Horatio

Horatio
[Photo by Jacquelyn Griffin)

Wednesday, May 30, 2012

Pulp Fiction

While a lot of my reading has been, in recent years, scholarly in nature--legal history and theology, especially--I still have a balanced literary diet, which must, as the late Dr. Robertson Davies would gleefully point out, include a fair amount of junk. Or, as Harlan Ellison famously called "Doctor Who," elegant trash.

Spelunking around from author to author led me to try Kim Newman's Anno Dracula, in which a thinly disguised Dr. Fu Manchu appears. Which, in turn, led me to wonder: how did this patently racist stereotype become an archetype? I mean, when I was a boy (just turning fourteen, to be precise) my father took me to see Peter Sellers, in his last role, play Fu Manchu. (Helen Mirren's in it, too, proof that great actors sometimes make bad choices.) My curiosity roused, I looked on Kindle to find that the early Sax Rohmer novels are available for virtually no cost, and read four of them.

They are, as narrative, awful, at least the first three, that is. They are episodic, serialized newspaper fiction, with clumsy links, inexplicable gaps, periods of tedium, and shifts in the action that make absolutely no bloody sense whatsoever. Conan Doyle he ain't. And Nayland Smith (he becomes Sir Denis Nayland Smith in the fourth book) is without a doubt the single dopiest leading man in fiction. He blunders from episode to episode, saved by his friend Dr. Petrie, a (beautiful, of course) minion of Fu Manchu who falls for Dr. Petrie, for no adequately explored reason, and a thumping slice of sheer blind luck that leaves Harry Flashman's generous allotment of luck at the gate, looking wistfully on. Nayland Smith is, like Harry Sullivan and all the other devil-may-care square-jawed adventurers after him, an imbecile.

And therein lies the charm.

Fu Manchu runs rings around Nayland Smith. He is by far the superior thinker and reasoner, even though he has a fondness for the over-elaborate, chancy death by exotic insect over a clean shot that makes Anthony Ainley as the Master look like a cunning pragmatist. Ultimately, Fu, and not Smith, is the star of the books.

I noticed this when, at the climax of the second novel, I was mentally berating Nayland Smith for falling into the exact same bloody trap he'd fallen into near the end of the first volume, and cursing Sax Rohmer for his lack of proper novelistic invention, when he showed he in fact possessed it, by having Fu come out and deride Smith for that exact same failure, in almost the very terms in which I'd been doing it. It was the first big laugh of the books, and, fair to say, I believe Rohmer meant it to be.

We're rooting for the villain, the "Other," the alien. All Rohmer's "Yellow Peril" racism cannot hide the fact that Fu is the character who captures the imagination, if anyone on the scene does at all. We even get glimpses that Fu might not be as bad as all that; he shows compunction at moments, saving a police inspector in the first volume, knowing full well that the man will be a minor irritant for volumes to come, because he will return to his duty. He has an open admiration for Dr. Petrie, which may be founded on a mistake (he briefly believes that Petrie is a genius like himself), but his admiration survives his realizing that such is not the case. He has, like the British gentlemen who pursue him, a Word of Honor, and keeps it, just as Nayland Smith does--in that, Peter Sellers is accurate in his depiction of both, as excerpted below. And, of course, in a later novel, it is Fu Manchu who takes on Rohmer's version of Hitler, whom Smith protects.

The books are rubbish, of course; racist rubbish, too, I'm sorry to say (although even in the earliest volumes, set around World War I, the Brits, such as Dr. Petrie, are happy to marry out of their caste in a way that undercuts the racial storyline the main narrative is at pains to construct). But there is something more to them, probably so deeply buried beneath the ruins as to be unsalvageable; an identification with the one we demonize and fear. Fu Manchu is laughable, and yet he commands respect; a distorted mirror image of the British imperialism he confronts.



Edited to Add: At least two friends have pointed out to me that I left off the "best part" of the scene directly above. So have it:



Aye, comedy is, in truth, not pretty.

Monday, May 28, 2012

Memorial Day, 2012

Every year, this is one of the days that daunts me. What on earth do I have to say to those who served, or their families who have borne losses?

Then I remember that in a very real way, every one of these soldiers is of my community, and that I owe them remembrance. That my family has, on both sides, served in wars from the Civil War to the present Iraq and Afghanistan conflicts (thank God, in my lifetime they've all come home), and that, although the members of my family who have served don't give me the right to claim any kind of standing, my love and loyalty to them are not nothing.

So, a Memorial Day post. Courtesy of our friends at Balloon Juice, here's Joe Biden, discussing loss and healing with, as the post by blogger "mistermix" explains, families "brought together by the Tragedy Assistance Program Program for Survivors, a non-profit that helps families and friends of deceased military men and women military" in a remarkably frank, and I think helpful, way:



Remember the fallen.

Thursday, May 24, 2012

Double Jeopardy Takes a Hit

The Supreme Court's decision in Blueford v. Arkansas is yet another tightening of the screw on when double jeopardy attaches. Now, to be fair, the Court's inconsistency and obvious discomfort with the Double Jeopardy Clause goes back decades, if not a century. So, in that sense, this isn't going to be another in my series of posts depicting the Roberts Court as activist judges; this is, instead, a continuation of the 50 year deflation of a protection whose contours have been at times narrower than today's rulings leave it, but which has been receding from a high water mark since I first became interested in the law.

If you don't feel like reading the full decision, linked above, the Times's summary is pretty good. To condense it still further, the Court found that a jury's deadlocking on lesser charges deprived the acquittal of sufficient finality to constitute double jeopardy in retrying the defendant, where the trial court instructed the jury to only consider the lesser charges if the jurors voted to acquit on the higher charges. The dissenters, per Justice Sotomayor, wrote that the trial court erred in not taking a partial verdict on those higher charges.

Again, it would be unfair to call this a deviation from well established precedent, or a flagrant instance of activism. It's just a continued reduction in the scope of protection against double jeopardy.

(Edited for grammar. Oops.)

Tuesday, May 22, 2012

How to Make an Entrance



That's how.

Must try it, sometime. (The Appellate Division, First Department does have an attorney coat check room...)

Oh, and this:

Monday, May 21, 2012

Expanding the Scope...

Multidisciplinary studies isn't exactly my forte. Most of my writing to date has been fairly straight doctrinal exegesis (with two forays into judicial biography). But this year seems to be the year that I'm forced beyond the narrow confines of the law.

So last year's appearance at a conference on the intersection of law and theology led me to write on the convection of legal history and theology. And later this spring/ear;y summer,Command and Coercion which involves medieval history, canon law, ancient and modern, will come out.

Now I'm delving into theology proper, with a side dish of social justice and a garnish of psych theory, rather to my surprise. I'm about 90% through with the piece, and will send to more expert friends to make sure I don't make a complete hash of their respective disciplines.

I'm enjoying the expansion of my horizons, but would prefer not to embarrass myself or my publisher.

Anyway, back to more reportage and less personalia. It's just that I'm noticing things a bit differently than usual, and am lacking patience for the political silly season.

After all, a mix of different styles can shake things up

Wednesday, May 16, 2012

Famous Last Words

Or they deserve to be, at any rate:
The word 'however' is like an imp coiled beneath your chair. It induces ink to form words you have not yet seen, and lines to march across the page and overshoot the margin. There are no endings. If you think there are, you are deluded as to their nature. They are all beginnings. Here is one.
--Hilary Mantel, Bring Up the Bodies

A brilliant ending to a brilliant book.

Saturday, May 12, 2012

Giving the Devil the Benefit of Law

Here is my favorite bit from Robert Bolt's "A Man for All Seasons":



It's a great speech--so great that it stayed with me for decades after I first encountered the play (a gift I owe the Marianist brothers at Chaminade High School). In fact, I took the title for my first publication, Giving the Devil the Benefit of Law: Pornographers, the Feminist Attack on Free Speech, and the First Amendment from that speech. The article addresses the the-hot issue of the model anti-pornography ordinance drafted by Catharine A. MacKinnon and the late Andrea Dworkin, and seeks to demonstrate its unconstitutionality. And now, it's 20 years since I published "Giving the Devil." I've published a bunch more articles--one on criminal justice, two on judicial biography, but, up until recently, mostly on freedom of speech and the First Amendment. From those articles, I came up with about half of a book, and then went and wrote up the other half, which was, mirabile dictu, published.

And then I stopped.

From 2001 through 2006, I had a First Amendment challenge to the application of obscenity law's "local community standards online to litigate,and that cut into my time for scholarship. (By the way, a little marked result of the Nitke case was that because our three judge panel declined to follow United States v. Thomas (1996), which allowed the applicable local community standard to be any community from which a government agent could visit the website in question, that decision no longer holds sway, and some connection of the defendant with the forum must be shown. Not what we were hoping for, but a slight step forward.)

But in 2007, I published another article, this time on the question of whether or not liability for creating a hostile work environment was consistent with the First Amendment. And then I really did stop. I'd said all I had to say, and didn't feel like repeating myself. More to the point, I was less interested in the questions of what the scope of liberty as against the government should be--"freedom from"--and more interested in how freedom should be used, the questions in political philosophy of "freedom to." In particular, I became interested in the question of legislating morality--Christian morality, in particular, as my own faith became increasingly central in my life. And so that's where my scholarship is now--looking at the plusses and pitfalls of religious engagement in civil life, and how such engagement effects Church and State. And, I must say, I'm finding it rich. The logical and fulfilling next step.

But looking back on that first phase--and, especially, that first piece? Well let's admit it: I was brash as hell in it. Not just in writing, too--when I found out that a response had been commissioned, and I was not to see it pre-publication, I blew my stack, and leveraged for myself the chance to respond contemporaneously. Typical of me at that stage--and I was right to do it, but could have been more diplomatic. And, frankly, I could have phrased my critique more irenically on places--although I do myself the justice of noting that I engaged with MacKinnon's and Dworkin's ideas, and not the sort of personal attacks that typified some of their critics. Still, right out of law school, I was a little self righteous. I hope I'm less so now.

But am proud of that young man, and of the passion he brought to free speech issues. And the resulting vein of writing and activism was, to my mind, well worth doing. Just as the new vein is worth exploring.

And would I today give even the devil the benefit of law?

More than ever.

[Edited for clarity]

Thursday, May 10, 2012

Robber Barons Play the Horses...

So, it seems that J.P. Morgan has drawn a unique lesson from the financial meltdown--keep on playin'!:
J.P. Morgan Chase & Co. has taken $2 billion in trading losses in the past six weeks and could face an additional $1 billion in second-quarter losses due to market volatility, Chief Executive James Dimon said Thursday in a hastily arranged conference call after U.S. markets closed.

The losses stemmed from derivatives bets gone wrong in the bank's Chief Investment Office, which manages risk for the New York company.
....
.P. Morgan, the U.S.'s largest bank by assets, said in its quarterly regulatory filing that a plan it has been using to hedge risks "has proven to be riskier, more volatile and less effective as an economic hedge than the firm previously believed."

Mr. Dimon said the so-called synthetic hedge, using insurance-like contracts known as credit default swaps, was "poorly executed" and "poorly monitored." He said that the bank has an extensive review under way of what went wrong, and that there were "many errors," "sloppiness" and "bad judgment" on the bank's part.

Trust our financial titans! No need for that pesky Volker Rule! Financial regulation bad, free market good!





Wednesday, May 9, 2012

Speaking the Truth

Bravo to Vice President Biden:



And, in his turn, to President Obama:



Tonight, Andrew Sullivan speaks for me:
I do not know how orchestrated this was; and I do not know how calculated it is. What I know is that, absorbing the news, I was uncharacteristically at a loss for words for a while, didn't know what to write, and, like many Dish readers, there are tears in my eyes.

So let me simply say: I think of all the gay kids out there who now know they have their president on their side. I think of Maurice Sendak, who just died, whose decades-long relationship was never given the respect it deserved. . . . I think of all those in the plague years shut out of hospital rooms, thrown out of apartments, written out of wills, treated like human garbage because they loved another human being. I think of Frank Kameny. I think of the gay parents who now feel their president is behind their sacrifices and their love for their children.
Yeah. Change is is coming, folks. And about time, too,

Tuesday, May 8, 2012

Dame Julian's Day

The Episcopal Church today celebrates Julian of Norwich (1342-1416), medieval mystic and counselor. She is best known for her Revelations of Divine Love, an account of 16 visions and their meanings. Julian's compassion, good sense, and love of God are tangible in her work; she's brisk, kind, and convinced, to the core of her being, that God's love is unshakeable. What I find so remarkable about her is that she starts off, like so many of the medieval mystics, half in love with death, but becomes so practical and no-nonsense after her visions--her mystical experiences make her a gifted spiritual director and guide for others. The more flamboyant and emotive mystic Margery Kempe, her contemporary, describes her visit to Julian in 1415:
[I] was bidden by our Lord to go to an anchoress in [Norwich] named Dame Julian. And so [I] did. She showed [me] the trace that God put in [my] soul of compunction, contrition, sweetness, and devotion, compassion with holy meditation and high contemplation, and very many holy speeches and fellowship that our Lord spoke to her soul and many wonderful revelations which she showed to the anchoress. [Margery wanted to know if she was deceived in her own visions, and sought Julian] because the anchoress was expert in such things, and could give good counsel...

The anchoress, hearing the marvelous goodness of our Lord, highly thanked God with all her heart for this visit, counselling [me] to be obedient to the will of our Lord God and fulfill with all her right whatever He put in her soul if it was not against the worship of God and profit of her fellow-Christians, for it is were [contrary], then it was not the moving of a good spirit, but rather of an evil spirit.

[omitted passage from original post; interpolated from Julian's Revelations]

The Holy Spirit may never do anything against charity, and if He did, it would be contrary to His own Self for He is all Charity. Also, he moves a soul to all chasteness, for chaste lovers are called the Temple of the Holy Spirit [I Cor 6:19], and the Holy Spirit makes a soul steadfast in the right faith and the right belief. And a person with a divided soul is always unstable and unsteadfast in all his ways. He that is always and evermore doubting, is like to the flood of the sea, which is moved and borne [i.e., carried] about with the wind, and that man is not likely to receive the gifts of God. What creature has these signs, he must steadfastly believe that the Holy Ghost dwells in his soul. And much more when God visits a creature with tears of contrition, devotion, or compassion, he may and ought to believe that the Holy Ghost is in his soul.
(This modern translation gets the sense of The Boke of Margery Kempe, Ch. 18:954-975)

If that's not a textbook example of spiritual direction done right, what would be? Julian, asked by Margery if her voices and experiences are real, asks: Do they lead to peace, stability, charity? Do they lead to security in God's love and a reciprocal love for God, as well as a practical, real world active love toward one's neighbors? For Julian, the gifts of the Spirit are known by their fruit.

Some years I write about Julian's visions--the hazelnut, "all will be well," "Christ our mother"--so much riches there to choose from. But in this time of flux in our nation, in our Church, and even in my own discernment of vocation--Julian's questions as to discerning the will of God speak to me most vividly.

Friday, May 4, 2012

My Favorite Inscribed Book

If we're lucky, we have mentors in our lives. I've had several, but, in shelving some books (and highsmithing--that is, covering the dust jackets with transparent plastic sheeting to protect them), I ran across a very tangible memento of one of my law school mentors. Charles L. Black was a brilliant scholar. He was a poet. He was also passionately committed to the U.S. Constitution and its ideals. Professor Black was awe-inspiring until he lured you into relaxing; he was available to students in ways that had nothing to do with grades:
After Louis Armstrong died in 1971, Black held an annual "Armstrong Evening" at Yale. He spun 78 r.p.m. records from the 1920s and 1930s and shared reminiscences with the students who were delighted to take over the faculty lounge for this memorable event.
Students also learned from Black's wonderful mix of down-to-earth practicality and dreaminess. As he put it, "We talk about the protection of our fellows from the suffering and indignity of want as though it were a matter of taking Mount Rainier under one's arm and jumping over the Pacific Ocean, when in fact it is a matter of deciding whether or not to help a frail person lift something that we can ourselves lift."
I attended some of those evenings, and was introduced to the early Armstrong--the Hot Five and Hot Seven years, especially. Law came up incidentally; class not at all. It was education in the deepest sense of the word. (To understand the importance of Louis Armstrong to Professor Black, read his My World With Louis Armstrong.)

Much of my pro bono work, and my scholarship, has been impacted by this man and his teachings. As the linked article quotes him, Professor Black "learned the instrument at the age of 10 from a 75-year-old former slave named Buck Green, who, he would say, 'still plays harmonica through my mouth.'" I can't claim that level of connection. But Professor Black's world view changed mine, and I take pleasure in referencing his work, because the deeper debt cannot be acknowledged--some of what he taught me is so mixed into my own thinking that I'm not always aware when a notion of my own is shaped by him.

So, this memento? One of Professor Black's works, The Humane Imagination (1989). A series of articles he wrote about law as justice, law as art, the roots of law. Only Charles Black could find poetry in admiralty law. Or, in "My World With Louis Armstrong," make the spiritual dimension of the law, its occasional opportunity to aid human growth and even redemption, sing. Anyway, I asked him to sign my copy. Here's what he wrote:

He valued his students, and I value him to this day.


Thursday, May 3, 2012

Another SNAP Discovery Update

In view of my previous post regarding the further third-party discovery ordered against SNAP by the court, I am glad to report that SNAP has posted a copy of the April 26, 2012 court order mandating further deposition testimony and document production by SNAP. A less technical account of the order's contents may be found here.

The order itself is a mix of standard housekeeping--requiring privilege logs for documents claimed to be privileged, requiring the parties to agree to a Protective Agreement that will allow for the sealing of confidential records, ordering SNAP to search for responsive documents to requests it did not do so before--all this is fairly commonplace.

As the Kansas City Star summarizes:
The records in question are almost identical to those she ordered Clohessy to produce at a January deposition, including documents in SNAP’s possession related to the diocese. They also include press releases and correspondence with reporters, the plaintiff and his lawyers, and members of the public.

She also ordered SNAP to produce correspondence with the public on the topic of “repressed memory,” but only as it relates to cases involving the local diocese. Earlier, defense lawyers had asked for all repressed-memory correspondence without any limitation.

Mesle also narrowed the focus of the document request slightly, saying records must pertain to “sexual and other misconduct of priests.”
A few wins for SNAP in the order, as well--names and identifying information about non-plaintiffs who sought information or assistance from SNAP is protected from discovery. The court ordered production of eight categories of documents from SNAP, some of which are clearly germane if SNAP has any responsive documents, and several of which go beyond the case, plumbing into SNAP's reportage of alleged abuse or other wrongdoing by priests in the diocese, even not involving defendants in the case, cases of alleged repressed memory by victims from within the diocese (the defendants wanted cases nationwide, for reasons that are, frankly, unfathomable if one is looking for relevant discovery). In general, the court did a reasonable job, except as to allowing discovery into SNAP's drafting of press releases, communications with the press and public--remember, SNAP isn't a party here--and in allowing discovery into non-parties'comunications with SNAP. The legitimacy of such discovery is not apparent to me, and I've done a fair amount of discovery in my time.

Wednesday, May 2, 2012

One Last Walk-and-Talk

I admit it, I like this little PSA far more than it deserves.


Really, I miss this show. It ended well, and I'm looking forward to Sorkin's Newsroom, but The West Wing was the anesthetic that got me through the second Bush Administration. I doubt it will ever be matched.

Tuesday, May 1, 2012

Bad King John


I've been on a bit of a tear lately about the Plantagenets--Henry II, Richard I, and my namesake, poor old John Lackland. It all started with my background research for "Command and Coercion," which is, I am glad to say, in the final stages of editing. But reading about Henry II is addictive--his personality--like that of his antagonist Thomas Becket--is compellingly presented in contemporary materials that his modern biographers have a plethora of material to work with. (Becket's correspondence, as translated by Anne Duggan makes for compelling reading). And when you're done with him, what can you do but read further, to see what happened to the rest of the cast?

Richard Coeur de Lion is the stuff of legend, and, poor old John (some of his enemies called him "Softsword" for being willing to negotiate; how do you not feel for the guy?) had to follow the most able and the most valiant king, respectively, of medieval times. Daunting, what? All of which has interested me in John. His capture of his rebellious nephew Arthur argues that he was capable of the Angevin speed and powerful attack tactics created by his father and perfected by Richard; his dry wit sometimes comes through in the chronicles, even though the monks' disdain for the king is patent. But who was John?

Well, I'm checking that out through several sources. First, W.L. Warren, author of what remains the definitive biography of Henry II, also has written a life of John. And the marvelous New Interpretations series from Boydell & Brewer, which allowed me to update my awareness of Henrican scholarship has also put out a volume of John. I'm also planning on reading Kate Norgate's classic history of the Angevins, and, as a lark, I'll give James Goldman's Myself as Witness a try.

I doubt this will lead to any new writing; it's just to scratch my itch to know the facts, insofar as they can be known.

Oh, and proof that you can't improve on Katherine Hepburn and Peter O'Toole:



Count me with Jed Bartlet.