The concept of equity is a familiar concept in legal theory, education, and practice. It conjures up ideas of fairness, equality, or maybe dread, if it reminds you of your 1L contracts course where the concept carries its own distinct set of remedies. But what many people don’t know is that equity finds its origin in one of the most famous philosophers in the Western World: Aristotle. He originally developed the concept for situations where the law, because of its overbearing generality, was not well fitted for present circumstances. Thus, it could be used to rectify the law in a way the enacting legislative body would have had they been aware of the circumstances. As equity jurisprudence progressed in England, it continuously gave the judge an opportunity to do individual justice when the law could not or had not. This led one English Jurist to proclaim: “in some cases it is necessary to leave the words of the law, and to follow what reason and justice requireth . . . that is to say, to temper and mitigate the rigor of the law.”
However, over time, equity simple became its own body of law (often with separate courts) charged with adjudicating particularized subjects and remedies.” This, characterized by Fredrick Schauer in his book Thinking Like a Lawyer, as the “de-equitization of equity”, disempowered equity of its free-standing ability to right wrongs and dole out justice when the law seemed unfair. And with the eventual merging of the equity courts in the United States with regular courts of law, the concept became a far cry from what Aristotle had envisioned. It was simply another legal concept constricted by doctrine, legal rules, and precedent.
Still, Schauer explains that “the hold of the idea of equity has by no means been lost,” as it still serves as a subtle reminder of the ability judges have to act according to their conscience. Indeed, Bryan Garner and Antonin Scalia make this point explicit in their terrific book, Making Your Case: The Art of Persuading Judges, and it is to their recommendation that I now turn.
In essence, Garner and Scalia advise that when you must rely on fairness to modify the strict application of the law, you should pinpoint some jurisprudential maxim that supports your position. These maxims, venerable propositions sounding in fairness, justice, and reason, are mostly derived from equity practice, and still serve a persuasive purpose according to the duo. They include a couple examples in the text:
“No one can take advantage of his own wrong”;
“Acquiescence in error takes away the right of objecting to it”; and
“He who takes the benefit must bear the burden.”
Some states, including California, have even codified these maxims so as to provide explicit statutory support for your position, and “you can almost always find one to support a defensible position,” the authors write.
I would take the utility of these maxims a step further; that is, beyond using them to support a single principle, inference, or conclusion. I believe it would be worthwhile to ground the entire theme (or at least a theme) of your case in one of these equitable maxims.
Case themes are exceedingly crucial in the litigation context, as they serve as points of emphasis and reinforcement with respect to important parts of the case. They permit counsel to construct a compelling story of what the evidence in the case shows, and help establish why the other side is responsible for what happened and why your client is not. I think various maxims of equity scattered across the legal realm are especially apt for serving as case themes because of their simplicity and common-sense appeal; who wouldn’t want to find against a person with unclean hands who is now attempting to receive compensation?
So, go out and search the now defunct realm of equity for these maxims—synonymous with the rule of law, justice, and fairness—and use them as a starting point for a case theme, theory of the case, or just a proposition you are asserting. It will hopefully shape your thinking and reasoning in a way that furthers justice and fairness, as well as give the judge a more conscientious reason to rule in your favor.
For another post about legal writing check out my post here: Point Made
Food labeling unquestionably influences our purchasing decisions. Whether the persuasion is due to descriptive labels, such as organic and natural, or something more substantive, e.g., milk, labeling has a substantial impact on consumer spending.
Recently, the use of the label “milk” is causing a stir amongst certain special interest groups. The controversy hinges on the ability of plant-based dairy substitute manufacturers (almond milk, soy cheese, coconut yogurt) to label their products as milk, cheese, and yogurt—as opposed to something more abstract and possibly more apt (Liquid-Nut-Derivative, perhaps?). This labeling practice has been permitted for years, but there may be a change on the horizon with a proposed legislative Bill.
In January, 2017, Congress introduced the DAIRY PRIDE ACT (Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act). This bill would amend the Federal Food, Drug, and Cosmetic Act (FDCA) to consider any food mislabeled “if it uses a market name for a dairy product . . . and the food does not meet the criterion for being a dairy product.” The criterion for a dairy product is set forth in federal regulation 21 CFR 131.110 as the lacteal secretion, practically free from colustrum, obtained by the complete milking of one or more healthy cows.” I’m not a food chemist, but I’m pretty sure that almonds, macadamias, and soy do not come from the lacteal secretion of a cow. Thus, if this Bill is passed, any product labeled as almond milk would be considered misbranded, and prompt food manufacturers to drop the label lest they subject themselves to legal penalties. And this enactment will fulfill its purpose in preventing plant-based dairy substitute manufactures from profiting off the “milk name.”
But whether this labeling change will actually make a sizable difference in consumer spending is unknown. If I had to speculate, I would predict that a less informed consumer who relies less on the substance of the food and more on the labeling authority might be swayed, as the beverage will now carry a foreign label and not the all-so-familiar “milk” title. However, I don’t believe the informed consumer will be deterred, as the value of Almond Milk comes from it being a dairy substitute, and its mere designation as something non-milk won’t change that.
In any event, special interest groups have fired back in response to this Bill, encouraging people to voice their opposition to DAIRY PRIDE. These groups make a normative argument: labeling these products as “milk” is a long-standing practice that has achieved a vital place in our society—as the government has incorporated the term soymilk, for example, into its regulations and nutritional assistance programs—and effecting a substantial labeling overhaul would be unnecessary. There has also recent been litigation surrounding this issue, with one class-action Plaintiff asserting that the labeling misleads the consumer into believing the plant-based milk is nutritionally equivalent or better than cow’s milk.
This controversy ultimately warrants a further inquiry into the similarities between plant-based milk and regular milk, and whether plant-based milk can in good faith be labeled as milk in the first place. Many of these “milks” have caught fire in the past for including various emulsifiers, natural flavors (not even close to what they seem), thickening agents, and other food-processing aids that are harmful. For example, many almond milks and other plant-based substitutes contain carageenan, which can harm our gut-lining as well as trigger an inflammatory immune response similar to that your body has when invaded by pathogens. The utility of carageenan and similar chemical constituents comes from its food-thickening character, which allows us to feel like we aren’t just drinking almond infused with water. Unforuntately, this is exactly what we’re doing when we consume almond milk, which brings me to my next point.
One source estimates that an entire carton or jug of almond milk contains roughly 39 cents worth of almonds. If this estimate is correct, consumers are paying $3.99 or more for filtered water, additives and preservatives, like carageenan, with a couple of almonds spliced in for good measure. There is also the broader ecological concern with consuming almond milk when it’s estimated that a mere 16 almonds requires 15.3 gallons of water.
Now, environmental issues aside, I personally don’t have an issue with this apparent rip-off. As long as I avoid the brands with carageenan, I’m happy paying $3.99 for some watered down almond-liquid, as I believe it’s a better alternative to dairy or other beverages I would make my smoothies with. But should a processed beverage that is essentially preservative-infused water be characterized as “milk”? This question may require a broader inquiry into our society’s conception of milk so that our expectations aren’t being undermined, but a common-sense approach would answer this question in the negative, I think. Milk has a long-standing role in our society and has been considered a nutritional pillar in the household. Could labeling a product that is categorically dissimilar to this dietary staple mislead consumers into believing the health benefits are similar ? Could this lead to additional uncharacteristic labeling efforts by unscrupulous food-manufacturers in today’s day-and-age when there are exceedingly complex advances in food technology? I think these are important questions that deserve attention when Congress votes on the DAIRY PRIDE ACT.
Additionally, I’m interested in the economical effect a labeling change could have on consumer purchasing and the plant-based alternative industry—currently a $1.4 billion market. But whether this bill will get passed and, more importantly, whether the FDA will vigorously enforce the amendment is still up in the air. Until then, enjoy your plant-based milks but keep in mind that our almond cheeses, coconut yogurts, and soy ice creams may carry a very different label in the future.
My 2016 law review article about the Private Attorney General Act, a hotly contested California Labor Law Statute, was recently cited in a smattering of briefs, all on appeal at the California Supreme Court and United States Supreme Court. Check out the citations below, along with the article.
Anyone who publishes a law review article is concerned with whether or not anyone will read it. I am ecstatic that my article has been valuable at not only a theoretical level–e.g., cited in other law review articles or treatises–but on a very practical level–e.g., briefs in the Supreme Court. The notion that such an article could help change the law in any area is both motivating and fulfilling–even though it is likely either of the high court’s here will grant cert. Nonetheless, writing law review articles are a great way to propel yourself, personally, into an area of the law and I think it is definitely worth it to spend the time writing one, especially in law school.
When I was a summer associate after my 1L year, all the way back in 2014, I was called into the National Co-Chair’s office for an assignment. After informing me that he’d taken a new case, he explained that there are three fundamental concepts that a lawyer must determine, yet constantly hone and redevelop, at the start of each litigation: strategy, tactics, and theory of the case. The last concept is my focus today.
This familiar idea, constantly revolving around the litigation process, is simple, yet difficult to pinpoint in any exactitude. While there is much commentary in law reviews, legal journals, and the web on the concept, I had not delved into it rigorously, or really understood it well, until it was explained thoroughly in the book Successful Civil Litigation by George Vetter. It was only upon reading Vetter’s book that I realized its importance and how it may be achieved. However, it was only after reading Black Swan by Nassim Nicholas Taleb that I understood why.
The Theory Explained
Before I explain the reasons why the theory of the case is successful in litigation and at trial, its important to understand exactly what the theory is and how it is achieved
The theory of the case is simply a detailed, coherent, accurate story of what occurred, and it should tell your client’s story logically, and in a concise manner. Once correctly constructed, it will help communicate a compelling story to potential jurors. And it is this story that will nudge the jury to accept one party’s portrayal of various disputed inferences—based on undisputed facts—so that a favorable result is reached.
George Vetter’s six hallmarks of a “Winning Theory”:
It must have a firm foundation in strong facts and allow fair inferences to be drawn from the facts;
The theory should be built around the so-called high cards of litigation, incontestable or virtually incontestable facts, such as self-certifying documents, patently undoctored pictures, admissions against interest, the testimony of independent witnesses, clear scientific facts, and so on. The principle behind this rule: the jury reconstructs what happened from the evidence. Often the evidence is in sharp conflict. Naturally, then, the jury will seize upon the facts that seem fixed and certain and true. These facts then serve three functions. They, themselves, become part of the foundation for the jury’s reconstruction. They become the means by which the jury tests other facts and inferences. And they become the basis for the inferences;
The theory should not be inconsistent with, or fly in the face of, incontestable facts;
The theory should explain away in a plausible manner as many unfavorable facts as it can;
The theory should be down-to-earth and have a common-sense appeal. It must be readily acceptable by a jury; and
The theory cannot be based on wishful thinking about any phase of the case.
Thus, a theory with these components serves evidentiary functions, discredits and explains away the opposing sides telling of the facts, and allows the jury to follow along so that a logical result is reached. It is this last function that I find interesting: why does a logical narrative play such a dynamic role in persuading the jury; if the evidence is there, the burdens are met, why do we need simplicity, narrativity, and logical story-telling to reach the conclusion? This is where Taleb’s concept comes into play.
Nicholas Nassim Taleb’s Narrative Fallacy
The Narrative Fallacy concerns our susceptibility to overinterpretation and our preference for compact stories over raw truths. Our preference for narrativity effectively distorts our perception of the world, and this becomes particularly problematic when ascertaining and understanding events—in his book, Taleb was chiefly concerned with Black Swan events, which are unpredictable occurrences with enormous consequences that are inappropriately rationalized after the fact.
Narrativity does this by integrating facts into a logical link, or an arrow of relationship. And while this appears useful, it becomes a problem when organizing facts this way increases our impression of understanding and simplifies the world, thus skewing our perception of Black Swans and events of wild uncertainty. Here is a simple example of the fallacy from the book:
If I asked you how many cases of lung cancer are likely to take place in the country, you would supply some number, say half a million. Now, if instead I asked you many cases of lung cancer are likely to take place because of smoking, odds are that you would give me a much higher number (I would guess more than twice as high). Adding the because makes these matters far more plausible, and far more likely.
Thus, adding causality to the equation and crafting a narrative can unjustifiably affect our understanding of facts. But for my purposes, in explaining the theory of the case, the narrative fallacy is an excellent tool of which to take advantage.
Weaving together facts and conveying an arrow of relationship in litigation is critical because it not only makes the facts more memorable but also helps them make more sense. Taleb explains a few neurochemical and psychological reasons for why human organize information in this way, but, fundamentally, it has to do with retrieving and storing new information in our mind: “the more orderly, less random, patterned and narratized a series of words or symbols, the easier it is to store that series in one’s mind or jot it down in a book.” Therefore, narrativity helps us store information in a memorable way.
Another interesting side-effect of the narrative fallacy is that once a narrative is established, our minds work activity to solidify that narrative. We tend to more generously remember those facts from our past that fit our narrative, “while we tend to neglect others that do not appear to play a causal role in that narrative.” We revise these causative narratives involuntarily and unconsciously and re-narrate in a way that conforms with the already-established narrative.
Accordingly, one party’s production of the best evidence, the most effective direct and cross examinations, and the greatest demonstrations at trial may not play that persuasive of a role, so long as the opposition tells a more compelling causal narrative that explains how the events occurred in a logical and plausible matter. And once that narrative is established, the judge and jury will constantly find facts and evidence that support that narrative, and do away with those that don’t. In other words, trial may over before all the evidence even comes if during Opening Statements one party establishes the type of narrative Taleb highlights.
Taleb provides a method for side-stepping the ills of the narrative fallacy, which is to “favor experimentation over storytelling, experience over history, and clinical knowledge over theories.” But when advocating your theory of the case, flip those prescriptions on their head and create the most plausible, logical, arrow-like narrative you can. The judge and jury will be at the mercy of their cognitive predilection for narrativity, and you will be well on your way to litigation success.
A constant theme on my blog posts is skill development as it pertains to your professional career. Two book reviews in harmony with that theme were “Deep Work,” by Cal Newport, and “Peak” by Anders Ericsson. Those two books are intertwined with the book I’m reviewing today, and while the former writings provide the detailed methods for obtaining a satisfactory career, “So Good They Can’t Ignore You” provides the blueprint.
Peak and Deep Work dealt with the ways we develop Career Capital, which is defined as a description of the skills you have that are rare and valuable to the working world. So Good is the book that develops what Career Capital is and why it is so important to achieving a compelling career. But before I delve in the details, I’ll entertain one of the primary refutations in this book: the fallacy of the pursue your passion mindset—i.e., picking your passion and then developing a career around that passion.
Steve Jobs popularized this career-guiding framework during his 2005 Stanford Commencement Speech. Newport says this advice has everything backwards: you must first create skills that are rare and valuable, and it is from acquiring these skills that passion follows. Moreover, follow your passion advice can be harmful because you set such a high standard for yourself—inevitably an unattainable one. The focus is on what the world can do for you, not what you can do for the world. And this mode of thinking neglects developing rare and valuable skills, which is the ultimate good here.
The alternate mode is the Craftsman mindset. The logical chain of the Craftsman mindset is as follows: (1) You develop career capital through deep work and deliberate practice; (2) you use this career capital to acquire valuable and deserving traits, such as autonomy, control, and mission; and (3) as an outgrowth of this progression, you become passionate towards a mission, and find ways to expand your mission in new ways.
So first, the Craftsman focuses not on passion, but on honing rare and valuable skills to produce Career Capital. I believe it’s important to not only work relentlessly to develop your rare and valuable skills, but also in choosing which skills to develop. In Law and many other professions, I believe it’s common that individuals end up focusing on the non-crucial aspects of their job, while neglecting what is lofty and likely to lead to success. I have fallen victim to this as well, as I enjoy reading about legal topics that are rather obscure and not directly relevant to my area of law.
Thus, to pinpoint the most salient areas for development, Newport asks a basic question: What must you understand in your field to develop the necessary Career Capital. For Newport, he believed understanding his field’s (computer science) most difficult results would be a good first step towards revitalizing his career capital stores. In my case, taking Employment law as the field, a good place to start would be reconstructing, analyzing, and comprehending the most utilized statutes in my arena. This would entail rigorous understanding of, and painstaking detail to , statutes like the Fair Employment and Housing Act (FEHA), or the Labor Code. This might consist of reading the corresponding legislative history, poring through the authoritative commentary, and understanding the statutory construction of my targets. Another Career Capital building technique Newport introduces is the Research Bible: Once a week, requiring yourself to summarize in your bible a paper you think might be relevant to your research or area of study. After you’ve developed some career capital, this is when you can cash them in for valuable traits. The main traits Newport glamorizes are Control and Mission. Control is vital because it increases individual’s happiness, engagement, and sense of fulfillment. With these underlying needs met, one can only imagine how much easier it is to continually develop your skills, thus acquiring more career capital for even better traits.
But there are, as Newport mentions, “Control Traps” for the unwary. This includes taking on too much control before you have enough career capital. This is unsustainable and should be avoided at all costs. To side-step this trap, Newport introduces the Law of Financial Viability: when deciding whether to follow an appealing pursuit that will introduce more control into your work life, seek evidence of whether people are willing to pay for it. If you find this evidence, continue; if not, move on.
With control and your career capital stores replete, you can start developing your Mission. Mission is so important because it provides a unifying goal for your career—something lofty, deeper, meaningful. Newport explains that for mission to come about, once must reach the cutting edge of their field, which requires focusing on a narrow collection of topics for a potentially long time. Once on this precipice, your mission will reveal itself to you. It is often the result of combining various ideas, concepts, principles you’ve stumbled upon, and then meshing them together to create something novel.
With your mission in place, you must work to maintain this mission. There are two primary ways to do this: (1) Utilizing the Law of Remarkability; and (2) Making Little Bets. The Law of Remarkability is satisfied if your mission is remarkable in the literal sense of compelling people to remark about it, and if it has the ability to be spread in a venue that supports these remarks. In other words, produce work in a community that is well respected and highly visible. One example of this in the Legal field would be publishing an article showcasing your talent in a highly respected legal journal or highly-read magazine. This could be a publication like Los Angele’s Daily Journal or a Law Review Journal (while I know many of these journals have caught fire in the past for being read at extremely low rates, your ability to market this journal and publicize it yourself can help the spreading of your work). For the sake of brevity, I’ll skip out on the more self-explanatory little bets technique (for more detail on this download my outline).
Now that you have your mission, the career capital and traits to maintain that mission, and the techniques to continuously further and expand that mission, passion will inevitably follow: You will be so good they can’t ignore you.
Cal Newport is a professor of Computer Science at Georgetown and is easily one of my favorite authors. I highly encourage anyone starting out, or looking to advance, in a career to check this book out as I believe it provides the blueprint and structure for a successful purpose in your career. Also, download my outline for further principles, definitions of concepts, and examples. Find the Book on Amazon here: So Good They Can’t Ignore You
 However, this isn’t to say So Good They Can’t Ignore You doesn’t offer valuable methodology tips as well.
 I also introduce a few more career capital building techniques in my outline attached, and refer to my articles on Deep Work and Deliberate Practice as they represent vital abilities and techniques sufficient to build career capital.
Everyone wants to be at the top of their profession and field, but how do we get there? The main premise of Peak, by Anders Ericsson, is that you need to not only practice, but also practice the right way–i.e., deliberate practice.
Thus, people don’t just get better with ordinary practice or through working in a typical, unimpressive fashion. Even many years of experience one has accumulated performing a skill or practicing a profession does not guarantee expertise. Eriscson provides numerous examples of disciplines where professionals, over many years of workmanship, not only remain stagnant in their professional growth, but actually regress. The book advances the notion that you must take purposeful action to become an “expert” or to reach your peak. And this book provides, in theoretical and empirical fashion, the method one must accomplish to become an expert: deliberate practice.
For the average professional or hobbyist in any skill, this book is a goldmine of tips and recommendations on how to improve your craft. The book is incredibly encouraging for those who take a “growth mind-set approach”; that is, those who believe our abilities are not fixed but subject to indeterminable growth, which is dependent on various factors. One important factor is explicated in Peak, and that is deliberate practice. Although hearing about the elements of deliberate practice at this point may be tiresome —as the concept has been popularized by Malcolm Gladwell’s book Outliers, and more accurately explained by others such as Cal Newport in So Good They Can’t Ignore You—I’ll restate them once again:
Deliberate practice takes place outside of one’s comfort zone; that is, it shouldn’t be enjoyable, you should strain yourself when practicing;
Deliberate practice involves well-defined goals, not just a desire to effectuate vague overall improvement, such as becoming a better tennis player. Instead, you should focus on a narrowed goal, like improve my down-the-line backhand by trying to guide the ball to the upper portion of the opposite court;
Deliberate practice requires full conscious and attention (One could characterize this as Deep Work—a theory set forth in Cal Newport’s book of the same name). You can’t merely practice with a Facebook tab open and while checking your Iphone every 5 minutes; and
Deliberate practice involves feedback and modification of efforts in response to that feedback. In other words, do not go about deliberate practice alone; have a mentor or teacher that can critique your performance.
This post wouldn’t be complete without a reference to the law. However, many of the elements of deliberate practice don’t directly apply to Law practice, like they do to practicing the piano, playing chess, and flying a plane. Fortunately, there are areas within Law, primarily writing, that allow you to implement the elements. Ericsson details Ben Franklin’s attempt to become a better writer to explain how one can apply the elements.
Franklin simply found various articles he thought exemplified adept writing abilities and copied them. But he didn’t just transcribe the articles after reading them, simplistically looking at the words he tried to emulate; he would read the article and then only note what was necessary to help him remember the ideas and main points of the article. He would then put the article away, and try to emulate the article’s prose and logical structure based on what he had read and the sparse reminders he provided. The result: Ben Franklin became one of the most prolific writers of his time. Erickson believes many of the principles Ben Franklin implemented to become a better writer are part-and-parcel with his elements of deliberate practice.
While I haven’t directly applied the elements to my legal practice (notwithstanding a haphazard attempt during bar studies), I realized I have been unknowingly applying another principle in the book—mental representations. Mental representations are defined by Erickson as: “a mental structure that corresponds to an object, an idea, a collection of information, or anything else, concrete or abstract, that the brain is thinking about.” Erickson proclaims that it is these mental structures that allow performers to outclass their competition because they improve your ability to assimilate new information.
Throughout the last year or so, I have made it a concerted effort to have an eclectic understanding of the law. To do so, I try and read a wide range of legal materials, ranging from traditional legal opinions, to philosophy that provides the underpinnings of argument, and to literature regarding the constitution. What I’ve learned is that in a single area of practice you see many of the same concepts—or parallel concepts—and similar applications of those concepts over and over again. So, my intent in reading this diverse literature is to create effective mental representations so that when I see a concept I’ve been informed upon in the past, I can hone in on it and assimilate the new information effectively. For example, say I’m reading a legal opinion in the area of Employment law and I come across a distinct form of statutory construction that court is discussing, let’s say Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). Because I’ve read about this concept, or least seen it before in a law review article on something totally unrelated, I can now assimilate the new information with a greater sense of familiarity. I can compare this new situation where the concept appears to the previous ones, and all of this, I posit, increases my comprehension and understanding of whatever I’m presently learning.
Erickson also does a tremendous job of dispelling the notion that some individuals have natural talent, which explains why they’re expert performers. While some people are more physically predisposed to certain activities—think Shaq—the real reason the vast majority of experts have been able to excel is because they have all engaged in Deliberate Practice. Erickson supports this with empirical data and I found his argument pretty convincing. But this doesn’t presuppose that it’s easy to become an expert. Deliberate practice is incredibly rigorous and not enjoyable. You must strain through your practice and when developing your mental representations. Only then, will you reach your peak.
All in all, this book was a treasure trove of encouraging information and was written in a breezy fashion that made it an easy read. My biggest critique is the citations weren’t organized in the clearest way, but this could be due to me purchasing the book on kindle.
I’m attaching my outline with notes from each chapter—8 pages—below. Please download if you liked this post because a lot of ideas I didn’t include here are developed on that document. But, obviously, read the book for yourself if you truly want to understand how to become an expert in your field.
In 2013, the FDA created a regulation defining “gluten-free” as it pertains to food labeling. This regulation is the primary source of legal authority governing manufacturers who label their food products as gluten-free. While this rule has undoubtedly helped those with celiac disease select food unlikely to cause much maligned health consequences, the rule is still imperfect, if not complete. This is because research and published material continue to highlight the adverse health consequences gluten consumption has on those without celiac—i.e., those with gluten sensitivity or gluten intolerance. Thus, the gluten-free label as it stands today is not the be-all-end-all, and consumers should remain scrupulous when buying gluten-free products containing trace amounts of gluten.
To further explain this, lets look at the wording of the FDA’s regulation.
The Regulation: 21 CFR 21. Part 101. Section 101.91—Gluten-free labeling of food
Gluten (meaning glue in Latin) is a protein composite that acts as an adhesive material to hold flour together to make a variety of bread-like products. This protein tends to cause many issues for those with celiac disease—a chronic inflammatory disorder of the small intestine—and the FDA proposed and adopted a rule clarifying which products manufacturers could label as gluten-free to help those with celiac.
The rule is found in Title 21 of the Code of Federal Regulations, Part 101, Section 101.91. After a brief statement of definitions, the rule explains what is meant by gluten-free. Unsurprisingly, any food bearing the label cannot contain an ingredient that is either a gluten-containing grain (e.g., spelt wheat) or and ingredient that is derived from a gluten-containing grain and that has not been processed to eliminate the gluten (e.g., wheat flour). The final clause, however, is the one of interest. It states that Gluten free means a food that does not contain the following: “An ingredient that is derived from a gluten-containing grain and that has been processed to remove gluten . . . if the use of that ingredient results in the presence of 20 parts per million (ppm) or more of gluten in the food.” In other words, a gluten containing food can still bear the gluten-free label as long as the presence of gluten is below 20 ppm gluten.
The FDA chose 20 ppm as the cut-off because this level has been shown to be safe for people with celiac—as established in a 2007 study. This is also the standard adopted adopted in the European Union. While limiting gluten to this threshold does not cause inflammation in the small intestine that affects people with celiac, it may still pose a problem for those who have a gluten-sensitivity.
Gluten Sensitivity is Different than Celiac Disease and Regulatory Interpretation
A food sensitivity is a response from the immune system and someone is “gluten-sensitive” if they react to gluten with a perceptive inflammatory response. This category of individuals is much larger than the celiac population, and this group should be skeptical of a gluten-free label because the FDA’s regulation is only concerned with gluten as it relates to those with celiac.
This can be gleaned by taking a textual approach (relying on the regulation’s text alone) in interpreting the regulation and looking at how the FDA defines the term gluten: “[T]he proteins that naturally occur in a gluten-containing grain and that may cause adverse health effects in persons withceliac disease. There is no mention of gluten as it pertains to those without celiac.
Additionally, interpreting the text in light of the regulation’s statement of basis and purpose confirms the FDA was only concerned with gluten vis-à-vis celiac disease. In the “purpose of the rule” section, the FDA states that this rule is necessary “to ensure that individuals with celiac disease are not misled and are provided with truthful and accurate information. . . .” Again, there is no mention of gluten-sensitive individuals in the FDA’s purpose of the rule statement; only a preoccupation with Celiac-inflicted consumers.
As this analysis illustrates, the FDA was not concerned with non-celiac consumers, so that label shouldn’t confer a health halo upon gluten-free foods that have been processed to remove gluten. As one commentator states, we know “very little about non-celiac gluten sensitivity, [so] we can’t yet determine what a safe level for that population is for that population without further studies.” While we may know very little about gluten sensitivity compared to celiac disease, there is still enough evidence to suggest many of us are gluten-sensitive, and so, need to be cautious when buying gluten-free products. The remainder of this article is devoted to explaining some common issues with consuming gluten for the non-celiac. My goal is to inform the most conscientious consumer to think twice before buying a product once tainted with gluten, but subsequently removed through processing, so that they may either stay away from that product completely or at the very least make a fully informed decision when buying.
Why Should We Avoid Gluten
The book Grain Brain, David Perlmutter’s New York Times bestseller, concisely summarizes the research looking at gluten and its effect on our body and brain. The biggest concern is the potential for neurological decline and inflammation in places other than the small intestine—the type of inflammation that occurs in those with celiac. Researchers have drawn the following conclusions:
“Gluten sensitivity is common in patients with neurological diseases of unknown cause and may have etiological significance.”
Gluten interferes with the body’s neural networks and is linked to neurological harm in patients with and without evidence of celiac disease.
“People with celiac have significantly increased production of free radicals, and they exhibit free radical damage to their fat, protein, and even DNA.”
“[T]he immune system’s reaction to gluten leads to activation of signaling molecules that basically turn on inflammation and induce what’s called the COX-2 enzyme, which leads to increased production of inflammatory chemicals.”
“Gluten sensitivity—with or without the presence of celiac—increases the production of inflammatory cytokines, and these inflammatory cytokines are pivotal players in neurodegenerative conditions.”
As these bullet points illustrate, non-celiac consumers need to be wary of eating gluten. With such grave consequences documented in the scientific literature, relying on an FDA regulation that only addresses gluten in the context of celiac disorder is unadvisable.
I hope this post draws attention to the mono-focused FDA rule and allows the consumer to tread carefully when deciding to buy a gluten-free product, which may still contain trace amounts of gluten.
 While courts have not developed a consistent approach to regulatory interpretation, decisions sometimes rely on the regulations text. See e.g., Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (concluding a phrase in a regulation was ambiguous because the “text alone does not permit a more definitive reading.”).
See Generally, Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (arguing that courts should take a purposive approach when interpreting agency regulations, which consists of looking at the regulation’s statement of basis and purpose or preamble); See also Secretary of Labor, Mine Safety & Health Administration ex rel. Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432, 1438 (D.C. Cir. 1989) (J. Ginsberg) (agreeing with agency interpretation because, in part, it was “fully consonant [with the] administrative history and purposes.”
 There may also be issues with gluten-free products because of the fillers and additives used to supplement the absence of gluten. These fillers can spike your blood sugar enormously, which can cause a host of other medical issues.
One of the latest books I’ve read is Willpower: Rediscovering the Greatest Human Strength. It’s the collaborative effort of Roy Baumeister, a renowned psychology, and John Tierney, a New York Times journalist. As you may have guessed, the primary focus of this book is in explaining the psychological concept of Willpower, and suggesting how your Willpower can be improved. There were many, many takeaways from this book and I cannot possibly share them all. So, I will highlight a few of my favorite concepts and ideas.
For one, you must understand that Willpower is a finite source of energy, prone to depletion. That’s right, we all don’t have infinite tanks of willpower deployable at any moment if we just focus hard enough. It’s more like the gas in our fuel tanks that gets used up when we make decisions, focus on hard tasks, or fail to self-regulate other parts of our life. And we use the same reserve of willpower for all manner of tasks; a different reserve isn’t used up when we engage in strenuous activities as opposed to simple tasks.
The stores in our tanks used to fuel willpower is glucose. Low levels of glucose, Baumeister found, correlated with low levels of willpower. The takeaway: if you find yourself unable to focus, eat something that can provide a sustainable source of glucose. Yes, I know simple carbohydrates like candy with lots of sugar is most likely to give you that glucose spike you desire, but stay away from those short-term glucose boosts and choose a slow digesting carbohydrate like grains or nuts. If you do need that quick hit, like I did when I was in several of my exams over the last couple of weeks, chose a fruit like a banana.
Another important attribute you must consider when improving your willpower is self-regulation, which is really another way of saying self-control. Throughout the book, the authors suggest various ways you can increase your self-control: the necessary element for enhanced willpower. The first step in self-control is setting a clear goal. So, whenever you sit down to complete a task, reflect on the goal completing the task would accomplish. This goal shouldn’t be some nebulous idea, like, get done with this chapter so I can read the next one, or, write this memo so I can be done with work for the day. Instead, think about this goal’s effect on your future.
Baumeister also cautions against the danger of leaving goals unfinished. Unfinished goals can give rise to a cool concept called the Zeigarnik Effect: The tendency to experience intrusive thoughts about an objective that was once pursued but left incomplete. Ever wonder why a song gets stuck in your head? This idea suggests its because you didn’t finish the entire song and your unconscious mind is nagging your conscious mind to complete the task. Setting and completing goals will help you overcome the Zeigarnik Effect and aid you on your path to self-regulation and stronger willpower.
There is really so much in this book, and for the most part, the results of Baumeister’s studies really “click” with the reader and won’t shock you. I was often unsurprised by the results of the various studies Baumeister conducted. Nonetheless, the results still had a profound effect because if you’re anything like me, I have trouble accepting any scientific proposition—much less implementing it in my day-to-day life—without empirical research. Suffice it to say, I have incorporated many of Baumeister’s Willpower-improving suggestions when writing, studying, and doing anything else that requires self-control.
Understandably, then, the most useful aspect of this book was the recommended techniques for improving your willpower. Thus, I’ll conclude by briefly explaining three of these strategies.
The Precommitment Strategy: Making it impossible to stray from your path by leveraging a negative emotion, such as humiliation, that would result from abandoning your goal. For instance, you could install a software like Covenant Eyes that will track your web browsing and then e-mail the visited sites to designated parties—i.e., boss or spouse. Precommitting to Covenant Eyes will institute a sense of accountability and nudge you away from visiting those tantalizing websites. This practice will eventually increase your self-control in the process.
The Orderly Habits Strategy: Engaging in simple activities like flossing, shaving, making your bed, and turning these into habits. Once you have used your willpower to make the simple habit customary, it becomes a relatively automatic mental process expending little or no further willpower. In other words, this practice leaves you with the willpower necessary to engage in more demanding tasks. To summarize, turn your little activities into automatic mental processes so that you don’t deplete your willpower reserves early on in your day or on menial tasks.
Focusing on lofty-thought strategy: Willpower has been found to increase with people who think in high-level terms—i.e., asking “why you are doing something” instead of “how you are doing something” and thinking more universally about a concept instead of more specifically. These manipulations of mental state have been scientifically proven to encourage people to pass up a quick reward for something better in the future—self-control. The reason: the right questions force you to think about the future and abstractions, which is a higher level of thinking, and this higher level of thinking enhances willpower.
So, try implementing these strategies and see if they help improve your self-control. And check out a copy of Baumeister and Tierney’s book here:
Defined as “the average measure of the efficiency of production, productivity is clearly something we all want to increase. Hopefully this review sheds some light on how to do so on a day-to-day basis.
The book I’m reviewing this week is Smarter, Faster, Better: The Secrets of Being More Productive in Life and Business, by Charles Duhigg. The author is a Pulitzer Prize winning journalist for the New York Times and author of the New York Time’s Best Seller, The Power of Habit, which spent over 60 weeks on the heralded list. In his new book, Duhigg sets forth a variety of elements that can increase productivity in your life and profession. Evoking an anecdotal-model, Duhigg looks at numerous accounts throughout history—ranging from a narrative about the Yom Kippur War in Israel to the factual background behind the Disney hit “Frozen”—to illustrate eight separate principles that can help boost productivity tremendously. Since finishing the book, I have incorporated several of these principles in my work and habits, and can personally attest to the validity of the concepts explicated in this book.
Here are the eight areas which provide the context for Duhigg’s principles: (1) Motivation; (2) Teams; (3) Focus; (4) Goal Setting; (5) Managing Other; (6) Decision Making; (7) Innovation; and (8) Absorbing Data.
I think it’s worth mentioning that the readability of this book is extremely high. The anecdotes providing the background for the principles are engaging, easy-to-follow, and relevant, so that the pages keep turning. But the book also contains a scientific-empirical aspect with stimulating concepts. For instance, the inclusion of Bayes’ Theorem and the applicability of that statistical law to every-day decision-making is exemplary of advanced concepts Duhigg evokes to illustrate his principles of productivity.
But such theoretical concepts don’t obscure the absorbable nature of the underlying principles Duhigg advocates. For an example illustrating the nature of Duhigg’s pedagogy, let’s look at the first chapter on Motivation. First, Duhigg cogently states the key principle: The first step in creating motivation is to give individual the opportunity to make choices that provide them with a sense of autonomy and self-determination. Then, he suggests how one might implement this principle into their work more easily, which would be to learn to see our choices not merely as expressions of our control but alsoaffirmations of our values and goals. This latter portion has the effect endowing our actions with larger meaning and providing fuel for our desire to take action; hence, employing this mind-set helps spur motivation. I can’t do the principle complete justice, as the book is undoubtedly more persuasive—by using research and other examples—in explaining why you should think about increasing motivation this way, but hopefully you get the picture.
The other chapters explain the essential principles in a similar fashion and Duhigg is exceedingly persuasive throughout. The combination of entertaining stories—i.e., how the comedians of Saturday Night Live and its creator Lorne Michaels are an archetype of a successful Business Team— and thoroughness of research involved in writing this book is indeed laudable. Duhigg explored many relevant scientific studies and condenses the findings into a readable form. I think this is a reflection of the duel-threat skills Duhigg embodies as a successful novel writer (The Power of Habit) and world-class reporter.
At bottom, Smarter, Faster, Better delivers in doing exactly what the title suggests, all while providing entertaining stories to illustrate the vital principles. The strength of this book is not only in the concise statements of principles that will make you more Productive, but also the easy-follow methodology of how incorporate those principles in your professional or personal life. Whether you need help focusing, making better decisions, or stimulating creativity, Duhigg’s book will provide the immediate value you need.
I also am providing an outline I created setting forth the most salient points within each chapter. While I’ve identified the key concepts in the outline and that in it of itself may be sufficient to understand important aspects of the book, the real strength lies in the anecdotal method Duhigg employs—i.e., the utilization of various real-life stories to set the stage for the fundamental principles of the book. My brief overview is a good starting point, but should not be an end in itself.
 Bayes’ theorem describes the probability of an event, depending on the happening of conditions related to the event. The core principle is this: Even if we don’t have much data on making a decision, we still have the ability to estimate the future by making assumptions and then skewing them depending on our observations of the world.
“Do not think what is hard for you to master is humanly impossible; and if it is humanly possible, consider it to be within your reach.” Marcus Aurelius
In my first post discussing the book Mastery by Robert Greene, I analyzed the Discover your Calling Stage. As you may recall, there are three other stages to Mastery. They are the Apprenticeship Stage, the Creative-Active stage, and the Achievement of Mastery. In this post, I’ll examine the Apprenticeship Stage.
Using Charles Darwin as the archetype, Greene develops the necessary requirements one must accomplish to have a successful Apprenticeship. But before doing so, there are a few big ideas Greene mentions you should remain cognizant of throughout your Apprenticeship. Chiefly, that the end goal is the transformation of mind and character—the framework of which is detailed below. Also of significance is finding work that is accommodating to an Apprenticeship; that is, one that offers the greatest possibilities for learning. Moreover, a successful Apprenticeship stage should be one that moves you towards challenges, one that permits you to receive valuable, fair, objective feedback, and one that is outside of your comfort zone. And the final big idea is the necessity of having an objective approach to your Apprenticeship, which helps develop the ability to clearly identify the type of knowledge and skill typical of successful individuals in your law practice.
With those big ideas out of the way, Greene specifies the three requisite steps for a successful Apprenticeship: (1) Deep Observation (The Passive Mode); (2) Skills Acquisition (The Practice Mode) and Experimentation (Active Mode).
In this stage, which should coincide with the initial period of work, you are cautioned to not try and impress your new employer; don’t try seek attention or to prove yourself. Greene Explains that this can work against you by stifling your ability to absorb as much as possible and by putting a target on your back. Instead, observe the attorneys in your firm.
Observation is your most valuable asset in this stage. But don’t merely observe that which makes an attorney successful on an individual level (i.e., he is great in front of a jury, or a fantastic brief writer), but also the attorney’s interpersonal relationships. For example, look at the group dynamics in the office: who has control in this firm or office, who is in charge, who can you model yourself after and work with, who is on the rise and ascending up the professional hierarchy, and, similarly, who is on the decline.
Anybody who worked as a summer associate likely made observations concerning these questions, even if not intentionally. You might recall a partner you identified as calling the shots but still sat second-chair when a bigger fish was present. Or maybe you can remember a monumental figure in the firm, responsible for so much of its success, that you could envision stepping down soon—and did you analyze the implications of this? Greene urges us to ask and ruminate on these types of questions in this passive stage, as they will be instrumental to a successful Apprenticeship.
This is the most critical stage. Here, you must be able to reduce the attorney-skills you have observed to their basic elements. In distilling these skills, make must also make sure they are abilities that can be practiced. Greene explains that the best way to understand these skills is through engaging with your model and watching them. Because humans evolved through watching others, thus developing mirror neurons, we are especially well-suited to this type of learning. Obviously, you are going to utilize the power of mirror neurons more effectively from watching an attorney orally negotiate a complex mandatory settlement conference than watching them write a brief in their office, but the idea remains the same. But to the latter point, to stimulate your mirror neurons to develop your writing skills, I suppose one could go over the brief paragraph by paragraph asking why the attorney wrote, reasoned, and analyzed in such a way.
One you have distilled these skills in a way that makes them cogent—clarity is key in this stage, you move towards practicing those skills. Upon practicing, you will eventually enter a cycle of accelerated returns, Greene says. In this cycle, practice becomes easier and more engaging, and you can practice for longer spans of time. The cycle also augments your ability to spot nuances and previously unidentifiable flaws, issues, and problems in your skills. While practicing, though, Greene warns us not to focus on too many skills at once. Just start with one you can master. I would think brief writing would be a suitable skill to focus on in the early stages of a litigation career, but your first skill might depend on the firm and legal area. In any event, as you continue to develop this skill, the cycle of accelerated returns dictates that you will begin to enjoy practicing more and more, leading to a more interesting work experience.
Here, there is one primarily goal: to take on more responsibility. Most individuals wait too long to take the experimentation step, generally out of fear. But you must push through this initial hesitation and think about ways to take on a significant challenge. You might envision doing this by initiating a project at your firm. This could be a new initiative within your practice group, where, for example, you propose an effort to compile a database of information or analytics that can develop your group’s legal strategy in dealing with certain type of cases. The end result, and goal of this stage, is that you put yourself at the mercy of the criticism and judgment of others. How you handle this judgment is vital to completing your Apprenticeship stage, as your response will reveal whether or not you are done.
Well, those are the three stages. Examine these principles and suggestions and see how you can apply them to your work. But before I leave you, Greene mentions eight strategies for completing the ideal apprenticeship:
Value learning over money;
Keep expanding your horizons by looking for new challenges that can redefine the limits of your world and build up your skills;
Revert to a feeling of inferiority and disregard preconceptions that hinder your ability to absorb as much information as possible;
Trust the process and don’t look at frustration as a negative, but a sign of progress;
Move toward resistance and pain by frequently practicing those areas you are weak;
Apprentice your self in failure and don’t be afraid of it; but make sure to learn from it. “The hit that you take to your reputation is greatly outweighed by what you learn”;
Combine the “how” and the “what” by asking how things work in your profession—i..e, how do decisions get made, how does the group interact, don’t just identify the group-dynamic, but ask why it is this way; and
Advance through trial and error.
I hope you enjoyed this review on a section of a really terrific book. I truly believe it contains valuable insight for any lawyer or knowledge worker and recommend it to anyone looking to better themselves in their field. Find it here on Amazon:
Disclaimer: I am an amazon affiliate and will receive a small commission at no extra charge to you if you decide to purchase the book from the link above.