Tuesday, May 31, 2011

Parchment, Paper, Pixels by Peter Tiersma

Peter Tiersma’s history book Parchment, Paper, Pixels is about the evolution of the legal profession. He frames this in the narrative of technological innovations for communicating rules via basic paper, the printing press and then computers. For the sake of brevity he focuses on areas of law that intrinsically revolve around paper like wills or contracts, but he broadens the scope by the end when he focuses on laws themselves. In the process he explains the intricacies of why a rule on parchment, printed paper or on a computer works differently.

With both written and oral rules the party is mainly focused on discovering the speaker’s meaning, what changes is that someone speaking orally doesn’t have to create nearly as complex of a rule. The speaker can rely on body language, tone and other subtle forms of communication to get across their point. Listeners, in turn, rarely focus on the precise statements of a person and instead focus on the general meaning. Clarification is also not really an issue because you can just ask the person what they meant by something, which allows the speaker to adapt that meaning to something appropriate to the context. For example, if the village elder declares that there will be weeaboo in the ritual hut, they can explain what that means should someone be confused.

You don’t have any of that with a written rule. The rule has to exist in a vacuum because someone with no access to the speaker is going to read it. They’re going to focus on what individual words mean and be more capable of recounting specific statements because they’ve got it right in front of them. Generally people remember the specifics of something that was written down way better than they do something said to them. As a consequence a written legal document has to devote a lot more time to explaining what something means so people don’t figure out some goofy way it might help them. It’s not to be obtuse, it’s to make there is only ONE way of interpreting a document. This is Tiersma’s explanation for why lawyers and judges began to begin writing in such a convoluted manner, going back to another history book he wrote called Legalese.

A big chunk of the book then focuses on the law governing contracts and wills. Contracts are a legal concept that existed long before writing so the paper contract is not always totally binding. This is for the practical reason that, as with an oral rule system, you can just ask the person what they meant in the contract. Conversely a will is slightly more tricky because the person you need to ask for clarification is usually dead. Thus the rules governing wills and paper came very early in history and are very strict. Today you need two witnesses to sign off on any changes to the will or even have it be binding in the first place. This is a big problem in law because a lot of people still think they can print something off at Kinko’s and leave it at that. Courts are required by law to chuck that will and distribute your estate based on a formula when that happens. Whether or not the will is legit, the issue is that if you allow those kinds of wills in then people will be able to sneak in fake ones.

Tiersma uses games to make the distinction between a written record of the rules and rules that people actually obey. The example is a kickball game where everyone orally consents to the rules. That’s generally going to represent what the group thinks and has agreed upon. If someone were to come along, observe the game and write down the rules they would not actually be the rules because it’s still an oral system. That is, the players don’t recognize the authority of the text. Once enough players get together that they feel the need to start writing crap down you then shift into where the paper rules govern. The groups all agree to follow what the paper says which then causes all those mechanical shifts as noted above.

Tiersma reinforces this point by comparing this process to our relationship with Christianity. A person interpreting the Bible who thinks it was beamed straight from God onto a book is going to limit their interpretation to what the book specifically has written down. A person who thinks it was created by a group of Romans a couple of centuries ago and has been heavily edited by various groups since then will take a broader approach. The person who believes the Bible is the word of God does not believe that the book is a representation of the law, they believe that it IS the law.

Appreciating why any of this matters in the big picture comes from recognizing that our culture, despite a brief flash of letter writing for a few centuries, is mostly oral. It doesn’t matter that I’m writing something down, what matters is where the authority is coming from. With e-mail, TV, Skype and all the other trappings of the internet we’re back to the same principles of an oral rule system: you just ask the person for clarification and focus on what they meant instead of what they said. People don’t write things that have to be self-explanatory, they just write as if they were talking. This is why cherry-picking quotes from forum conversations has always seemed a tad tacky to me. Forums are generally oral systems and it's imposing a written text technique that results in everyone talking like a stick was shoved up their ass.

There’s a lot of history that comes into play here about how rules were published and communicated, but the ultimate gist of it is that the American legal system is oriented around a text-centric approach. The volume of cases and rules are so massive that lawyers are now forced to search for specific phrases or words without any regard for the actual case. Law briefs and rulings tend to have short quotes and snippets from other rulings to justify their arguments without any regard to the larger context because there’s so much information involved. The problem is that ONLY lawyers, judges or particularly obnoxious academics communicate in this manner, the rest of society still operates on an oral method of communication. Which leads to fun things like people telling me I’m being an ass or not understanding what I’m saying when I talk about law. But I’ll admit Tiersma helped me get a better awareness of when and how to bridge that gulf with people.

At this point the law is going to remain in its textual state for the near future because there isn’t really any other way to communicate the complex concepts necessary with a graphic or video. Tiersma concludes with that you can have a legal system without writing, you cannot have one without language. In a vain attempt at dragging this back into being relevant to games I imagine the same is true: you don’t really have to communicate a rule system in any one particular fashion. But there does need to be a method of communication going on.

Saturday, May 28, 2011

Passing the BAR review

Time to start blowing the dust off this blog and get it back underway. I'm going to shell out some old material I never got published and then get up to a regular routine soon. This is a review of an educational board game I wrote almost a year ago.

Each state in the U.S. requires all lawyers to take a multiple day exam called the BAR, which consists of essay questions and a 200 question multiple choice test called the MBE. It covers six bodies of law: Torts (think car wreck lawsuits), Property, Contracts, Constitutional, Criminal, and Evidence. This post won’t be going into any nitty gritty details but instead will discuss a board game designed to help study for this section called Passing the BAR. As someone who has taken the BAR twice and passed the MBE both times, I thought I’d offer my two cents on it.

Conceptually a multiple choice test works a bit like a roguelike. All you have to do is remove the dungeon and replace the stats with your actual abilities. Monsters in these kinds of games, like multiple choice questions, have more to do with knowing the correct reaction than blindly attacking. Turning this into a board game involves adding a lot of additional elements to this basic interaction. Passing the BAR is setup like a game of Trivial Pursuit with bits of Monopoly thrown in for good measure. You have to move across 35 spots on the board while rolling a dice that only goes up to 3. Each spot is a topic of law, when you land on a spot you have to answer a multiple-choice question. Choose wrong and on your next turn you have to keep trying until you get a question in that topic correct before you can roll. There are wild card spots that send you to the beginning or ask you a bit of legal trivia instead of a specific question. The other player reads the question to you and asks you to pick an answer.

Trying to make studying for the MBE fun is the game’s biggest problem since it tries to expand its appeal by including legal trivia and broader questions for people not taking the MBE. I have trouble imagining a player using this game as anything other than a compliment to regular studies. The MBE sucks and the only person you could get to willingly sit through this game is a corpse.

I played Passing the BAR with my classmate Laura and during the first game we overhauled most of the rules to maximize speed and efficiency. All of the Professional Responsibility questions were removed because that area isn’t covered on the BAR. The legal trivia might be a handy way to remember more obscure laws, but it ends up just distracting you from the crap you should be reviewing. Anytime we landed on a spot that called for trivia, Laura and I instead picked a topic we were having trouble with. The timer was also removed because it wasn’t really necessary, after about an hour we were ready to tear our eyes out anyway. While in Trivial Pursuit you eventually need to badger someone into giving up if they don’t know the answer, here you have four options to pick from. If anything, the biggest issue is picking an answer too soon for most players.

Another problem is that all the questions are read orally so that everyone playing can participate. Certain law question are easier to understand when read aloud than others. In Torts or Criminal Law there is usually only one or two parties with a few factors to juggle. In Property or Contracts there can be several and it often becomes too much to juggle in your head. To really handle an MBE question you need to be marking key words and ignoring irrelevant sections. Practicing reading this material and slashing things out with your pencil is an important skill because that’s how you should take the test. So you’ll be spending most of the game cutting the players off and telling them to just give you the card.

That point aside, the game is pretty useful in the early stages of BAR preparation because you’re still learning how the MBE questions work. Like many standardized tests, studying the questions is just as important as learning the material. Having to negotiate all that information orally meant I quickly learned how to categorize and spot the issue in a question in just one pass. It also helped me spot the subtle differences between similar answers because when read orally you have to recognize the wording immediately. It’s useful because while the task is almost impossible for the more complicated subjects, just trying means that when you go back to reading them it will be easier.

Overall, I spent half of the summer using the board game to study. I’d come home after studying, eat dinner, and whoever arrived that night would play for an hour before going to bed. We never once finished a game. As the summer shifted into studying the essay sections there just wasn’t enough time. You could get through about 22 to 25 questions per hour using Passing the BAR, which wasn’t fast enough when compared to the 30 you can do in less time. Laura pointed out that the nice thing about the game was that it wasn’t as demoralizing as doing problem sets. You don’t get slapped with a percentage telling you that you’re not passing at the end of the session, so there isn’t the same sense of impending doom that BAR materials usually induce. Each question also brought up its own conversation as we talked about how we’d gotten to the correct or incorrect answer, swapping memory tricks and ideas for how to dodge wrong answers.

The second time I took the MBE (I screwed up on the essay portion of banking law) I barely bothered with the thing. There was no one around to study with me and the game’s questions are, by themselves, not particularly good or bad. I’d say don’t buy it, but honestly everyone I know who has the game was given it by some deranged Uncle or Aunt.