In memory of my father’s friends who died on their Odyssey through Germany.

My father is still going strong at 87. It seems, though, that not a week goes by without him mentioning the death of one of his friends. The friends he has almost never spoken of, however, are the ones whose deaths he witnessed as a member of the 106th Infantry Division in the Ardennes during the Battle of the Bulge and during his time as a POW thereafter.

The 106th Division’s experience was extreme even in a time of extremes. As one concise summary puts it, when the division “caught the brunt of the German Offensive on 16 December 1944,” its members:

• had been on the Continent only 15 days,

• had been in place in a “quiet” sector for orientation,

• had the youngest troops (average age – 22) of any American Division on line,

• had been in their new positions only five days,

• had no prior warning that the Germans were going to attack, and

• occupied a front line that covered over three times the normal distance.

My dad, a member of the HQ Company of the 422nd Regiment of the 106 (pictured at left at Camp Atterbury, Indiana; my dad is the 2nd from the left in the top row), has told me that on the night of December 15, 1944, he was on sentry duty in the snowbound forest, believing there wasn’t another soul within hundreds of miles off to the east. In fact, there were over 500,000 German troops readying the last Nazi counteroffensive of the war.

The “After Action Report” submitted prepared by the Army one month laterlays out the devastation suffered by the 106th Division in bureaucratic terms that cannot hide the reality:

It is presumed that the 422nd Infantry Regiment, 423rd Infantry Regiment, 589th FA Bn, 590th FA Bn and the 106th Reconnaissance Troop were eventually overpowered by the German forces east of ST VITH and the bulk of the personnel captured about 19 or 20 December. The strength of the German attack in the division sector and the forces available to the division at the time prevented their being relieved. Attempts to supply the units by air failed because of the weather, although, as learned later, two drops were made but not within their reach. It is known that they were still in the fight early 19 December. It is also known that prisoners were taken by the Germans. However, the final chapter in the defense of the SCHNEE EIFFEL penetration of the SEIGFRIED LINE held by these units is not now known.

The estimated losses sustained during this period were 8490, including 415 killed in action, 1254 wounded in action and 6821 missing in action. A large part of the organizational equipment and most of the individual clothing and equipment of CT 422, CT 423 and the 106th Reconnaissance Troop were lost when these units were cut off in the SCHNEE EIFFEL region.

What followed for my father were months during which he was solaced by only 2 thoughts. Each day he realized he still was alive. He has also confessed to me that throughout he was regularly struck by the astounding nature of the events he was living through.

But it was hell. You can go here to read several accounts that overlap with his to a considerable degree. He was marched hundreds of miles through a frozen winter. He was transported in suffocating boxcars that were strafed and bombed by Allied planes. He and his fellow Jewish-Americans were segregated from the other American GI’s; it is only because the Nazi bureaucracy required that he, a non-commissioned officer, be removed from a camp reserved for privates that he escaped being shipped to Berga, about which his army buddy Charles Guggenheim made a film many years later. Finally, he ended up in Stalag IX-A in Ziegenhain, Germany. He has told me that one of the most horrifying sights while in Stalag IX-A was not within the camp itself but nearby — a hospital for German Army amputees, with its countless number of men with missing limbs.

Richard Peterson, a fellow POW in Stalag IX-A, describes their liberation:

The tanks of the 6th Armored Division arrived almost too late to use what remained of the daylight. But before darkness came on Good Friday in 1945 they roared down the main street of Stammlager IXA, Ziegenhain, Germany, liberating over 6,000 Allied prisoners of war, including me. We cheered them until we were hoarse, and begged for cigarettes and food. The tankers did not know they would find Americans in the camp, and had made no preparations for the starvation they discovered. They gave us all their own rations, promising to send more food and medicine to us the next day.

As I wrote above, my dad rarely speaks of those he lost along the way to liberation. But I know he thinks of them all the time.

In memory of Gill Scott-Heron — No New Thing

Metaphors really do twist your mind.

Lawyers — especially those like me who write pieces of legal advocacy and teach others to do so as well — know well the power of words. So do politicians. Paul Ryan and the Republicans are proposing to replace Medicare (which supplies government-paid medical care for senior citizens) with a plan that instead provides money to senior citizens to buy their own private medical insurance on the open market. Their plan utterly destroys what Medicare is, but they describe it as one to “save Medicare, . . . to reform it so that it delivers the high quality we expect, at a price we can afford.” (emphasis added)

And taxes on wealth passed to those who didn’t earn the wealth are described as “death taxes.”

As I wrote above, however, lawyers are well-attuned to these tricks. Sometimes, therefore we underestimate their impacts. We see through the metaphorical frames our adversaries use.

But Psychology Today describes a study  vividly demonstrating the impact metaphors have on judgment by documenting the radically different proposed solutions college students proposed for urban crime depending on whether the crime was described as a “wild beast preying on” and “lurking” in the city or, instead, a “virus plaguing” the city:

Researchers Paul Thibodeau and Lera Boroditsky from Stanford University demonstrated how influential metaphors can be through a series of five experiments designed to tease apart the “why” and “when” of a metaphor’s power. First, the researchers asked 482 students to read one of two reports about crime in the City of Addison. Later, they had to suggest solutions for the problem. In the first report, crime was described as a “wild beast preying on the city” and “lurking in neighborhoods”.

After reading these words, 75% of the students put forward solutions that involved enforcement or punishment, such as building more jails or even calling in the military for help. Only 25% suggested social reforms such as fixing the economy, improving education or providing better health care. The second report was exactly the same, except it described crime as a “virus infecting the city” and “plaguing” communities. After reading this version, only 56% opted for great law enforcement, while 44% suggested social reforms.

Interestingly, very few of the participants realized how affected they were by the differing crime metaphors. When Thibodeau and Boroditsky asked the participants to identify which parts of the text had most influenced their decisions, the vast majority pointed to the crime statistics, not the language. Only 3% identified the metaphors as culprits. The researchers confirmed their results with more experiments that used the same reports without the vivid words. Even though they described crime as a beast or virus only once, they found the same trend as before.

Search engines pre-filter your results; one more roadblock to effective research

I have been for some time deeply concerned both by the inadequacy of most of my students’ research skills in recent years and the wider sense that most fields are losing a true understanding of what effective research consists of.

As I’ve previously written, research “is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in ‘careful consideration, observation, or study’:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

My belief that there is a decreasing recognition of the complexity and creativity of research is only compounded by the following talk by Eli Pariser, who explains in graphic detail the ways online search engines are constraining our abilities to use them effectively by filtering the results pursuant to algorithms that seek to give us what the designers believe we are looking for. If they know — algorithmically — what we are looking for before we even see the results of our initial searches, what hope do we have beyond even redoubled persistence and imagination of finding anything new?

Audacity: fundamental to the practice of art and of law

I tend more often on this blog to write about the impact of law on creative endeavors, but it has always been my intent to address as well the ways creativity informs the practice of law.

In fact, the first major “breakthrough” moment in any good legal education is that one when the student realizes law is not what she thought it is — the learning of rules that she then applies to facts — but is instead that legal reasoning involves the enormously creative and imaginative ability to relate legal rules, earlier applications of those rules, and the myriad of other considerations that go into our conceptions of justice. As importantly, legal practice is also a matter of being able to communicate that complex reasoning, and the ability to communicate it well is inextricably intertwined with the ability to imagine it in the first place. Creativity and imagination, of course, are required to find the law as well.

These are not controversial views. They are central, however, to my fascination with the interplay between law and art.

One enormous component of genuinely creative work is audacity, which, in an article entitled Audacity in Contemporary Art, Diogenes March 1969 vol. 17 no. 65 1-19, Eduardo Gonzalez Lanuza defines very aptly in this way:

Audacity is “an attitude which consists of ignoring what is expected of you and daring to do what no one else dares to do.”

And yet most everyone believes law is authority that determines what is expected of you and requires you do what everyone else does.

So it is with enormous pleasure that I note that Corporate Counsel magazine has awarded Google its “Best Legal Department” award because of, as the magazine’s editor explained, the group’s audacity:

Past years’ winners were often defined by sedate virtues like superior systems and organization, but this year I’d have to say the key quality was audacity.

I’ve long been a fan of Google (though not an unqualified one), and there’s no doubt that its daring has been no small part of my admiration. I can think of few things I would want more as a lawyer than to represent Google in connection with the Google Library Project. So here’s to Google, and if anyone there in the legal department is reading this, I’d love to become your colleague.

Addendum: Speaking of Google’s audacity, not more than a few minutes after posting the above, I came across this, via Plagiarism Today:

Google has signaled that the company is prepared to oppose the major film and music companies as well as Congress and the president of the United States on a controversial bill designed to thwart online piracy.

Google Chairman Eric Schmidt said today in London that the company is prepared to go on fighting the bill should it become law, according to published reports. U.K. publication the Guardian is reporting that in a discussion with reporters during a London business conference, Schmidt said: “If there is a law that requires DNS [domain name systems, the protocol that allows users to connect to Web sites], to do x, and it’s passed by both houses of Congress and signed by the president of the United States, and we disagree with it, then we would still fight it…If it’s a request, the answer is we wouldn’t do it; if it’s a discussion, we wouldn’t do it.”

Is a man’s home his castle? Apparently not in Indiana.

Here’s a breathtakingly broad decision: The Indiana Supreme Court, in Barnes v. State (pdf), ruled 2 days ago that “there is no right to reasonably resist unlawful entry by police officers” into your home. As NWI.com explains the decision:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Justice Robert D. Rucker, in dissent, relied on the formerly well-founded belief that one’s home is one’s castle:

In Miller v. United States, 357 U.S. 301, 313-14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!”

Id. at 307. The same is no less true today and applies equally to forces of the State.