another), and on I went, hoping for the best.

After a long day in school on Thursday, we finally all boarded the bus at 11pm and drove all night to the sports hall in Koblenz. There we got out and staked out an area in the stands to wait for the games to begin. At around 9am they did. And they continued until the evening. Our team wasn't scheduled to play until 6, so we mostly watched the other teams throughout the afternoon and did some passing and shooting drills in the hallways.

The complex was vast. Its playing floor was bigger than a full-court basketball arena, and it was divided by large, heavy curtains into thirds. Soccer took place in one third, basketball in another (played width-wise), and two courts of volleyball were in the third. One side and the ends also had bleachers for the people waiting to play to hang out and watch. Then throughout the day on the mezzanine they offered free food and water. Lunch was a wurst of some kind in a roll with ketchup or mustard, plus there were boxes of chocolate milk, mineral water, smoothies (more or less), fruit, and lots free bags of cookies, crackers, and potato chips. (There were also gift bags filled with things provided by sponsors. Mostly the usual free shampoo samples and such, although there also was a condom...)

All in all it was an incredibly well-run event. Especially when you consider that it was entirely put on by 320 college students. (Fewer, even, because the WHU, like Bucerius, also sends a class of students abroad every fall and the incoming international students weren't expected to be so heavily involved.) Logistics involved registering several hundred participants, overseeing about 5 different locations, scheduling and officiating well over a hundred individual matches a day, feeding all these people, arranging and providing accommodations for them, and then putting on massive parties both evenings. Certainly some things could have gone smoother (e.g., dinner on Friday night was a little underwhelming, and the music they played in the sports hall was a little repetitive (a ClearChannel top-40 station has more variety... if I never hear certain songs ever again it won't be too soon...)) but like the Malente weekend – and even more so here – it was a tremendous example of student-led organizational efficiency.

One of the other distinctive features about the weekend is that for their housing, all the visiting students stayed with WHU students. And this is where I lucked out. Because the guy I was assigned to (some random guy I'd never met before...) turned out to be really nice. He lived in a really nice apartment overlooking the Rhine with two other roommates, and all together they had about 11 people (Germans, Spaniards, Frenchmen, and me...) over to crash on their floors. And all three of the roommates were extremely flexible and hospitable. They left a key under the mat, so anyone who wanted to come back from the parties to sleep could at any time. Which was absolutely fantastic for me, given my aversion to parties, since it provided me with an alternative. Even just knowing that I had a back-up plan - some alternative to having to being awake and uncomfortable late into the night - made me immediately feel much more at ease with the weekend entirely.

But I still had some reservations, and even on Saturday I was still entertaining the possibility of leaving early by train as soon as my team finished with its games. (In the morning my host kindly took me to the Koblenz train station on the way to the sports hall so I could drop off my luggage and get a train schedule in preparation for this escape.) The problem was, even though the housing situation was fine, I really wasn't having any fun. I did go to the party Friday night for a little bit and wasn't completely miserable, but I'd really come to WHU for the sports and so far I'd found them disappointing. For one thing, games were really, really short. Two five-minute halves of all-out sprinting. And we had three substitutes, so I couldn't play the whole 10 minutes anyway (although with the all-out sprinting, that was ok). But additionally, and the bigger problem in my estimation, was that the games were surprisingly dirty.

To some extent, I think many of the girls on the other teams lacked the experience at the game to really understand that obstruction is illegal and be able to avoid doing it. In soccer you are allowed to "play the ball," and there are ways to do so where the opposing player is "inadvertently" blocked from being able to get to it. But you can't just maneuver yourself there on the field, making no play for the ball yourself and just being an obstruction to keep others from getting to it.

But the obstruction was just the tip of the iceberg. The really egregious thing was all the charging in from behind. This is much more forbidden, by both FIFA rules and WHU's own rules, and it's dangerous. Particularly in indoor soccer, when there are walls to contend with. A lot of action occurs along the sides when the ball gets caught between scrambling players and the wall. Elbows shouldn't be flying during this, yet sometimes they do. But what really shouldn't happen is people charging in, body-checking the person with the ball into the wall, and before they can recover THEN making the play for the ball. Such action is illegal, dangerous, and incredibly poor sportsmanship, especially when done purposefully to take advantage of lax referees. And that's exactly what happened with one team in particular. I've never had less fun playing soccer than during that game. Maybe that team would have beaten us anyway, but we were deprived of any satisfaction of getting to play the best we could because we were constantly having to contend with their cheating. It was miserable, and had we not had two more games scheduled for the next day, I might have left then and there.

The next day did go better, even though we lost the first game and found ourselves with a 0-2-1 record. It looked like we might be done for, so the captain gave us a peptalk, telling us that in this last game we should just worry about having fun. And we did. And so we won. And thus we limped into the playoffs to play for third place. And we won that game too. So we, along with the rowing team, both got trophies for Bucerius. Sadly those were all the trophies Bucerius came away with from the weekend, but it was nice to be involved with one of those efforts. I didn't cause us to win it, per se (I didn't score any goals), but I played well enough that I wasn't a liability that caused us to lose either. In the end we played well – perhaps better than even the first and second place teams – because we could play as a team. All the passing drills that we spent hours and hours on really seemed to have paid off.

Once we won our final game, my mood vastly improved. But I still thought I might like to leave early so I could get more work done. To that end, I left the sports hall and caught a bus to the train station. I was lucky, actually: the bus only ran once an hour, and it happened to show up just as I was ready to leave. Otherwise I would not have been able to get to the train station in time for the 5:12 train I really wanted to take.

But then, once at the Hauptbahnhof, I discovered that it would cost me 57 euros to leave. And it just didn't seem worth it. No, I was going to need to stick it out until the very end. But now I was a little stuck: me at my luggage were now at the Koblenz train station, too far from either the sports hall in one direction or the university in the other to walk back to. Fortunately, the nice guy letting me stay in his apartment was willing to come get me and take me back to the sports hall for the final contest and awards. And then while I was waiting I got a chance to walk around the town a bit and be an actual tourist for an hour or so.

Meanwhile, back at the gym, the final contest was the cheerleading. The cheerleading was an interesting event. Our school sent a squad of seven people, who seemed more interested in the dance component than the cheerleading component. But I don't know... they were decent dancers, but their choice of songs and choreography might even make Michael Jackson blush. It just seemed a little... much. But seven people managed to conjure up the energy of squads many times their size. Other schools sent enormous contingents, some with dozens of cheerleaders. ESB definitely had the most spirited group, I think, with everyone showing up to the gym the first day with face paint, balloons, and blasting air horns... And I liked the French cheerleaders who walked in with their chant, "ED! HEC! Tous ensembles! Tous ensembles!" ("ED! HEC! All together! All together!") For their dance numbers they started with a French song, and then went to some song that sounded like a hip-hop version of a square dance song. Which, naturally, they square danced to, more or less...

It should also be mentioned here that their school was, in fact, called EDHEC. Most schools seemed to go by acronyms instead of their actual long-winded multi-word and/or multi-syllabic names. Bucerius stood out as an exception, actually, having been named for an actual person. The French school was really called some lengthy French name that was shortened to EDHEC, the ESB was the European School of Business, and the WHU was short for "Wissenschaftliche Hochschule fuer Unternehmensfuehrung..." As I said, Bucerius stood out...

With the cheerleading concluded they gave out the trophies, and I got to go up with my team to collect ours. Then we all dispersed. I went back with my host to his apartment and spent some time talking to his roommate and the other people who wandered in. Then my host and the roommate left to go to the party, and I went to sleep for several hours. At 3am a taxi came for me, where I paid the exorbitant price of 10 euros for a ride up the hill to the party location. But it's one of those things that, though expensive, was worth every penny, as it would not have been particularly pleasant to walk my tired self and my suitcases up the Rhine valley hills to the party, especially not in the middle of the night when I didn't know where I was going.

The party, as it was the night before, was held in an unused factory. It looked like a factory, with large concrete rooms, trailer offices, and a smokestack. Both nights they bathed it in tinted light and thumping music reverberated from its walls. I went up at 3 because the bus was supposed to board at 3:30. Unfortunately, it was delayed until 4:45, so I pretty much stood around in a parking lot of an hour and a half as inebriated people milled around me. At one point I was hit on by someone so drenched in rum he smelled like a dentist's office. Fortunately, drunk people have really short attention spans so I was able to walk away from him when his attention got diverted, and then he either forgot how madly in love with me he was, or couldn't figure out that I'd moved a few feet away...

Eventually I was joined in my wait for the bus with the other Bucerius students, who were in various stages of intoxication. It was fun to mess with their minds too... At one point a group was standing around with one guy with a bushy hairdo and beard. They called me over and asked me, "Don't you think he looks like Jesus?"

"I don't know. I've never seen Jesus."

"Oh come on. Use your imagination."

"But I don't aspire to see Jesus."

"Is that all you can say?"

"OK, I tell you what. The answer is that he doesn't. I've heard that Jesus was seen in a grilled cheese sandwich, and he doesn't look anything like a grilled cheese sandwich."

This answer seemed to satisfy them, and I can now say I've finally sated my long-standing wish to talk about Jesus in a dark parking lot somewhere in Germany in the middle of the night... Meanwhile, some other students started singing about our long wait for the bus. As we eagerly anticipated our bus to pull in, other normal-sized vehicles came in instead. Every time one did, one of my classmates sang out, "Der bus ist klein. Der bus ist klein. Der bus ist klein, ist viel zu klein." (The bus is small. The bus is small. The bus is small, it's much too small.) Sadly I cannot type out the pleasant sing-song melody he put these lyrics too...

But eventually it came, we boarded, and mostly slept through the night until we at last arrived in Hamburg around 11am. I had somehow managed to survive the weekend and am reasonably well-rested, all things considered.

But I did realize, as we rolled off the freeway and into the city, driving past the glistening Alter lake, that Hamburg was no longer just a strange dot on the map to me; Hamburg was home.

In my French class yesterday:

Me (reading aloud): "La resolution de contrat, lorsque celui-ci est syn... synal... synallagmatique?"

Teacher (in French): "It's the same word as in German."

Me: [sigh]

Actually, the word exists in English too: "synallagmatic." But it's not a word I've ever encountered before, not even in law school. Although interestingly, Dictionary.com says it means "bilateral" in Louisiana civil law. I suspect, however, that it may mean "bilateral" in a distinctively civil law sense. In the common law system of contracts, when we mean bilateral we say "bilateral," but then our whole perception of the directional dynamics of a contractual agreement may be significantly different from those in civil law systems.

Take German law, for instance. German contractual law includes the concept of separation. This means that in any transaction involving the transfer of ownership of some good, there are at least three separate agreements bound up in the transaction:

- A contract for the sale of the good
- A contract to transfer the ownership of the good, and
- A contract to transfer ownership of the money used to pay for the good

These agreements may be thought of as three strands twirled into one rope. And, by analogous extension, as we all understand, cutting one strand will not necessarily cut the whole rope. (This is known as the principle of abstraction.)

To a common law American, this situation may seem strange. If one of those strands gets broken, how can the rest remain? For instance, if the ownership has been transferred, but the money has not been paid, how can the party who received the good still keep it?

The answer normally is that normally he can't. German law allows for such injustices to be resolved. But it does so much differently than in the common law. In Germany, a first possibility for recourse is to have structured the larger transaction so that the (sub)contracts contain conditions precedent. In other words, the contract could be constructed so that the agreement for the transfer of ownership in the good wouldn't become valid until the money was paid. This kind of arrangement can work to both parties' benefit: the payer can make payment conditional on possession of the good, and then the seller can make the transfer of ownership (which is not the same as possession of the good - ownership refers more to the possession of the title of the good) contingent on receipt of the money.

The second possibility for recourse arises when the contingent conditions seem to have been met, but something else still invalidates one of the agreement strands. German law, as a codified civil law system, has lots of specific rules governing contracts' validity. For instance, it has a rule prohibiting exploitive pricing. If such exploitive pricing existed within the agreement, any parts of the agreement incorporating it would become invalid. In a contract like the one described above, this rule would invalidate the contract on the transfer of the money, and also the contract addressing the general agreement to transfer the good. But the rest of the transaction would still be in force, which means that the payer would get his money back, yet he would still have the good since the transfer of ownership contract would still be valid. But then Germany has more still more rules that can address this inequitable situation. For example, under German law a party cannot retain a good that he has no legal right to. Looking back at the contract as a whole we see that the part addressing the agreement to sell the good has become invalidated. Thus there is no longer any legal basis for the buyer to retain the good, and so he will have to give it back.

In US common law the same result would be reached, but the rules governing it are a bit more fluid. Even in a bilateral agreement, where both parties promise to do something, the agreement is still much more unified. If one party fails to perform, then the whole contract fails for breach and the injured party gets to sue for damages to "be made whole again." However, it should be noted that American contracts are not necessarily any more fragile than those in Germany, where the other contractual threads can still hold a fractured agreement together. Common law allows for the notion of "partial breach," where the courts will try to keep the contract from failing completely by simply requiring the breaching party to pay damages to the injured one to compensate it for the breach it caused. So if, for example, one party had agreed to pay an amount for a good, and the good that the seller delivered was not sufficiently the same as the one bargained for, rather than forcing the entire transaction to be voided, with the good to be returned to the seller and the money to the buyer, the court could instead maintain the transaction by simply ordering the seller to compensate the buyer for the difference in value of the goods.

Also, even in a case of exploitative pricing, American courts can achieve a similar just result as the German courts could in invalidating a contract by invoking the doctrine of unconscionability. In such case the courts could declare the contract void, and the transaction would be reset, with the money returned to the buyer and the good to the seller - the same result that German courts would also be able to achieve through the aid of their many statutes.

It may be true that a German statute addressing exploitative pricing, for instance, is much more precise than the fuzzy common law doctrines on unconscionability. In theory, this might mean that German contractual disputes would have more predictable results. But on the other hand, by not being beholden to strictly articulated rules, American courts may have more flexibility in achieving just results.

Still, neither system is so completely foreign to the other. Though each jurisdiction may structure its system in its own way, with its own internal balance, in the end the underlying ability to contract exists equally in both places. While there surely remain differences between how German and American contract disputes might be resolved, I would suspect they would be found mostly along the edges - the fringe cases. In terms of the basic results, however, they are likely much the same.

Evan Schaeffer is bothered by the Lawsuit Reduction Act for a number of reasons. But the question one of his post raised, is why the sanctions only kicked in after the third offense. He wondered if this was the baseball metaphor of "three strikes, you're out" getting out of hand.

I thought otherwise:

It *might* be the baseball analogy run amok, but the baseball example itself manifests a certain perception that three chances may be fair. Which is certainly tenable:

The first strike might have been an accident. A bad pitch call [perhaps], etc. So it wouldn't be fair to punish someone for that.

The second strike is more serious. It is likely that at least one of these two actions (bad swings [etc]...) was truly bad. But, it's not fair to punish without a warning, so consider this second strike designation a warning.

By the third strike you've certainly had adequate warning. So NOW you get punished.

...

Of course, this raises the question of why there are four balls allowed. But I think it can be distinguished by the fact that a walk is vastly less punitive than a strike out. A team is only entitled to 27 at-bats to try to beat the other team. Whereas a pitcher can face as many batters as he'd like... Granted, it's hard to win a game if he faces a lot, and it's definitely hard if his inaccuracy puts a lot of them on base, but a walk is not such a critical event – not such a dramatic loss of opportunity – as a strike-out necessarily is.

How can an intelligent design produce people this stupid?

The Kansas Board of "Education" has decided to intellectually handicap all of its students by teaching them intelligent design theory as an equal alternative to science.

Let's ignore, for the moment, the separation of church and state problem this action raises (as Intelligent Design is really - despite protestations to the contrary - just a watered-down version of "God made the universe, just like it says in Genesis.").

And let's pretend, for the sake of argument, that an intelligent designer DID create the universe.

The problem is, intelligent design theory does not enable people to split the atom, map the genome, build rockets to the moon, cure disease, predict the weather, or make any other sort of innovative discovery.

Even if the very tenets underlying science were all completely wrong and misunderstood, decades, centuries, even millennia's worth of scientific progress is all connected by these premises. And they work together in a systematic, demonstrable, reproducible and extensible way.

Science isn't something you can negotiate. You can discover new things and re-evaluate conclusions, but the basic physics and biology and other scientific building blocks upon which all innovation and discovery rests remain absolute. And it is not likely we have been very wrong about them, as they have facilitated all sorts of other innovation, like splitting the atom, mapping the genome, building rockets to the moon, curing disease, predicting the weather, and making an infinite number of other discoveries.

Teaching an unprovable, speculative belief as an equivalent to science is as futile as trying to negate gravity simply by refusing to believe in it. No amount of faith will release you from the Earth's gravitational pull, no matter how authoritative the textbooks may be in suggesting it. Gravity is a permanent, scientifically-measurable force, and it would serve us well to learn to deal with it as well as the other undeniable scientific constants underpinning our universe.

Particularly if we would like our children to be able to grow up to do things like splitting the atom, mapping the genome, building rockets to the moon, curing disease, predicting the weather, or making any other innovative discoveries. If we want them to do these things, we will need to equip them with the knowledge to do it.

Teaching intelligent design, however, will not give them that knowledge. Instead other countries' children, those who have not been taught that scientific reality is but a political concoction, will be the ones to split the atom, map the genome, build rockets to the moon, cure disease, predict the weather, and make any other sort of innovative discovery. Because ours will be too busy waiting around for God to do it.

Last week Huey Lewis made his Broadway debut in Chicago. My sister had once made a comment about being cynical of this kind of "stunt casting," and I can't say that there's no room for cynicism about it generally. But early word indicates that Huey is doing a good job in his first Broadway performances, and I'm really happy for him.

When I'd first heard that he'd been thinking about taking the part, I was a little concerned. Perhaps some of that was because I thought it might be a reach for him. Yes, he sings and he dances around on stage all the time, but that's not necessarily the same as doing it within a production of such structure.

But I think most of my concern was because I didn't want it to detract from his day job. Part of my admiration for Huey Lewis (and the News) is that his art is true self-expression. He doesn't need to turn himself over to someone else to be a vessel for anyone else's artistry - he's fully capable of expressing his own impressive originality. Acting, on the other hand, and particularly acting in such a famous production, seemed the antithesis of all that. And as a fan of his work, I jealously wanted to guard against his further work from being supplanted by anyone else's. I mean, geez... Actor upon actor has taken on that Chicago role. But there's no one else who can replicate Huey Lewis.

But it is selfish, as his fan, to begrudge him the opportunity to stretch - or simply to take on an experience because it is new. As an inadvertent student of his life, I know that it is germane to his personality to want to try new things. Indeed, I've benefited from that reflex. Had it not existed, there might not have been any Huey Lewis and the News in the first place for me to have enjoyed all these years.

And objectively, I think there's something tremendously admirable about it. It's admirable to be willing and able to try out new experiences to enrich one's life. It's especially admirable to be willing and able to take risks to do it.

It's something for me to keep in mind, and I find it personally reassuring to watch him show me that it can be done.

If you'd like to see how he's doing, he performed a number from the musical on the CBS morning show last week, which can be seen here. (Click on the "Huey Lewis Does Broadway" link.)

Today I had my first session of an Alternative Dispute Resolution course. Unlike the other courses that meet in 2-hour blocks, this one ran pretty much all day and will meet for two more full days in a few weeks. I really like the instructor � he's a mediating practitioner who also can teach. And the class is interesting: about 10 people (half the class) are German. The others are international students, but only 4 of them or so are Americans. There's also students from Turkey, Sweden, Holland, Singapore, China, Australia, Canada...

Meanwhile, last night I gave a presentation on the INCOTERMS FOB designation for my International Commercial Transactions class. Oddly enough, I *think* it was the first powerpoint presentation I've ever had to give. I'm not sure how, but somehow I managed to avoid having to do one during my earlier career. (I attended several, but I wasn't responsible for producing them.) I'm happy to say that I produced a non-boring one. In fact, several classmates commended me for its non-boringness. The content was pretty well organized, and it was also liberally decorated with my own custom illustrations. You'd be amazed how well I can get stick figures to emote...

The other academic things I've been meaning to blog about I'll squeeze in here. One is that the German students here do something called "Studium General." The school puts on various presentations and such, often on Wednesday afternoons, bringing in all sorts of speakers and putting on programs of other topics. They are all optional (and they are all open to the international students, although most are in German) but over the course of the three years of study they are obligated to attend forty of them in order to graduate. It seems like an interesting way to provide diversity in their legal education.

And the one last thing to note is the particular way Germans applaud their professors. In the US, at the end of class we all just get up to leave. We save our applause for the last day of the course, but then usually clap. Whereas in Germany, students always applaud after every class by rapping their knuckles on the desks. This happens every time, without fail, after every course - even the seminars. It seems to be partly a way to show appreciation, and partly a way for everyone to indicate class is over. I've gotten used to it by now - so used to it that I may be inclined to do it when I go back to the US... But it was sort of surprising the first time I heard it. One of these quaint German traditions I guess... But kind of a nice one, I think.

My dad always thought I'd make a good judge. I'm not sure I want to be a judge, but today I became intrigued about being a mediator. To the extent that my dad is correct in thinking I'd be good at the former I think I'd also be good at the latter, but I think I would prefer the latter because then I wouldn't have to be permanently attached to one specific jurisdiction. In fact, I think that's my biggest objection to being a judge: the idea of waking up and going to work in the same exact place for years and years... It frightens me. I think I need to feel able to work in different places. Which is not to say that I want to be as much of a nomad as I've been these past few years for the rest of my life; I would like to settle down (and sometime soon). But I would like to settle into a situation where every so often I would get to go to other places.

But as for the mediation aspect, it does appeal to me. I like the problem solving aspect involved with alternative dispute resolution. I think I'm good at that, and I think I also can view a conflict with the appropriate impartiality the situation requires.

Anyway, this is a nascent thought. Prior to today, I never really thought about pursuing it. But maybe now I will.

There's a nice picture of Huey Lewis reading to children on the Playbill.com website. The surrounding article describes him as "effervescent." I don't usually see articles use that word in describing him, but it seems apt nonetheless.

There's also a site with a flash video clip of three songs from his performance in the Chicago (I think from his first night). I liked it, especially the puppetry number. I particularly liked the look he gave to his Brooke Shields "puppet" when she gave the wrong answer to the "Are you sorry he's dead?" question...

It's interesting watching him in the video and seeing which mannerisms and gestures are organic to him. There's obviously quite a bit different about this performance compared to his normal act - not the least of which is the musical motif of his songs. I do have to admit that I miss the soulfulness his voice normally has, but still he has a nice voice that's obviously capable of singing other styles. And a lot from this performance is the same, like his stage presence and the way he moves about on it. Though much more constrained by the choreography than he usually ever is, his body language - the bits of physicality he's brought to the role - are very much his and much like I've seen him do before.

I had one other thought, watching the video, which is that it feels like I'm looking at an actor backwards. Normally, people see an actor and imagine the person behind it as colored by the role. Here, I already know the person behind the role, and now I'm looking at the acting as tinted by my familiarity with him. I don't think this is bad, per se. (Arguably it might even be good, because I can appreciate the actual effort put into the performance by contrasting it to how I normally know him to be.) But it does feel unusual to have this perspective, so I thought I'd state the observation.

There's an op-ed in today's New York Times about the James Bond franchise. It chronicles some of the stylistic and casting changes that it has experienced over the years, leading to the observation that

"Until now, the Bond family has been loyal to its stars. The shocking thing about Daniel Craig is not that he is fair-haired (like Roger Moore), working class (like Sean Connery), or angry (like Timothy Dalton). The really shocking thing is that a new Bond actor was sought when the current star - Pierce Brosnan - was still a huge success. For the first time in Bond history, a popular star has been fired, and fans are reeling.

Daniel Craig was hired to be a smaller, more realistic James Bond. Could a grittier sort of Bond film have been made with Mr. Brosnan? Of course! The first half of "Die Another Day" (2002) was hard as nails. Could he have played a different kind of spy? Watch "The Tailor of Panama" and your doubts will be erased. Unlike some of his predecessors, who clung to the role too long, Pierce Brosnan has been forced out while still on top..."

The article then concludes, though, that perhaps it will turn out for the best for both Brosnan and Bond, however, to have parted company.

Not being a James Bond fan myself, I can't really comment on any of this. And though I've enjoyed some of Brosnan's work (eg, I agree that his performance in the "Tailor of Panama" was really quite good) I'm not really a big fan of his either.

So that's not why I posted this. I posted it, and in the "Friends, Family, and Other Folks" category, because the author is my step-sister.

Congrats on getting published, Deborah!

These are some pictures from my trip to Suwalki.

A modern, brand new gas stations with the cleanest restrooms I've ever seen anywhere. (Notice, also, the brand new cobblestone sidewalks outside of it. New sidewalks are being installed in a lot of places.)

The train station built in 1895.

The main street, demonstrating the typical architecture along it.

Two sidestreets, one pedestrian.

A traditional wooden house. There were several in the town, this one being across the street from the cemetery.

The cemetery in Suwalki used to be "in" the city, and as the city got larger it got moved "outside" of town. However, it's a short and easy walk from anywhere in the town center to the cemetery.

The cemetery is divided into thirds. One third is the Catholic cemetery. It is jammed full of ornate and well-maintained grave sites. Large marble tombs with flowers and landscaping and polished stones fill the area. It looks like this:

Over the wall is the Orthodox cemetery. It is much more barren, although there are a few clusters of graves. Some are clearly quite old (look in the background towards the left, in the trees) and some are more recent.

Then this is the Jewish cemetery, which is now little more than an open field. Many gravestones were salvaged and formed into a monument, and some still remain in their original places, and there is a Holocaust memorial at the entrance, but this is the Jewish cemetery, which stands out in striking contrast to the others.

Not pictured, because I didn't like how the photos came out: either of the two old churches in the downtown, the town square, or the ancient, abandoned Orthodox church.

Edit 2/20/06: I have uploaded some zip files with the rest of my pictures. Sorry they are huge - I didn't want to lose the picture quality by making them smaller. I divided them up into four categories:

Town Center
Town Outskirts
Cemetery Area
Railroad Area

On the upside, I did rotate them so they shouldn't be upside down anymore...

At a party at school Friday night a student lost a 50 euro note from her pocket. This weekend she put out an email asking if anyone may have found it.

Today someone returned it to her.

Nice place, Bucerius.

I got the grades for my first round of exams back and I was right: I got a %$&^ing B+ on my IP exam.

I guess I should have spent more time copying the damn slides for my notes. But, you know, I was too busy understanding ALL the material and thoroughly explaining it to my classmates. Stupid me...

(For the record, I defied my usual rule about not looking at exam grades because of the allowance here to dispute grades. So it seemed particularly prudent to at least make sure that some gross grading error hadn't occurred. But I reiterate my point that grades are really stupid. And I say that even though I got an A- on my torts exam.)

Edit: I don't mean to sound so critical of the professor. I think she wanted the class to do well and tried to make a test that people could easily do well at. Unfortunately, I think it would have been easier for me if it had been harder. Edit 11/17: And by "harder," I mean in part "covering more substantive areas."

And in any case, my point about the futility of grades still stands. I mean, consider: for my torts A-, it doesn't tell you how hard THAT test was. So how proud of it should I be?

German language class today got disrupted when the first* fluffy white flakes of snow of the season fell on Hamburg. The girls from Hong Kong and Singapore had never seen snow before and kept running to the window to marvel at it.

But it was ok, and provided the occasion for me to learn how to explain to them such things as, "The ground is too warm for it to stick."

* Apparently it already snowed in Boston a month ago. So it seems I got the better deal, escaping the clutches of New England and running off to Hamburg, where they say it's been one of the most pleasant autumns in recent memory.

I just found out when I'll have my exams for spring semester. I have two consecutively right at the very beginning of the exam period, followed by another one day afterward.

As it turns out, the one day off is my birthday. It will probably be more fun than my 30th birthday was, when the day got consumed by an 8-hour Con Law final, but only barely...

Granted, this schedule presumes that I take Crim Pro and not Trial Advocacy, but the only real difference if I took the latter instead would be that I could afford to have more fun on my birthday, what with not having another test until the next week.

On the upside, this schedule would suggest that I could be DONE WITH LAW SCHOOL on May 2, 2006.

Interesting thought to conteplate, although I probably shouldn't be doing this now...

I hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate hate it when my blog goes down.

It makes me feel like I've lost a limb.

Which might sound a little dramatic, but I really do enjoy writing. I miss it palpably when I don't get to do it, especially when there are thoughts zooming around in my head that I really must get out. They bounce around increasingly frenetically, like heated molecules, until I can at last articulate them and release the building pressure. And so I must write, so that there will be room for other thoughts to occur.

Certainly I can write offline, and indeed I do. But there's something like a rush of endorphins I experience when I see my words show up on my blog. I look at them and marvel, "I created that." It's a nice feeling and one I miss when I can't have it.

The previous post was written in response to a recent site outage. It's back up, sort of. Already published pages are viewable, but the backend that lets me post isn't too healthy right now, which may affect further posting and maintenance. Although I hope not...

(Also, I've - hopefully temporarily - turned off trackback. Kind of. New posts won't accept them, although the old ones are still vulnerable to spamming because I can't easily turn them off. Hopefully once I get MoveableType upgraded I'll be able to manage them better and turn them back on, but for now I'm trying to scale back to try to lessen the load on my apparently fragile infrastructure.)

(However comments are still on. So have at me! Join the crowd...)

(Although if the backend isn't working it's gonna take me a while to get them posted. Sorry.)

As part of a continuing series of "Transatlantic Lectures," Bucerius invited Robert Kagan to speak last week. I admit, I was wary of his presentation going into it. He had been described to me as being a Neocon, someone whose world views I often find quite frightening in their obstinate and isolationist arrogance.

But while I think his argument requires rebuttal, I don't think it requires excoriation. He didn't present himself as the kind of Neanderthal conservative who threatens allies with "either you're with us or against us" admonitions, or rushes to rename foodstuffs in protest of those who would resist acquiescing to all of America's wishes. Rather, Kagan impressed me as one of those all-too-rare Americans who understands there is a world out there beyond our borders and actually has made an effort to get to know it. Moreover, he recognized that Americans and Europeans are different, and that there are very good reasons - historical and cultural - for those differences. He didn't therefore rabidly insist that Europeans do things the American way, but at the same time, his argument entailed the proposal that Europe should be more like America in a key way: by becoming an equivalent military power.

Actually, it's not quite clear how equivalent Europe needs to be. It would not make sense, for example, to expect a country like Germany to devote the same percentage of its GDP to its military as the US does to its own, particularly not while it is devoting such sums to the development of the former Eastern Bloc regions. When pressed on this point during the Q&A period, Kagan seemed to accept that as long as Europe actually met the targets for military investment that it has already publicly articulated as being its desired policy, he would be satisfied.

However Kagan's overall point does not rest on quibbling over numbers. It is a much more substantive argument, which boils down to the request that Europe expand militarily.

As he laid it out, I was surprised with how comfortable I personally felt with his proposition. I suspect this is partly due to the reasoning that, to the extent I do believe it is necessary for the military to resolve a crisis, it would be better if the US military didn't have to do it alone. Not only would Europe be able to share in the costs, but the solidarity could also provide more pressure on the opponent, which could potentially speed up the conflict's resolution.

Still, there are a couple of problems with this suggestion. And one very serious one is the historical irony of asking Europe to militarize. Didn't we just get done with making them DE-militarize? Didn't we see how much destruction always follows when Europe has built up its armies?

Indeed, many Germans in the room seemed to find the prospect of regaining military power extremely disquieting. Several essentially asked him, "Did you not see what we did with it the last time?"

Even the most well-meaning American, eager to know and understand his German neighbors, can easily underestimate the revulsion many Germans have with the prospect of being a military power again. Thousands of miles away, Americans are better able to relegate the last world war to history's black and white attic. But the Germans, even those born decades hence, must constantly face the horrible reality that was once wrought in their name just a few generations ago. And many of them desperately said, "Please don't give us the capacity to do it again."

It's a self-aware pleading that must be acknowledged and responded to. Granted, I'm sure there's variation among Germans themselves for how much they share this concern. But I have heard it from several quarters, this tremendous trepidation about once again uniting state and military power.

Perhaps some of this trepidation is partly based on the concern that no country can ever be politically unanimous. I am certain that most Germans would not want to repeat their aggression, but at the same time, the NPD (neo-Nazi) party is still alive and well. There seems to be a fear that combining a little political disaffection with a strong military capability could lead to trouble once again. Whether this fear would actually be realized is of course not certain, but it would be glib for Americans to ignore these concerns just because the militarization might seem to serve our current interests.

On the other hand, Kagan wasn't specifically asking Germany to be a military power. He was asking Europe on the whole to. And he explained that it was this pan-European sense of cooperation and consensus building that made us as Americans feel so comfortable with the prospect of Europe on a whole to being a military power.

And he's right - it is impressive. Who can look at a the European history of war upon war and not be impressed by the maturity, stability, and peacefulness of the modern European project. Were it only that Europe had figured this out years ago... But of course it didn't. This harmony is an incredibly recent development. Europe has spent far more of its history warring that working together. Might it not then be wise to make sure that Europe can sustain this transformation for some period longer than the historical blink of an eye it so far has?

Answering that question brings us to the second objection to Kagan's request. To the extent that European unity is durable, it may well be because of that modern European tendency to resolve conflicts through multilateral agreements rather than military engagements. It is a tendency that Americans do not seem to possess, or at least not on the same scale. From the first coal and steel agreement between Germany and France, which ensured mutual protection from each other by sharing control of the resources either would need to go to war with the other again, necessity dictated that Europe develop this tendency. And, as Kagan acknowledges, it has developed it expertly, providing a sphere of stability adjacent to a world of conflicts.

Still, it seems that Kagan would ignore the true value of this tendency by instead recommending that European return to its more belligerent instincts. Because it's not just that he wants Europe to have a military; naturally he also wants Europe to use it.

The presumption, of course, is that Europe would only use it judiciously. "I trust Europe not to conquer Africa," Kagan noted. But does Europe trust the US not to? Particularly with the Iraq war, Europe has looked on with grave concern at the American tendency to take it upon itself to militarily address conflicts in other parts of the world. Now, perhaps if Europe were a military power itself, it might actually put a check on America's aggressive foreign policy. Not only might the US might act more cautiously if it thought it could be stopped, but because there would be two military forces, if America acted alone, the lack of solidarity could inadvertently send an encouraging message to its opponents and therefore make America's goals that much harder to achieve.

But I think what Europe really wants from the America is much like what America, as articulated by Kagan, wants from Europe: for the other to do things its way. Some European Kagan-equivalent could be making a similar impassioned plea in the US: for the sake of the world, please equip yourself as we have and engage in the world accordingly.

And there was no reason raised by Kagan, nor one that would otherwise be apparent, why the European way not might turn out to be the better one after all.

Edited 11/20 and 11/22.

Ambivalent Imbroglio posted a quote from Mario Savio, of the Berkeley Free Speech Movement:

"There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part; you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!"

I'm reminded by an occasion when I worked at the assignment desk of a Bay Area TV news room. In the evening, someone from Fox News would call us for the run-down (a list of stories we'd be doing). If they thought one sounded interesting, they'd ask us to send it to them so that they could incorporate it into their national newscasts.

The problem with this situation: the two lowest people on the totem pole were having this conversation. Me, and the desk assistant at Fox News in New York. Now, the guy was very nice – I actually met him once – but he was obviously occupying a position where comprehensive historical literacy was not a prerequisite. And for that matter, neither was I.

Yet I remember having one of these run-down listing conversations after Mario Savio had died. The Bay Area station had naturally covered the story, but as I listed it off to him I was surprised when he didn't ask for it. Apparently he'd never heard of Mario Savio and had no idea why his death would have been important. I finally had to say to him, "Trust me, you want this story."

Which illustrates the problem that results when people with gaps in their awareness of the world end up making the decisions about what the world will get to be aware of.

Every time I'm in the Frankfurt airport I hate it more and more.

You'd think that having now been there several times I would have gained from the experience. Sadly it's not the case. The airport is labyrinth and confusing. There are security checks and passport controls everywhere, presenting time consuming bottlenecks to make even the most prompt of passengers late for their flights. Meanwhile boarding gate information is guarded like a trade secret, and luggage carts are prevented from going pretty much anywhere you might like to take them.

Whereas San Francisco Airport is fabulous. Not only do takeoffs and landings reward travelers with breathtaking views of the Bay Area, but the airport itself is sleek, modern, and fairly easy to traverse. OK, so the AirTrain is a little unintuitive and poorly labeled. But once you get the hang on it you can see that it follows a consistent logic. And riding it around gives a terrific birds-eye view of the airport operation.

Much of the airport was redone within just the past few years, so everything is modern and suitable for today's needs. The international terminal itself is brand new and very useable. The main entrance hall is a gigantic room with enough check-in areas for many 747s worth of passengers to all queue up simultaneously (as opposed to, say, the LAX international terminal or the old terminal at Charles De Gaulle, where even two 727s worth of passengers would cause traffic flow to ground to a halt). It's bright and airy, and built on rollers in case of earthquake. If it has any infirmities at all, it's that it might be too big, but it was built anticipating more passengers that the economy currently supports. Of course, when they come back, the airport will be ready.

Posted 11/22, written 11/21.

I'm back. Miss me?

Last Friday I took off for San Francisco. By Monday afternoon I was back in Germany. If you blinked, you might not even have noticed...

It was time for the annual pilgrimage to Big Game. And despite being seriously inconveniently located this year, a pilgrimage is a pilgrimage. Anyway, it's not unprecedented for me to make the commute from Europe – when I lived in France I came back for it then too. Granted, I think I stayed longer in California the last time, but this year I chose to make the trip as short as possible because I want to enjoy my remaining time in Germany.

Still, if anyone knows how to make the most of a compressed trip, it's me. After waking up around 4:30am on Friday, I took the U-Bahn to the Hamburg Airport (it's interesting to see who rides the U-Bahn at that hour... lots of blue collar workers I never see riding it during more conventional commute hours), where I got a 6:40am flight (stand-by is a good thing), and yet barely had enough time to transfer to my next flight in Frankfurt thanks to the understaffed extra security check apparently (so the sign says) required by the United States. (Of course, anal though the US may be about airport security checks, I don't think it's US policy to mandate one x-ray machine for a 747's worth of people. I think the airport came up with that policy on its own.) But I caught the flight, and then about 10 hours later showed up in San Francisco (where I had four voicemails from Orbitz telling me my flight status, which was of minimal use to me since I was already sitting on these planes when they called me to tell me what time they were going to take off, and anyway, it was an American number they were calling and I clearly wasn't there to answer it...).

I decided to rent a car this time so I could dash around the Bay Area doing whatever errands I wanted conveniently. That evening I met a friend for dinner, but unfortunately by then jetlag had started to interfere with the blood supply to my brain, so our conversation became limited at a certain point by my inability to speak English. I did find it odd this weekend, however, to be somewhere where speaking German was neither necessary nor useful. I kept having to suppress my instinct to try. (It was very confusing...)

The next morning I woke up (at 3am, which was not what I planned) and decided to enjoy breakfast at the IHOP attached to my motel, where upon arrival I immediately noticed the neatest handwriting I've ever seen on the framed xerox copy of the failing health inspector's report that was on display near the entrance. I briefly contemplated not eating there as a result, but I was really looking forward to some pancakes. So I rationalized that they'd probably fixed the problems by now, and my breakfast probably wouldn't kill me. Well, maybe the cholesterol would, but not right away.

Then I ran two more errands, including a quick jaunt to Fry's Electronics. If you've ever lived near one you'll know of what I speak. It's geek paradise. Every kind of electronic component and device is available there, somewhere. I decided to buy a plug adapter for a Chinese plug to go into a German outlet. A student here has this setup, but her adapter is broken and keeps splitting in half and falling on the floor. I decided to see if Fry's would sell a new one, and of course it did...

Then, at last, it was time for Big Game. I drove into $tanfurd – sorry, "Stanford" – and parked somewhere in the eucalyptus grove near the stadium. The one nice thing about the game being there is that it's a really good place to tailgate. Much better than Cal, actually, where tailgating really isn't very practical (because parking itself isn't very practical). My friend who's been hosting Big Game tailgates for centuries (give or take) was in his usual place, and it was nice to converge with lots of people I rarely get to see anymore. Now that we've all scattered, it's nice to have this occasion to come back together. This is partly why I'm so religious about it; there's something reassuring about knowing that no matter where I am or what I'm doing, on the last Saturday before Thanksgiving I will ALWAYS be there.

The game itself was fun. Cal had half the seats, it seemed, which is a little unusual because normally the home team has about 2/3rds of it. But last year at Cal, when we were great and Stanford wasn't, we had more like 85% of the seats filled. Which is too bad, in a way, because what fun is a rivalry if the other team doesn't show up?

But once again, Cal was pretty good and Stanford wasn't. We won 27-3.

By then it was pretty late, because the game hadn't started until 4pm, and I was pretty much jetlagged toast once again. I stayed over at my friend's house – whose father is a recently minted lawyer himself (he gave me bar tips!) – and then the next morning drove back to the airport. At 2:15pm Sunday I took off for Germany, and arrived on Monday 10 minutes late for my French class. (I tried to standby on the earlier flight from Frankfurt to Hamburg, but Lufthansa seems to like to channel US Air's stupidity on that front and wouldn't let me change unless I paid a lot of money for "reticketing." So instead I ended up late for class.)

I expect to struggle with jetlag for some time, now that I'm back, but I think it's more of a general sleep deficit than anything else. I was running behind even before I took off for the weekend. But I'm also recharged – I had fun, and I got to enjoy a weekend in the sun. I am therefore the only person in Hamburg right now with any palor...

It is sort of existentially confusing, however. It's hard to believe I went anywhere. It was just a weekend – most of my classmates didn't even notice I was gone. It's hard to believe I was, now that I'm back in my German life. But I was indeed. I just spent two days in California. Air travel is a wonderful thing, letting people live two lives at once.

The joke from the movie "Airplane!": a stewardess is handing out magazines to the passengers. "Would you like something to read?" One passenger responds, "Do you have something light?" To which the stewardess answers, "Well, how about this leaflet? 'Famous Jewish Sports Legends.'"

Cal managed to avoid a quarterback controversy this weekend due to the prescient coaching by Jeff Tedford and a spectacular performance by the third string quarterback Steve Levy. After Aaron Rogers quit school last year to enter the draft, Cal had players compete for the quarterback role. But the starter quickly went out for the season with an injury, and Joe Ayoob took his place. Levy was the back-up behind him. But Ayoob's had some struggles, and Cal's not played well in its last several games. So Tedford announced last week that he'd start Levy instead. He could always pull him if he had problems and put in the more experienced Ayoob, but why not see what Levy could do?

Granted the first half Cal led only 6-3 (botched extra point), but the touchdown was due to a terrific long throw by Levy, who was throwing well after getting over the early game conservativeness. And in the second half Cal exploded, following his lead. He was confident and poised in the huddle, fairly accurate with his throws, and flexible (and fast) enough to rush for his own first downs. He reminded me a lot of Steve Young, actually. But he really played well in all regards, and especially under given his neophyte circumstances. I felt very comfortable watching him, with the quiet confidence that he wasn't going to throw the game away (which, one way or another, many Cal quarterbacks eventually find a way to do).

But then today I read an article in the Chronicle about him and the game. Apparently he was benched a lot when he came to Cal, down in the ranks behind Rogers who was quite good. In order to get playing time, he went in as a linebacker, which is where he got his running instincts from.

Apparently his father's birthday was Saturday, and weeks ago when he asked his dad what he wanted for his birthday, his dad said, "For you to start Big Game." Which is quite the story, when that's exactly what Levy got to do. And he didn't just get to start or play in the game – he won the game. He won Cal the Axe. If there's one game we want our team to win, it's that one.

So all this is a nice story (as someone else wrote, it has a "Rudy" quality to it). But even more: the article also indicated that Levy is (half-)Jewish, and from New Jersey! No wonder I like him!

Tonight at an academic meeting with German students I had an occasion to try German pizza.

It wasn't as good as good New York (or even Boston) pizzaria pizza, but it was vastly better than California pizza. Perhaps proximity to Italy helped?

I told the assembled 19-22 year olds (mostly male) that they should be like their American counterparts and eat it cold for breakfast, but I think they found the prospect unappealing.

Did you know turkeys can fly? It's true:

From the Washington Post 11/21:

"If you can't get a first-class upgrade to Los Angeles tomorrow on United Airlines, it may be because a turkey beat you to the seat.

After President Bush offers his official pardon for this year's Thanksgiving turkey today, the turkey and its handler will be flown first class from Dulles to Los Angeles for a trip to Disneyland. United spokeswoman Robin Urbansky declined to comment on how much the flight would cost the airline, which is in bankruptcy protection, or if the turkey used its frequent-flier miles for the upgrade. United dubbed the flight Turkey One."

I am, of course, proud to say that I am a loyal customer of the airline that even delicious birds turn to for their air travel needs.

Quite frankly I wouldn't mind being on a plane right now, even seated next to a turkey. Today's Thanksgiving, yet out here in Germany it's not likely that I'm going be getting any traditional Thanksgiving fare.

Of course, the airline probably frowns upon eating the other passengers, so I guess it's just as well.

(Although think of the advantages: a decent airplane meal AND more elbow room!)

Title changed 11/25 to be more, um, what's the word... funny?

Law.com relates the story of what appears to me to be an unjust conviction.

A man at a homeless shelter began to have a psychotic episode, "exhibiting bizarre psychotic behavior as he repetitively rocked and chanted the words to himself" and spoke into his walkman. As staff members approached him he then became "increasingly agitated and animated, until he was screaming and yelling at the top of his lungs that he hated white people and wanted to cut their heads off." Such behavior got him kicked out of the shelter and involuntarily committed, but that's not the problem. The problem was that as soon as he was released from the psychiatric hospital the Secret Service arrested him for making death threats against the family of a former president. It seems that during his psychotic episode he kept saying, "I'm gonna put two bullets into her, gonna put two bullets into Hillary Clinton."

The judge, U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania, in a jury-less trial, convicted him. "We are satisfied that the statements made by defendant that he was going to shoot Senator Clinton were true threats," Surrick wrote.

Surrick based his verdict on the fact that these were the words that were spoken, and that people in the shelter clearly were concerned he might be a danger. Notice that they kicked him out, the judge wrote. "They did not want to allow someone who was talking about shooting Hillary Clinton and killing white people to remain at the shelter overnight. They were afraid that he might lose control."

But that does not mean that they thought that he had the specific intent to kill Clinton. It just means they thought he might lose control and be a danger to people in the shelter. Which seems reasonable, given the irrationality of his outbursts.

But because the literal form of those outbursts focused on a family member of a former president, the judge conflated them with the general concern for his behavior and found him guilty of the crime charged. The law required only that the government prove that "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm."

The evidence does not show that the staff thought he had a specific intent to cause bodily harm to anyone, however, much less Clinton. The evidence simply shows that the staff found him to be a man out of control, and thus a general danger as someone behaving irrationally. It was therefore wrong for the judge to substitute the general fear of his psychosis as a measure of his specific intent to cause harm. If he had been in enough control of his faculties to be able to form intent, he also would have been in enough control not to have had the outburst in the first place and get himself kicked out of the shelter. Because he lacked the control for the latter, it should be impossible as a matter of law to find the former.

(The article indicates that Assistant Federal Defender Elizabeth T. Hey made this argument, which the judge then rebuffed. I hope she's able to appeal.)

I'm realizing in talking to other international students that not all of them know what they'll be taking next semester. "Yeah, I didn't get all the classes I wanted; I'll have to figure it out during Add/drop," is a surprisingly common refrain.

Whereas I know exactly what courses I'll be taking*, when they meet, and when I'll be done with them.

I used to think BU was silly for making us sign up for all our courses for the whole year in the summer before. But on retrospect, I'm grateful. We're not completely locked into anything, of course, but it still allows us more certainty than having to scramble around in the fall would. It's the best of both worlds, actually: flexibility and predictability.

* I'm now 98% decided that I will take Criminal Procedure instead of Trial Advocacy. It will certainly be much harder, and it will mean that I'll have FOUR EXAMS(!) at the end of the semester, but I think it will be better in the long run for the breadth of my education.

In Germany (as in much of the world that is not the United States) people often use their cellphones to send text (SMS) messages to others' because they're frequently more cost effective (as well as easier and less disruptive to receive) than phone calls.

Anyway, the other day I sent an SMS to a law student friend asking if he wanted to come to the movies with me. He wrote back, "Thanks, but I cannot go with you for the following two reasons..."

I teased him as being the only person I know who sends SMS messages in IRAC format...

* At Bucerius, unlike at BU and many other American law schools, we cannot take our exams on our laptops. Instead we must write them out in bluebooks, although they're actually not the American-style blue bluebooks but rather custom Bucerius "bluebooks" with nice white, ruled pages and the Bucerius logo on them.

The T9 reference is to the input system that most cellphones have. Because each phone key matches up with several letters, it can take quite a bit of button-pressing to scroll through each choice before you get to the letter you desire to make your word. So the T9 system is a way for you to simply press the number that has your desired letter once (without needing to scroll through the choices), and then the system guesses, based on the sequence of numbers you've pressed, what word you were trying to make. It can make typing into a cellphone much more efficient, once you get used to it.

I updated my blog roll. Nothing too major - a few sites on, a few sites off. It's kind of sad to take sites off for having gone dormant, particularly if they were really good when they were maintained. I did leave one on that may have gone dormant because I'd actually corresponded with the author and perhaps he'll want to come back to it, but I can't chase after all the other sites of people whom I only "knew" through their posts.

Anyway, now that this itch has been scratched, back to studying for exams...

The other day a German classmate was yanking his laptop plug out of the outlet by the cord. I was sitting near the outlet so I mockingly complained that he was liable to smack me in the face with the plug when it finally ripped out.

"Oh yeah," he said, "I should be careful around you. You're American. You would sue."

"Right," I said. "All I've got to do is figure out how to get you into an American court, and you'd be toast."

Well, conflict of laws aside (which would explain how I might be able to get him to an American court, should the need arise for me to actually sue him...), I got to thinking about whether I'd be able to sue him in Germany, should I become injured from his negligent plug-pulling. The question is not academic: I'm going to be tested on it on Tuesday...

Tort law in Germany is not like it is in America, where it is a distinctive area of the law. Instead it is enabled through various statutes spread throughout the German civil code, although mostly in the area of the Law of Obligations, which is where contracts are also regulated.

One section that gives grounds for tortious liability is Sec. 823 BGB par. 1:

Anyone who intentionally or negligently injures life, body, health, freedom, ownership, or any other right of another in a manner contrary to law shall be obliged to compensate the other for the loss arising.

So there is an unlawfulness requirement - an invasion of one of those articulated legal interests, e.g., life, body, health, freedom, etc. - and a requirement for culpability, meaning that there had been either an intentional or negligent act. In my plug example, had it swung up and hit me in the face, the injury I would have suffered would likely have constituted an invasion of my body, and perhaps also my health. As for culpability, if he had an exculpatory justification for his action, he would likely be off the hook. Of course it's not likely that self-defense or necessity could have justified the yanking of the cord. He may have wanted to leave quickly, but he certainly didn't HAVE to... So while I wouldn't suspect that he was trying to injure me on purpose, his cord yanking was clearly negligent. A reasonable person would certainly have grabbed the plug close to the base of it, which he did not.

So there you go. It looks like I can sue him in Germany. And for my injury I can get the costs of curing it, and because it's a bodily injury, money also for pain and suffering. If it has horribly disfigured me and now prevented me from my otherwise gainful employment as a supermodel (stop laughing...), I might even be able to get money for impairment of earnings. However, unlike in the US, it would be paid to me in an annuity and not as one lump sum. Also, unlike in the US, I'd not be able to get any punitive damages. No triple amounts or anything to punish the wrongful plug-puller for his wrongful plug-pulling. Germany finds them offensive to public policy and would not enforce such an award even if I had managed to win it in the US.

There would be another possible avenue for suit in Germany, under Sec. 823 BGB par. 2, if his bad plug-pulling had violated a statute on plug-pulling written to protect people like me. There is a similar principal in American tort law, and like in American law the requirements for its applicability in Germany are fairly narrow. This statute could derive from any area of public or private law, including criminal law, but like all German law, it must very specifically delineate that this particular act is the kind of act it applies to. Furthermore the statute needs to have been written to forestall the kind of harm suffered. Thus, for instance, had there had been a plug-pulling statute designed to prevent outlets from shorting out, then even if his plug-pulling had been forbidden by the statute it would still not enable me to recover for my bodily injury, since that was not the kind of harm the statute tried to prevent.

And there is yet another avenue for liability in Germany under Sec. 826 BGB par. 3, which says that a person is liable if he "intentionally causes harm to another in a way which offends contra bonos mores." This section addresses behavior so shocking and offensive that no resulting harm could possibly be given a free pass. If the person intended to cause harm, or should have known harm might result, he'd be liable for it. However, I don't think the plug-pulling necessarily would be covered by this section. It just doesn't seem all that egregious.

But one other feature of German tort law, a logical extension of the fact that tort law lives in German law so close to contract law, is that courts can often construe contractual duties between a tortfeasor and an injured party. This construal is aided by the fact that there is no doctrine of consideration in German contract law, which means that contract law can function as sort of a gap-filler when the tort statutes don't seem to be providing redress to an injury on their own.

Still, I don't think such a construct is going to help me here. A court would have to go to great lengths to find a contractual link between me and my classmate. This practice of finding contractual liability is more useful when there's a question of vicarious liability. German law tends to allow for it only in very limited circumstances. It first requires that the party who caused the injury actually be the defendant's servant. Moreover, the term "servant" has a specific definition, being limited to only those under the defendant's supervision or control. (Or, as in the case of professionals, to those who are part of the defendant's organization.) Then the harm needed to have been caused during the course of the servant doing his assigned task. There's some leeway on this requirement: it doesn't mean that the servant had to have been directly told to do the specific action, but if it was part of the servant's ordinary duties then it would count.

Still, the same action may not subject a master defendant to liability if the servant performed the task on his own accord and not as part of his job. The master defendant also has the ability to defend himself by showing that it took proper care in selecting, training, and supervising the servant. This is where the courts' ability to construe a contract helps plaintiffs, because as long as the defendant still somehow owed the plaintiff a duty, then it doesn't matter how much care he took if the resulting injury still essentially constituted a breach of that contractual duty.

Of course, this legal construct will not help my claim for the plug-pulling injury. My classmate was not anyone's servant, nor were we otherwise contractually involved. What a shame.

But I guess that's ok. Disaster was averted and it turns out the plug was pulled out without causing serious bodily injury to anyone after all.

Now, about that modeling career...

Years ago, when I worked in France, by coincidence a good friend of mine from middle school was there at the same time doing a semester of law school abroad. I always thought that would be a nice thing to do if I ever went to law school, and indeed, when it came time to choose which school to go to I chose the one with a French program.

And then I wimped out and didn't even apply to it. I got really skittish about my French skills and decided learning the law was hard enough – having to do it in another language would probably not be all that much fun. And so I picked an English-language program instead, and one thing leading to another, here I am in Germany. NOT France.

But glutton for punishment that I am, I decided to take Cour Jouridique – a course on French law taught all in French. It was sort of a bonus course – outside my main focus – but it was kind of nice to get a taste of what I passed up by not doing the French program as originally planned.

As the course neared the end, though, I once again got skittish about my French skills. I kind of knew what was going on in class. But did I really? Unfortunately, to get credit for the class it turned out that I had to sit for the exam (apparently auditing wasn't an option, which I didn't realize until quite recently). So I did, yesterday. And I THINK I passed. Perhaps not with flying colors, but perhaps just enough. (Fortunately I think I'm able to take it P/NP, which poses much less danger to my transcript, I think.)

It was the first – and only – course I've ever taken in a language other than English (not counting language immersion courses). That in and of itself was good to experience. Of course, in some ways it was particularly difficult for me: legal vocabulary lists, for instance, were translated into German... And it did tax my skills a bit. I kept feeling like everyone else spoke better. And maybe that's so. But you know, I need to cut myself some slack. All my classmates, 19-22 years old, started learning it years ago when they were children – as one is supposed to do with learning a language. Whereas I didn't even START to learn French until I already was their age (21). So maybe, all things considered, I'm really not so bad at it after all.

One of the reasons I'm so fixated on foreign language skills is that, despite always valuing the import of speaking another language, it wasn't until well into adulthood where I finally began to be able to do so. And there's really no excuse for that.

Yes, my having begun my foreign language education with Latin may not have been a good first step in acquiring fluency in any modern, spoken languages. But in my high school sophomore year I switched to Spanish. And in a bureaucratic twist I still can't figure out how I was able to achieve, I got to take Spanish in a private class. I met one-on-one with the teacher, every day during lunch, and we cranked through two years' worth of curriculum in one. It was an amazing opportunity, and it helped me grasp grammatical concepts that I still build upon today in any language that I speak.

But it was Spanish I and II, and in my school the subjunctive wasn't taught until Spanish III. And Spanish uses the subjunctive A LOT. Many things that can be expressed in the indicative in English would come out wrong if spoken in the indicative in Spanish. So my teacher said, regularly, "Don't try to speak. You don't know the grammar and you'll get it wrong."

So I never, ever spoke Spanish. In fact, I was afraid to – I would be wrong! Instead I patiently waited until that far off day when a teacher would tap me on the shoulder and say, "OK, now you're ready to speak Spanish."

When the truth of the matter is that you can speak a foreign language from the first word you learn. Speaking is about the exchange of ideas. It doesn't take an expansive vocabulary and sophisticated grammar to do it – it just takes the attempt. Which is not to say you should pass off unintelligible gibberish as a foreign language, but you need to start making attempts at the connection so that experience will be able to plug the gaps and teach you the rest of the language. Without speaking, learning a language is like learning algebra – you might get the formulas down, but you'll never be able to actually speak it.

It's tragic, really, all that time wasted. All that time where we could have had oral drill after oral drill. And I would have finished my sophomore year with the confidence to have a conversation. Instead, I finished the next year, the year after, and a year of college Spanish and never had a conversation in Spanish with anyone. It's so stupid – it's the language I've actually studied more than any other yet it's the one I speak the least.

But my adult experience with French, and my recent forays into German, give me hope that I could someday, with a little effort, learn to actually speak Spanish. It's a very regular language, grammatically, and I still remember most of the concepts, if not the exact structures. With a textbook and a conversational opportunity, I think I could learn it. Someday I hope I do.