prior probability

(And my birthday!) On this day in 1944 the Allies liberated Paris from the Nazis, a major victory and symbolic turning point in the Second World War.

Following up on my previous post (“Tactics versus strategy”), I will focus on the meaning of “tactics” in this post. In the world of chess, tactics refer to the specific sequences of one’s moves, such as a “fork,” a chess tactic in which a player positions one of his pieces in such a way as to threaten to capture two or more pieces of his opponent. This insight, that the sequence of one’s moves can decide the overall outcome of a contest, applies to almost every domain in life, including sports, love, and law. In sports, for example, “flopping” is, alas, an all too common tactic (see the humorous video below), especially in sports like soccer and basketball, and in the game of love, winking or offering to buy someone you are attracted to a drink is another common tactic. Here, however, I want to focus on my area of expertise, the law, by presenting two prosaic examples of legal tactics.

In legislation, a common tactic is the so-called “killer amendment” designed to shoot down proposed laws that are supported by a majority of the voters. My colleague and friend Leo Katz has written an excellent paper titled “A theory of loopholes” explaining how this tactic works. In brief, a legislator who opposes a proposed law may often try to insert a provision in the bill that is designed to appeal to the most radical or extreme group of voters, thus killing the bill’s chances to win majority approval. Likewise, in litigation one of the most common tactics is “forum shopping”–the practice of choosing a court that is most likely to provide a judgment in one’s favor. As a result of this tactic, the plaintiff, like the first mover in chess, enjoys a strategic advantage over the defendant, since it is the plaintiff who generally gets to decide in which court to bring his case. Like chess, however, there are some limits to the plaintiff’s first move. In chess, the first mover is only allowed to move his knights or his pawns. Similarly, a plaintiff is required to bring his action in a court located in a State that has some connection to the legal issues being litigated, but since most business and commerce occur across State lines, the plaintiff may often have significant leeway in selecting a forum. Generally speaking, the plaintiff will prefer to bring his action in his home jurisdiction or in a court with a reputation for being “plaintiff-friendly.” If the defendant lives in a different State or is overseas, the defendant will thus have to incur significant travel expenses to defend the case in the plaintiff’s home State.

I now want to conclude this blog post by posing a delicate and difficult philosophical question about the ethics or morality of such tactics. In chess, for example, we praise a player for his astute and beautiful tactics, but oftentimes tactics can appear to be unethical or “dirty,” as in the case of “flopping” in soccer or “killer amendments” in legislation. Moreover, my colleague, friend, and co-author David Orozco has written about a third type of legal tactic, a tactic that we both find repugnant: legal bullying. So, here is my general philosophical question: Is there a principled way of distinguishing between clean and dirty tactics?

“Tactics is knowing what to do when there is something to do. Strategy is knowing what to do when there is nothing to do.” Discuss.

For my part, one of the things I love about this aphorism–which is attributed to the great 20th century grandmaster Savielly Tartakower–is that it not only explains the difference between tactics and strategy; it also applies to domains beyond chess, like law. I will elaborate further on this distinction, as it applies to law, in the next day or two. In the meantime, I will be putting the finishing touches on my new “legal environment” and “advanced business law topics” courses …

My wife’s paternal grandmother Mrs Doris Robinson died earlier this month. Before she went to Heaven, our matriarch published a family memoir titled “Only God Can Make a Tree.” The cover and first page of her beautiful book are pictured below. For my part, I will be reading her memoir over the weekend in her honor and will resume my blogging duties on Monday or Tuesday of next week.

Mine is “Ten Duel Commandments” hands down! In addition to the musical beat and the lyrics, I like how Lin-Manuel Miranda breaks down the intricate formal rules of this deadly and fascinating ritual. Here is the Wikipedia page for Ten Duel Commandments. Bonus link: Here is a previous blog post of mine on “Dueling for Dummies.”

I am teaching a course on “Advanced Business Law Topics” in the fall. Here is a link to my new syllabus (updated again on 8/24). Instead of assigning a textbook, I have decided to devote each class to a particular legal or ethical puzzle, beginning with the blue bus problem from the law of evidence. My first classes are scheduled for the week of 8/24, and I will be blogging in depth about each one of these legal and ethical puzzles every Friday during the upcoming fall semester, starting on 8/28. For now, the top half of page 2 of my three-page syllabus is pictured below. (Memo to WordPress: I absolutely hate this new “Block Editor” feature you have imposed on me; what you used to take make a few seconds to accomplish now generates several exasperating minutes of bewilderment.)

Note: I shall also be sending this same to letter to the Deans of all eleven ABA-accredited law schools in Florida. If they have not done so already, these law school deans should be using the power and prestige of their positions to petition the Florida Supreme Court to allow their graduates to practice law in the State of Florida via the process of diploma privilege.

August 19, 2020

Governor Ron DeSantis
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

Dear Governor DeSantis:

You are a busy man, so I will get to the point.

Today, August 19, the Florida Bar Exam was to have taken place. The bar exam was originally scheduled to be conducted on site in the cities of Tampa and Orlando in July of 2020, but following an alarming spike in COVID-19 cases in the State of Florida, the Florida Board of Bar Examiners decided to change the format of the bar exam into an online exam and postpone the bar exam until today. (The Board is an administrative agency of the Supreme Court of Florida and handles all matters of bar admission.) Due to technical issues with the online exam software, however, the Board at the 11th hour postponed the bar exam yet again–now to “a date to be determined in October.”

As a law professor in the College of Business at the University of Central Florida, as a licensed attorney in good standing authorized to practice law in the Commonwealth of Puerto Rico, and as a person who once had to take a bar exam himself, I find this state of affairs regarding the Florida Bar Exam to be deplorable, and I respectfully ask you to use the moral force of your powerful office to intervene in this matter. Specifically, I respectfully request that you take the following common sense steps to correct this untenable situation:

1. First, that you issue an apology on behalf of the State of Florida to the current cohort of Florida bar applicants.
2. Second, that you request from the Board a complete list of all bar applicants who have graduated from an ABA-accredited law school.
3. Lastly, that you petition the Supreme Court of Florida on their behalf to be allowed to practice law in the State of Florida via the process of diploma privilege.

The Board and the Florida Supreme Court must be held accountable for this mess. With your help, they will!

Thank you for time and consideration,

s/ F. E. Guerra-Pujol

Associate Instructor of Law

University of Central Florida

I am in the process of writing a letter to Florida Governor Ron DeSantis regarding the recent Florida bar exam fiasco. In the meantime, check out the photo collage pictured below, which I put together in honor of the Hollywood actress Cleo Moore. If you have been following this blog lately, you already know that I am a huge fan of film noir. What you may not know is that Cleo Moore is one of my favorite film noir artists. (Here is her Wikipedia page.) Recently, the Movies! Network screened her next-to-last movie “Overexposed,” the source of my Cleo Moore collage.

Update (8/19): Here is my open letter to the Governor of Florida (and to all 11 deans of Florida law schools) regarding the Florida bar fiasco.

I interrupt my regular blogging program to bring my loyal readers the following news bulletin, followed by some personal commentary:

Last month, the Florida Board of Bar Examiners rescheduled our state’s bar exam for August 19. Yesterday, the Board announced that, due to technical problems with the exam software, it is now postponing the Florida bar exam to a date yet to be determined in October. This is outrageous on so many levels, but the buck has to stop somewhere: the Florida Board of Bar Examiners is a local and national disgrace and, in my view, is guilty of breach of contract, negligence, and intentional infliction of emotional distress. In the meantime, I call on the members of this board, if they have any sense of decency or a shred of humanity, to apologize to the bar applicants and back up that apology by petitioning the Florida Supreme Court to grant all of them diploma privilege forthwith; otherwise, they must resign. Governor DeSantis, are you listening?

As a child, I used to love visiting the Post Office with my mom. Today, I just discovered that my friend and colleague Hollis Robbins (@anecdotal) is writing a book on the history, literature, and aesthetics of the U.S. Post Office. I can’t wait to pre-order her new book; in the meantime, below is her syllabus for her “Post Office Stories” course. You’re welcome!