Easter Sunday

(Video by my friend, the redoubtable Tim Martin; "Christ Our Passover" by William McFarlane performed by the St. Barts choirs led by the inimitable William K. Trafka)

I don't feel I have the wit or wisdom to better this; from Charles Gore, The Deity of Christ, Sermon II (1921):

There is no tragedy in the world more moving than the tragedy of the failure of these disciples' faith. We ought not to be amazed at it: it is the same with innumerable human souls. What is it that makes faith difficult, that glorious faith of the Bible and the church? Well, it is the oppressive sense of weakness in our own souls and in the world about us. These glorious promises seem to come up dead against a brick wall. The brick wall which seems to resist this faith is the brick wall of seeming failure within and without, and the appalling weakness of God and His cause. So it is that there are multitudes—both orthodox and unbelieving multitudes—whose faith (in the real sense of faith) has failed under this tragedy of God's seeming weakness. The cry of Christ, "My God, my God, why didst thou forsake me?"—the utter seeming failure and shame is too much for them. They cannot believe in Him; they cannot see the glory hidden in the suffering Christ. So it was with the disciples.

And then you know how the great tranformation came about. He rose again the third day from the dead. On that third morning they found the tomb empty. I think, if you are prepared to believe in God and in history, you must believe that they found that tomb empty. And more than that, you must believe that, only a few weeks after the desperate failure of their courage and their faith, you find that same band of men quite tranformed in spirit. They were not imaginative men, not visionary men, but sturdy working men of an unimaginative kind, as the records show us; and they were men differing in character, given to jealousies among themselves, which Jesus rebuked. Well, this whole group you see in a few days totally transformed, from the weak, vacillating failures they had proved, into a group which can confront the world for a seemingly impossible task with unswerving and undying courage.

What was it that had brought about the great change? They all gave the same testimony. This change in themselves had been wrought by an experience which had forced itself upon them—the experience of the appearances of the Risen Jesus. The tomb was empty; they had wondered; but He had come among them here and there—not as in His old natural body when He had lived in one place, in Jerusalem or Galilee, and had walked from place to place like any other man, but as one who had passed to a higher sphere and yet could materialize Himself amongst them so as even to eat and drink with them. And it was all with one object—to make it clear that through failure and through death He was risen, and was passing to the glory of God at the right hand of the Father. And so at last they saw Him go, and they faced the world with a frank, indisputable courage bred of the conviction that "Jesus was Lord."

May all of us who follow the Way be likewise strengthened and emboldened this Easter Season.

New Life

Alas, I was somewhat under the weather, and so have no great anecdotes today. But la Caterina had an errand of mercy to run today, and detoured so that I could see the beneficiaries of her efforts:



I feel a bit like the last little fella, but, let's be frank, any day that starts off with seeing such lovely little creatures, and knowing that their futures are safe, can't be all bad.

And tomorrow, the Widor Toccata.

A Super Natural Tail

As you may have picked up from reading the blog, la Caterina runs a feral cat colony at the Brooklyn Navy Yard as part of the NYC Feral Cat Initiative. (I'm just "Thog, lift!" in this enterprise.) We also have a couple of cats in the back yard we feed, having had them neutered and ear-tipped, so that if they are ever seized, Animal Control or any shelter will know they are part of a colony and not ice them. One, a gentle orange tabby, was originally named Popeye, but for some daft reason I renamed him Mr. Popplethwaite. The other, a beautiful little black cat with a white spot where a lady's locket would fall, la Caterina named Elvira. While very sweet to people, Elvie is a shrew to other cats, and beats up mercilessly on Popples. We decided that the situation couldn't go on.

As luck would have it, a friend of ours who lives in the Bronx was interested in Elvie, and Wednesday night, la C drove Elvie up to her new home. Popplethwaite kept looking around for Elvira, and even called for her a few times (masochist!) but eventually settled down.

This morning, la Caterina urgently called me to the window where we beheld Popples--accompanied by a small black cat, with a a white spot where a lady's locket would fall. I heard myself call out, with a sudden Welsh burr to my voice, "Audrey Rose! Audrey Rose!"

Alas, she slipped away into the next yard....

The Limits of Advocacy

The commentariat on today's oral argument in United States v. Windsor is inclined to view DOMA as in deep trouble--whether libertarian, right, left or center. Five justices seemed deeply troubled by the federalism aspects of the statute (Congress, which has no power to define marriage, long a creature of state law) nonetheless refusing to recognize the marriages recognized by some of the several states. Also, the justiciability questions--whether the Federal Government could demand a ruling where it had come to agree with the plaintiff, and whether Congress had a right to defend a statute the Executive confessed to be unconstitutional--were given serious consideration, and seemed to have real traction with several members of the Court. So taken all in all, and recognizing that oral arguments and questions asked at the same are not always indicative of how the Court will rule, I am cautiously optimistic that this unjust and indefensible statute will be overturned, and not before time.

But that's not why people read this blog (to the extent you do, and thanks for that). I'm not a tea leaf reader, and the near unanimity of the commentariat doesn't require me to pretend to be one. So let's talk about something more interesting than speculation: the limit of what good lawyering can do. Because that's what was on display in this argument (audio here). Now, former Solicitor General Paul Clement is not a favorite of mine, but let's be frank; he's a first rate lawyer. So it was fascinating to watch him, again and again, forced to break ground--reluctantly falling back from the positions he wanted to advance, with the Justices repeatedly refuting his contentions. He wasn't the only one, mind you, but it was encouraging to watch this formidable advocate begin to wilt.

This happened on both the justiciability portion of the oral argument, but Clement was especially bloodied up in the merit section. For me, the key exchange was this:

MR. CLEMENT: The other point I would make -- but I also ventually want to get around to the animus point -- but the other point I would make is: When you look at Congress doing something that is unusual, that deviates from the way they -- they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity.

Up until 1996, it essentially has it both ways: Every State has the traditional definition. Congress knows that's the definition that's embedded in every Federal law. So that's fine. We can defer. Okay. 1996 -­

JUSTICE KAGAN: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting. This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis for the statute? And so, sure, the House Report says some things that we are not -- we've never invoked in trying to defend the statute.
But the House Report says other things, like Congress was trying to promote democratic self-governance. And in a situation where an unelected State judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the States -- for the other States and for the Federal Government by borrowing principle, it makes sense for Congress -­

JUSTICE KENNEDY: Well, but your statute applies also to States where the voters have decided it.

MR. CLEMENT: That's true. I -- but again, I don't know that that fact alone makes it irrational.

(Tr. pp. 72-75) (emphasis added).

Now, think about this for a minute. Clement has been forced to retreat from his basic contention that the legislative interest Congress sought to serve in enacting DOMA was that of creating "uniformity" as to how federal benefits were distributed among states which have different definitions of marriage. Now, because he's very adroit, he tries to minimize the adverse effect of the House Report, attributing it to "a couple of legislators" as opposed to being, as it in fact is, the formal explanation by the drafters of the meaning and intent of the statute they enacted. But he's taken a big blow--discriminatory animus has been conceded; enough to invalidate the statute under Equal Protection if you apply all but the most lax review, and even then only if you find a rational non-discriminatory basis for the statute. Clement adds another--to encourage democratic self government among the states--only to have Kennedy rip it apart with one line.

So he's down to uniformity again, only Justice Kagan had damaged that pretty lethally by pointing out that the uniformity at issue has historically been letting the states define it, and then Clement was forced again to give ground:

JUSTICE KENNEDY: Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.

MR. CLEMENT: And it doesn't have the authority to regulate marriages, as such, but that's not what DOMA does.

Well, it does if, as Justice Ginsburg pointed out to laughter, create two types of marriage, "two kinds of marriage, full marriage and the skim-milk marriage.” In the name of federalism, DOMA dilutes the power of states to define marriage while arrogating to Congress a power to define it which its defense counsel acknowledges it doesn't have.

That he is so formidable an attorney, and yet the foundations of his argument crumbled so completely today just shows that William O. Douglas's remark that oral argument never wins cases but often loses it continues to have validity. And the old lawyer's adage that you are only as good as your case still holds sway.

The case was argued quite ably on all sides (though the Bench clearly does not like Solicitor General Verrilli). But Clement has had a bad day; one attributable to the case , not the lawyer. He did the best he could with what he had. Glad though I am to see his position thoroughly routed, I know how he must feel tonight.

A=A, or, a Constitutional Lawyer Looks at Somebody Else's Oral Argument (Tuesday Evening Quarterbacking Edition)

[Slightly Revised in Section 2]

So, today's oral argument in Hollingsworth v. Perry (which you can hear here) involved Ted Olson, famous (or infamous) conservative legal luminary, U.S. Solicitor General Donald Verrilli, and Charles J. Cooper, representing the petitioners, supporters of California's Proposition 8. Now, rather than rehash the arguments (a pretty good precis is here), I thought I'd highlight a few key features that I haven't seen addressed in even the better commentary, which is, understandably enough, focused on trying to predict an outcome. Tea-leaf reading is inherently dangerous, though, so I thought I would look more at themes in the by-play between the bench and the bar.

1. A=A: Turning an Argument Turtle

A recurring theme in the argument on the part of several justices (Alito, Roberts, Scalia. Even Breyer, Ginsburg and Kennedy noted it as an irony) was that the challenge to Prop 8 was essentially unfair to the state, because California was, the challengers argued, unable to assert the grounds for the traditional definition of marriage that a less pro-gay state could. In essence, the troika argued, California was being punished for creating civil unions, adoption by gay couples and otherwise seeking to give all the practical benefits to same-sex couples as received by heterosexual married couples save the name of marriage.

Now this contention was in fact a very clever subversion of the fact that the Prop 8 proponents had, before the District Court, abjectly failed to provide any evidence--expert or not--for the constitutional amendment that overturned the Supreme Court of California's interpretation of the California Constitution's guarantees of Equal Protection and Due Process as encompassing a right to equal access to marriage. That ruling, itself an adequate and independent state law ground, immunized the 2008 In re Marriage Cases from federal court review, despite which fact Chief Justice Roberts put the onus of "a change by California Supreme Court of an institution since time immemorial." (Tr. p. 56) As Roberts himself noted, though, the decision to exclude gays and lesbians from the status of marriage came about "only because Proposition 8 came 140 days after the California Supreme Court issued its decision." (Tr. p 55) Roberts' view of the "change" rests on an unspoken assumption that the California Supreme Court's ruling is not well-dfounded in that state's law, over which neither he nor his Court has no constitutional authority, a concept well recognized since Erie v. Tompkins (1938):

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.

The point is, that, having enacted statutes inconsistent with each of the alleged bases for limiting marriage to heterosexual couples, the State (through the individual Prop 8 supporters who defended the amendment) could not compile a record establishing a rational, non-discriminatory basis for the constitutional amendment stripping same-sex couples of their state law constitutional right, as authoritatively declared by the state's highest judicial authority. I think both Olson and Verrilli handled the point rather well, but I was surprised that the justices were so amenable to an analysis which flipped the lack of a neutral, non-discriminatory basis for Prop 8 into a liability.

2. A=A Redux: The Deceitful Pause Button

A similar low point in the intellectual analysis occurred in Cooper's initial argument and his rebuttal when he referred to Prop 8 as "hitting the pause button." As Verrilli emphasized, that's really not true at all; by enshrining the exclusion of same sex couples in the state constitution, Prop 8 is not a mere statute which can be repealed through normal processes. While Justice Alito pointed out that the California Constitution has been amended 500 times--dramatically more often than the federal Constitution, as is par for the course, as "[t]here have been almost 150 state constitutions, they have been amended roughly 12,000 times"--Prop 8 made repeal as hard is as possible under California law, and was designed to do just that, and elevate the proposition to one of fundamental value. The fact that it isn't as hard as amending the U.S. Constitution isn't really an argument that it's just a pause; it just speaks to the limits of a ballot initiative where a subsequent initiative can be brought. ETA: In that way, this case is much more like Romer v. Evans, in which a state constitution was amended by popular initiative to strip gays and lesbians of local anti-discrimination protections, a state action the Court found to have no rational basis other than a discriminatory intent to raise barriers to their full political participation. As in that case, here too gays and lesbians were set a constitutional barrier to securing legislation applicable to no other class in society. Notably, Justice Scalia, who purports not to be anti-gay, but to believe that the legislative process is the only appropriate way to secure reform, dissented in Romer.

And here is where I must strenuously disagree with Andrew Sullivan's long-held view that " I’d like to win this in the most enduringly legitimate way – in the democratic process, where we are winning more quickly than some of us ever dreamed of."

I'm sorry, but I think Andrew here is thinking like a Briton, schooled in Parliamentary supremacy, under which "Parliament is the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change." And the UK has, much more so than the US, managed to constrain itself though tradition and informal mores from constantly undermining the stability and predictability of law. But, even with the constraints of a written constitution, we have often set fundamental rights at naught. And we have, as a nation, long recognized that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." As de Tocqueville noted in Democracy in America, "If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force." He then quotes Federalist No. 51:

"It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger: and as, in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so, in the former state, will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that, if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of right under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.¯

Sullivan's faith in legislation is admirable, but reflects a certain naiveté that the Framers, de Tocqueville, and our greatest jurists have avoided.

3. Finale: The Originalist Dog that did not Bark, but Whined

Finally, let me cite an exchange between Scalia and Olson:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

Again, this is why Scalia's originalism is ultimately lacking in intellectual rigor, or even consistency with his own methodology of interpreting statutes; as I have previously pointed out:

Scalia applies the [constitutional] principle to a specific issue the drafters of the 14th Amendment mght be presumed to find shocking, and uses that specific application to denude the text of its meaning. Scalia privileges his hypothesis over the text, applying what he believes some unknown and unasked portion of the drafters (or ratifiers) or both of the Amendments as to the specific issue to be decided in 2011, an an issue which they did not consider or opine on. He is also assuming unanimity, and ascertainability of that intent. None of these assumptions is backed up. Moreover, Scalia is ignoring the fact that people often draft legal instruments more broadly than they intend--and the omissions are enforceable.

Just as was his infamous interview declaring the 14th Amendment's Equal Protection Clause inapplicable to women, so too this bit of dialogue is an effort to create uncertainty in the text by drawing Olson into a debate over an application its Framers did not foresee, and privilege what he believes they would have thought on the social issue of our day, with their 19th Century sensibilities. The fact that Scalia has to ignore his own prior reasoning that "Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent."

And equal = equal.
A=A.
QED.

"Money Talks,--"

When I was a law student, working in the summer between first and second year at the office of a criminal defense attorney (he had an associate, so technically not a solo), we would get the National Association of Criminal Defense Lawyers' journal, "The Champion." In it, the pseudonymous "Winston Schoonover" (the inimitable Charles Sevilla) published a column titled "Wilkesworld." The columns formed the basis of Wilkes: His Life and Times, an uproarious novel depicting of the life of John Wilkes, a blustery, ruthless, brilliant attorney, who vigorously (sometimes a little too vigorously, as witness his leading a riot in the Tombs, in the very first chapter). Wilkes worked hard, took risks, and charged very, very high, terming a fee discussion a "walletectomy."

I thought of Wilkes in reading about Adam H. Victor's counterclaims in a fee dispute with his former attorneys, DLA Piper:

They were lawyers at the world’s largest law firm, trading casual e-mails about a client’s case. One made a sarcastic joke about how the bill was running way over budget. Another responded by describing a colleague’s approach to the assignment as “churn that bill, baby!”

The e-mails, which emerged in a court filing late last week, provide a window into the thorny issue of law firm billing. The documents are likely to reinforce a perception held by many corporate clients — and the broader public — that law firms inflate bills by performing superfluous tasks and overstaffing assignments.

The internal correspondence of the law firm, DLA Piper, was disclosed in a fee dispute between the law firm and Adam H. Victor, an energy industry entrepreneur. After DLA Piper sued Mr. Victor for $675,000 in unpaid legal bills, Mr. Victor filed a counterclaim, accusing the law firm of a “sweeping practice of overbilling.”

Mr. Victor’s feud with DLA Piper began after he retained the firm in April 2010 to prepare a bankruptcy filing for one of his companies. A month after the filing, a lawyer at the firm warned colleagues that the entrepreneur’s bill was mounting.

“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a partner at the firm.

Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.

“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

A DLA Piper spokesman said the firm did not comment on pending litigation.

The quoted e-mails are quoted from an affidavit from Victor's counsel seeking leave to amend his counterclaim and asserting new causes of action against DLA Piper.

I don't know the rights or wrongs of the matter between DLA Piper and Victor; people often write remarkably stupid things thinking they're being funny, or demonstrating bravado, and it's possible that that is all that happened here. But the fact of the dispute and the insouciant air of the e-mails draws attention to a real problem; as Professor William G. Ross of Cumberland School of Law is quoted "the billable hour creates perverse incentives.”

The e-mails are adduced as evidence of unethical practices known in the trade as "churning" and "featherbedding." The Times cites a survey of 250 lawyers in which "more than half" acknowledged churning, that is, "perform[ing] pointless assignments — like doing excessive legal research and extraneous document review or filing frivolous motions — to increase their billable hours." Professor Ross, who conducted the survey, is quoted as drawing attention as well to the problem of featherbedding, that is, "throwing armies of bodies at every problem." Both are charged in Victor's counterclaims, with e-mails in support.

The billable hour has long been seen as an easily abused metric for payment. (From the perspective of the junior associate lawyer, it's drawbacks also exist, in the form of unending days trying to meet the annual requirement.) A useful account of the problem, and of the difficulties besetting any non-regulatory solution is here. For what it's worth, in view of the fact that my own last billable hour experience was long ago and in an era far away, I distrust it, based on just the perverse incentives cited by Professor Ross.

Wilkes, by the way, charged high fees, but didn't feather bed or churn; he did not bill by the hour. Of course, he had the advantage of being fictional.

Sunday of the Passion

From "The Atonement" by Arthur Lyttleton, in Lux Mundi:

Even we," says St. Paul, "which have the first fruits of the Spirit", even we are waiting for the further process, for "the adoption, to wit, the redemption of our body." And the process consists in so following "the Captain of our salvation" that, like Him, we accept every one of those sufferings which are the consequences of sin, but accept them not as punishment imposed from without upon unwilling offenders, but as the material of our freewill sacrifice. From no one pang or trial of our nature has He delivered us, indeed, He has rather laid them upon us more unsparingly, more inevitably. But the sufferings from which He would not deliver us He has transformed for us. They are no longer penal, but remedial and penitcntial. Pain has become the chastisement of a Father who loves us, and death the passage into His very presence.

(pp. 254-255).

In the current Anglican Theological Review, there is a series of essays on the atonement, focusing on the penal substitutionary and honor of God theories, with which I have been grappling since almost the inception of this blog. The last step of my 2013 Lenten practice: This week I will read these essays, and Lyttleton's essay, as charitably and as receptively as I can.

Good Friday is coming; some serious thought and prayer on its meaning is warranted, and not just from those with whom I know I agree in advance.

Bully for the Bully

So, let me just say, I despised David Mamet's writing long before it was cool (if it is yet), and decades before his political turn to the right. No, I despised his writing from my very first exposure to it, in a course on Modern American Drama at Fordham College in 1986. In the class, we read several of his plays, his Pulitzer Prize winning Glengarry Glen Ross to American Buffalo, as well as The Duck Variations and Sexual Perversity in Chicago. I cordially loathed each and every one of them, and was fairly vocal about it in class. I loathed his celebration of bully-boy male braggadocio and casual acceptance of cruelty, and I never believed any one of the critics who swore that Mamet was satirizing these attitudes.

[Let me drop a footnote and state that when working to adapt someone else's work, or work with pre-existing characters, Mamet's talent was often quite impressive; his screenplay for The Verdict transmuted a legal potboiler into something more, and his "A Wasted Weekend" episode of Hill Street Blues was a superb riff on that show's themes and pre-existing characters; I also have a soft spot for The Untouchables. Hannibal sucked, but less remorselessly than the source novel, so Mamet gets a directed verdict of acquittal on that from me.]

His work since the 1980s has, if anything, increased my distaste for Mamet's writing, by adding a generous dollop of misogyny; after seeing and reading Oleanna, it is very difficult to view the self-blaming victims in "Sexual Perversity" as ironic, or merely of the time, or, for that matter, Charlotte Rampling's Laura in The Verdict, who is darker than the character in the book, and much more defined by her sex.

So it's not exactly surprising to read Matt Zoller Seitz on the Mamet written and directed Phil Spector:

It’s an exceedingly strange movie. It genuinely seems to believe its title character, cantankerous, spaced-out record producer Spector (Al Pacino), who’s on trial for blowing a woman's brains out, when he yammers about all of the musical celebrities that lived more sordid lives than he did but were forgiven their transgressions and canonized as pop-culture legends anyway.
Spector is thus transformed into an Ayn Rand hero, the Howard Roark of overdubbing, a genius besieged by parasites; incredibly, the movie doesn’t seem to be kidding. The various women who testified to his misogynist mentality, hot temper, controlling personality, and love of guns during Spector’s first trial are abstracted by being shunted offscreen, the better to let Spector and his defense team (led by Helen Mirren’s Linda Kenny Baden, who represented him in his first murder trial, which ended in a hung jury) tarnish them as gutless nobodies who would never have dared to publicly defame Spector if he weren’t already tarred as a woman-hating killer by the press. (“They came out when it was in their interest to come out!” Spector rails.) And the culture as a whole is depicted as appallingly ungrateful for failing to balance Spector’s personal flaws against his achievements as a record producer and … what? Believe his ridiculous story about the victim, nightclub hostess Lana Clarkson, ending a date with him by sticking a pistol in her mouth and pulling the trigger?

It's also no surprise for me to read that Mamet has trampled the evidence to posit Phil Spector as innocent victim. Mamet always likes to stack the deck in favor of the man over the woman, even, it seems, if she's dead, ad the evidence points squarely at him.

"A Chicken Ain't Nothing But a Bird"

So says the great Cab Calloway:



However, try telling that to our cats.

All seven of them (the original Brady Bunch--my three, her three--and cousin Oliver, who came in from the back yard) prick up their ears and swarm toward us when the smell of chicken pervades the kitchen. Giles T. Katt, my senior cat, and the Watcher who protects against bullies and enforces order, gets particularly exited, his tail visibly vibrating with the thrill.

It's pretty adorable of course, but good luck to us trying to eat our own chicken.

Nothing but a bird? Not in this house.

Follow Up and Good Cause Alert

For those who read my post in January about the murder by strangulation of my law school classmate Theresa Gorski, you should know that there is a fundraiser for her children tomorrow evening:

Thursday March 21st, 7:30 - 9:30, W@tercoolerHub, 21 North Broadway, Tarrytown. Join us for an evening of fun, fashion and fundraising to support the children of a local family who lost their mother to domestic violence.

Admission is free, enjoy a glass of wine from Grape Expectations and the company of good friends. Silent auction and raffle: win gift certificates and amazing swag from local stores, services and restaurants, including the Tarrytown House, Flying Fingers, ShayLula, Au Naturel, Elite Hair Design, Salon 2000, the Tapp, Sweetgrass, Santa Fe and many more. For full list of donors, please visit:

http://on.fb.me/153kSGa

Buy gently used and vintage garments and accessories from Tahari, Coach, BCBG, Max Studio, Eileen Fisher, Calvin Klein, and more. Designer looks for thrift store prices.

So very sorry for the late notice, but I just found out about the event this afternoon, thanks to a comment on my earlier post by Dorothy Handelman (whose blog is worth a visit).

If the notice is too short, or the distance too far, please consider making a donation:

The children of Theresa Gorski have suffered a deep and lasting sadness from the tragedy that tore apart their home on January 5, 2013, resulting in the death of their mother. Friends, colleagues, and neighbors have been deeply affected by Theresa's death and want to help in some way. With guidance from Pace University's Women's Justice Center, they have established a fund in Theresa's memory to help provide financial support for her two young daughters. All donations will be contributed to the Howson Children's Fund and used for the girls' living expenses. Any amount of support will be most helpful at this difficult time.

You can also send a donation and/or condolences directly to the following address:

Howson Children’s Fund

c/o Jo Anne Gorski

P. O. Box 4552

Danbury, CT. 06813-4552

Please note that the online site does take a processing fee from each donation. Thank you for your support.

You can read more about how Theresa's sister Jo Anne has stepped up to raise her sister's children in this article. I can't re-hash it for you; seeing Theresa with her children, sister and mother in the pictures accompanying the article is a wrench--so much the same and so different from how I remember her! The hints of further horrors leading up to her death chilled me, as did the revelation that the older girl (8 years old) seemed aware of something wrong in her household causing her to "go silent."

The article reports:

[Jo Anne] Gorski described her sister, five years her senior, as “incredibly brilliant” – she graduated number one in her class from Georgetown with a 4.0 GPA. She was a nature and animal lover, a reader, and a great benefit to the children coming through the Legal Aid Society where she combined her two post-graduates degrees in law and social work from Columbia.

The Bronx Legal Aid Society agrees and will be honoring Theresa on March 8 with a special ceremony involving poetry readings, music, and a very special tribute: the Family Court Childcare Center which attends to children whose parents are in court will be renamed the Theresa Gorski Children’s Center in her honor.

Even more special: Theresa's daughter plans to play the violin that day. The 8-year-old has been playing violin since the age of 3 by the Suzuki method, which often required a parent in attendance at sessions, an active role Theresa played for years, Gorski said.

May these little girls, their aunt and grandmother begin to heal. And may this fundraiser help Jo Anne Gorski in the heroic undertaking she has shouldered. And may these lives which have been wrenched so cruelly awry be made whole.

"Bailing In" the Blameless

Updated March 24, 2013

Let me preface his post with a word of caution; I am nobody's "go-to" guy on economic stories, and don't pretend to be. But watching the day's events in Cyprus is truly appalling. It's a skewed and distorted example of a principle found in the European Commission's June 2012 proposal for a framework to address credit failures, which created a "bail in" tool. As Graziella Marras summarizes:

The European Commission proposal would give resolution authorities the power to write down the claims of unsecured creditors of a failing bank and to convert debt claims into equity. Some liabilities would be excluded (e.g., secured liabilities, covered deposits and liabilities with a residual maturity of less than one month), but, crucially, the proposal would set minimum amounts of bail-in debt required for the balance sheet of each bank, which would be proportionate to the riskiness of the bank or the composition of its sources of funding — the European Commission mentions 10% of total liabilities as a possible level in the explanatory memorandum accompanying the directive. The European Commission even envisages cases where resolution authorities could use the “bail-in tool” and write down debt instruments without having exhausted shareholders’ claims.

This is a radical departure from the bailouts during the financial crisis, where only shareholders were wiped out. Some countries, such as Spain and the Netherlands, are anticipating EU resolution regulation. In the bailout of its savings banks (or cajas) in 2012, Spain decided to inflict losses also on preferred shareholders and unsecured bondholders, including many retail investors. In the recent nationalization of SNS REAAL in the Netherlands, unsecured bondholders were wiped out together with shareholders.

However, the European Commission proposal explicitly exempted from being drawn into "bail in" provisions "covered deposits," including those which fell under the 100,000 EU insurance limit (parallel to the FDIC guarantee).

Instead, in negotiating the Cyprus bailout, the EU, the European Bank, and the IMF have required as a cost of the bailout of Cypriot banks that some of the bailout funds be exacted from "the people who put money in Cypriot banks. Deposits of €100,000 or less would be subject to a 6.75 percent levy, and any deposits greater than that could be taxed at a rate of 9.9 percent." However, "the bailout deal [is] the first in the euro zone to include a “haircut” from bank depositors. The proposal is especially painful because Cypriots’ deposits are supposed to be insured by the government, meaning that depositors are guaranteed the right to withdraw whatever they put in. Obviously, that would no longer be possible if deposits are subject to a levy."

Now, Cyprus's need for a bailout is actually a spillover from the plunge into debt of its banks, itself a result of the crashing Greek economy; as the Washington Post explains, "Cyprus’s banks sustained a heavy hit when they were forced to write off large portions of their loans to Greek banks and holdings of Greek government bonds as part of a bailout of that country last year." So, because of the terms imposed in bailing out Greece by the same parties dictating the terms of the bailout of Cyprus, small depositors in Cyprus will be forced to underwrite the bailout. According to The Economist's Schumpeter blog, the inequity of the deal is clear: "there is no moral imperative for whacking Cypriot widows and leaving senior bank bondholders untouched, as appears to be the case here; or not imposing any losses on sovereign-debt investors in Cyprus; or protecting depositors in the Greek operations of Cypriot banks, as has also happened." Moreover, it's especially painful as Cyprus was, prior to the financial crisis, running surpluses. So this really represents an extreme case of moral hazard--the commercial investors in banks (bondholders) are being protected from the risks they assumed, while the small depositors who in good faith believed that their deposits were "safe in the bank" are having their property expropriated to recapitalize the banks themselves.

The Cypriots are understandably livid. As BBC Financial Editor Robert Peston explains:

Reform of how to mend broken banks, which has been negotiated globally and in Europe since the Crash of 2007-8, has been based on two central principles.

First, that the savings of ordinary people should be protected, up to a high threshold - or 100,000 euros in the European Union for example.

And that financial institutions which lend to banks by buying their bonds should incur losses when banks are bailed out: bondholders should, to use the jargon, be bailed in, as part of resolution plans.

The logic behind these tenets is simple: financial institutions ought to be sophisticated enough and informed enough to assess the risks of lending to a bank, and therefore deserve to be punished when their judgement is awry; most of the rest of us can't possibly know if our high street banks are making reckless gambles.
....

So what is seen by many as profoundly shocking about the terms of the rescue of Cyprus by the rest of the eurozone and the International Monetary Fund is that both of these principles have been broken.

Retail savers are being punished, by a levy of 6.75% on savings up to 100,000 euros.

And bondholders aren't being touched.

As Peston writes, leaving the equities aside--though, for me they are paramount here--"[a]part from anything else, in other eurozone countries where banks are weak, it licenses runs on those banks, as and when a bailout looms."

Indeed, it not only licenses runs on banks, it could be said to require them.



Update, 3/24/13: A last minute deal has been struck, which reportedly:

close down the island's second biggest bank and inflict huge losses on wealthy savers.

Russians would lose billions of euros under draconian terms which are aimed at preventing the Mediterranean tax haven becoming the first country forced out of the single currency.....

Savers with deposits of less than €100,000 (£85,000) would be spared, but it was thought there would be heavy losses inflicted on the deposits of the wealthy.

Laiki, or Cyprus Popular Bank, is to be closed, with its good assets transferred to Bank of Cyprus, the country's biggest bank, where savers would suffer big losses in return for equity shares. Those with more than €100,000 in Laiki would also be hit hard.

Negotiations got under way amid a hardening of the stance by the IMF and Germany, which insisted that depositors must take the hit for bailing out the eurozone's latest crisis economy.

So it goes.

Hail and Farewell!

No, no; I'm not closing shop here. This is a hail to the new Pope Francis who chose his name (as my parents chose one of mine) for St. Francis of Assisi. And, in a way, it's a farewell to the Church of my youth, to the organization that did much for me, but ultimately proved not to be my spiritual home.

So, hail to a Jesuit (ah, the Jesuits! Three years of Fordham education taught me to love you!) who honors the rival Franciscan order in his name, who walks where others have been driven, and who can say this:

“Given that many of you do not belong to the Catholic Church, and others are not believers, I give this blessing from my heart, in silence, to each one of you, respecting the conscience of each one of you, but knowing that each one of you is a child of God,” he said. “May God bless you.”

This Easter season may see ecumenicism rise from the dead, too. And I would be glad of it.

Hail also to a Latin American who speaks movingly of the plight of the poor, and seems sincere about the need to address inequality. Let's see where he goes, but Pope Francis could, for all his doctrinal conservatism, nonetheless be a breath of fresh air.

He will face a challenge that is deeper than that sketched by Ross Douthat, who, unfortunately misapprehends the Roman Catholic Church's critics, as well as the sex abuse crisis itself:

Catholics believe that their church is designed to survive the lapses of its leaders. The Mass is the Mass even if the priest is a sinner. Bishops do not need to be holy to preserve the teachings of the faith. The litany of the saints includes countless figures — from Joan of Arc to the newly canonized Mary MacKillop, an Australian nun involved in the reporting of child abuse by a priest — who suffered injustices from church authorities in their lifetimes.

But it’s one thing for Catholics in a Catholic culture, possessed of shared premises and shared moral ideals, to accept a certain amount of “do as I say, not as I do” from their pastors and preachers.

It’s quite another to ask a culture that doesn’t accept Catholic moral ideals to respect an institution whose leaders can’t seem to live out the virtues that they urge on others.

In that culture — our culture — priestly sex abuse and corruption in the Vatican aren’t just seen as evidence that all men are sinners. They’re seen as evidence that the church has no authority to judge what is and isn’t sin, that the renunciation Catholicism preaches mostly warps and rarely fulfills, and that the world’s approach to sex (and money, and ambition) is the only sane approach there is.

Really, Ross; have you not read C.P. Snow's "The Case of Leavis and the Serious Case"? In it, Snow sketches the "basic and simple rules" that make discussion of fundamental disagreements possible:

If I enter into discussion on any topic, intellectual, moral, practical, or whatever combination you like, it matters very little what I feel for my opponent, or what he feels for me. But I am entitled to require--or if I am not so entitled then I have to beg to be excused--that he and I will observe some basic and simple rules. If he refers to words that I have said or written, he will quote them accurately. He will not attribute to me attitudes and opinions which I do not hold, and if he makes any such attributions, he will check them against the documentary evidence. He will be careful when referring to incidents in my biography, and he will be scrupulous about getting his facts right. Naturally, I have a duty to obey the same rules in return. Nothing could be much more prosaic or straightforward; but without these ground-rules, any kind of serious human exchange becomes impossible.

Douthat is wrong to relegate the Catholic Church's critics to the realm of the worldly, who choose, as he terms it, "religion without renunciation." Perhaps some hold that position, but not all. As I have argued at length, the failure demonstrated by the hierarchy's reaction to the unfolding, decades long sex abuse crisis was that it chose to fight for its institutional power and prerogatives; to lie, mislead, and cover up crimes under secular law from law enforcement, from its own members--even though the crimes were, according to the institution's own judgment, the gravest crimes. Only relentless public exposure has brought about incremental change, and accountability has, in the few cases where it has existed at all for those who covered it up, been imposed from without, by secular law enforcement and media. The warped vision of the common good which can rationalize these facts is what draws the astonishment and horror of many of the critics--and the successor thought--if this can be rationalized in the name of the common good, what cannot be?

Discipline and good behavior alone will not cure this; a change of heart on the part of the institution itself is needed.

Pope Francis has a heavy job ahead of him, but I hope it is one at which he succeeds. And here is where the farewell part of this post begins. Although I am no longer a Roman Catholic, I have a nephew and a niece whom I love who are; my parents, whom I love are, too, as are my cousins (on my mother's side), including my godfather and godmother, the older brother I didn't have but did have. My family is steeped in this tradition, and very much represent the best of it (especially the nuns! We have some, you know!).

And so am I steeped in that tradition. As an Anglo-Catholic, I carry the best of my upbringing into my life and, God willing, what will be my ministry. It is a large root that feeds me.

I have a vested interest in rooting for Francis, and wish him well.

Farewell, then, to the Roman Catholic Church of my youth, which after a sun-dappled childhood grew steadily less welcoming for those of my cast of thought and belief. May renewal come, and mutual respect, and, at long last, peace.

Amen.

He Is Returning, It Is Returning, They Are Returning....

When in 2010, the University of California began publishing the Autobiography of Mark Twain, the big question was what had taken so long. The Autobiography was a hodgepodge of memoir, political commentary, fiction, and what-have-you, banged together in stream of consciousness form. The U Cal blurb describes his method:

"I've struck it!" Mark Twain wrote in a 1904 letter to a friend. "And I will give it away—to you. You will never know how much enjoyment you have lost until you get to dictating your autobiography." Thus, after dozens of false starts and hundreds of pages, Twain embarked on his "Final (and Right) Plan" for telling the story of his life. His innovative notion—to "talk only about the thing which interests you for the moment"—meant that his thoughts could range freely. The strict instruction that many of these texts remain unpublished for 100 years meant that when they came out, he would be "dead, and unaware, and indifferent," and that he was therefore free to speak his "whole frank mind."

The Autobiography has never been published in that way, though, and not all of it has been published at all; Albert Bigelow Paine started to publish it, but only got two volumes out in 1924, both shorter than volume 1 of the California edition. Then, in 1940, selected topical bits from the Autobiography were published by Bernard DeVoto, under the title Mark Twain in Eruption. DeVoto published another volume, Letters from the Earth, in 1962, this time including bits of fiction.

In 1959, though, Charles Neider published what he titled The Autobiography of Mark Twain, which is, I am afraid, a rather fraudulent if quite readable volume. Neider stripped the most purely memoir-ish segments out of context, strung them together in chronological order, and tossed out all of the political commentary, satire, as well as Twain's stream-of-consciousness approach. It was a splendid read, and received rave reviews, but in no way was it the autobiography of Mark Twain. (Let me not leave Neider on so uncharitable a note, though; he introduced back into print many of Twain's essays, short stories, and sketched and tales, as well as doing a thoroughly scholarly and responsible job editing Papa, Susan Clemens' biography of her father, written when she was only 13. Neider's compilation volumes made a great deal of hard to find Twain accessible for me when I was a boy, and I still have them, and treasure them.) Finally, a brief but more authentic volume, comprising the sections Twain published in The North American Review during his lifetime was published as edited by Michael J. Kiskis, under the title Mark Twain's Own Autobiography in 1988.

Mark Twain's Autobiography, Volume 2 will be released in October of this year.

Now, don't get me wrong; I was and am delighted to have volume 1 of what I consider Twain's final masterpiece. But, frankly, volume 1 largely corrects and unbowdlerizes the otherwise reasonably good fist of editing the first part of the Autobiography by Albert Bigelow Paine. Volume 2 is where the real action begins, for those of us who have read the Paine edition.

And volume 3 will contain the Ashcroft-Lyon manuscript, the 429 page jeremiad that will shed light on the relationship between Twain and Isabel Lyon, his secretary with whom he had an enigmatic relationship, one which led him to, for several years, keep his daughters Clara and Jean at a distance, at great cost to the latter. As I've previously written, both Isabel Lyon and Jean Clemens have had their defenders; but the voice of the man Lyon (and Paine) called "the King" has been suppressed these 100-odd years.

Much turns on the nature of the Ashcroft-Lyon manuscript. Is it, as Lyon defender Laura Skandera-Tronbley contends, a profoundly disturbed document, displaying all of Twain's paranoia and bile (he did have both), or is it, as Karen Lystra contends, an expiation of rage and shame (for his treatment of Jean) by a brilliant man who had nearly lost all that he had to a manipulative, if devoted, Lyon? The Ashcroft-Lyon will not, of course, answer the question of the nature of that strange relationship, but it will shed light on Samuel Clemens' capabilities and state of mind as the sun began to set on Mark Twain.

Thursday's Thoughts, Friday's Lesson

I don't normally re-purpose my own work here, but the passage of Romans that straddles today's (Thursday's) and tomorrow's (Friday's) epistle in the Daily Office has great resonance for me, and I want to share what I wrote about it, and a Robert Frost poem, in December, 2011:

Yesterday, my mother-in-law, Mabel, died. She had suffered from Alzheimer's Disease for years before I met her, and, when my fiancee (as she then was) and I stayed with my now-sister-in-law, I got to spend a little time with her. She was able to understand who I was in her daughter's life, to take pleasure in feeling that we had, after a fair number of vicissitudes, found our way to each other at last. Her death came after an unexpected sharp illness, and my wife and I had to get a flight the very same day. We bolted from New York, and found ourselves in North Carolina a few hours later.

In meeting with Mabel's friends and family, and hearing their stories about her, I felt that I finally got to, if only indirectly, know a woman I'd only glimpsed. I was asked to help her long-term caregiver, a very kind, loving woman, select a passage of scripture, and also to find a poem by Robert Frost, Mabel's favorite poet. Here's what I came up with.

The scripture verse was Romans 8: 24-28:

For we are saved by hope: but hope that is seen is not hope: for what a man seeth, why doth he yet hope for? But if we hope for that we see not, then do we with patience wait for it. Likewise the Spirit also helpeth our infirmities: for we know not what we should pray for as we ought: but the Spirit itself maketh intercession for us with groanings which cannot be uttered. And he that searcheth the hearts knoweth what is the mind of the Spirit, because he maketh intercession for the saints according to the will of God. And we know that all things work together for good to them that love God, to them who are the called according to his purpose.

The last sentence is especially important to me, especially after I read Susan Howatch's novel Absolute Truths, in which, based on a sermon by Dean Alex Wedderspoon, she glossed the passage as:

suggest[ing] that the sentence "All things work together for good to them that love God" was slightly mistranslated, and that the translation should have been: "All things intermingle for good to them that love God." This would mean that the good and bad were intermingling to create a synergy--or, in other words: in the process of intermingling, the good and the bad formed something else. The bad didn't become less bad, and the dark didn't become less dark--one had to acknowledge this, acknowledge the reality of the suffering. But the light emanating .from a loving God created a pattern on the darkness, and in that pattern was the meaning, and in the meaning lay the energy which would generate the will to survive.

As to the Robert Frost, this is the one that spoke to me:

Nature's first green is gold,
Her hardest hue to hold.
Her early leaf's a flower;
But only so an hour.
Then leaf subsides to leaf.
So Eden sank to grief,
So dawn goes down to day.
Nothing gold can stay.

Vogue la Galère, Mabel. Let your ship sail free.

***

That post was a short tribute to my mother-in-law, and rumination on a passage that I love. May I also recommend Charles Gore's treatment of the chapter?

Quality of a Leader

Toward the end of last year, I got to see Leonard Cohen in concert at Madison Square garden--which he filled, quite thoroughly, by the way. He played from 8:30 (OK, late start) through to 11:45p.m., with one 15 minute break.

One of the things about Cohen's performance style that really struck me, and I think must reflect the man himself, is admiration for his fellow artists on storage--musicians, singers,etc.--and his desire to showcase their talent and honor them.

So Cohen extends "I Tried to Leave You," allowing each of his fellow artists to shine, and put her or his own stamp on it:



Notice how he identifies each player by name, and, for the musicians, their instrument/role in the overall show.

Again, with "Take This Waltz":



Note the soubriquets, too--the "incomparable Sharon Robinson;" the "sublime Webb Sisters" (always identified by name, too); the "sweet shepherd of strings" Javier Mas.

(By the bye, these performers absolutely deserve the praise Cohen generously heaps on them (just visit their linked sites).)

And, easy as it would be to deploy this excellent artists as background, Cohen cedes whole songs to Robinson and the Webb Sisters, and "Who By Fire" is now as much Javier Mas as Cohen, et al:

How Guilty Was G. Valle?

So today a jury in federal court convicted Gilberto Valle of, among other charges, conspiracy to commit murder. The case drew considerable attention based on the sensational facts--a conspiracy to kill, cook and eat women for sexual pleasure is, outside of the pages of Thomas Harris' fiction, fairly outré. Especially when the alleged perpetrator was a New York City cop.

Ah, but wait a moment, wait a moment--perpetrator of what, precisely? Valle didn't actually harm anybody, let alone kill anyone, did he? And so the question is being asked, has Valle been convicted of "thoughtcrime" in the guise of conspiracy? After the conviction, the Times reports, that was exactly the contention of his counsel:

His lawyer, Julia L. Gatto, called the verdict “devastating” and said the government had not proved its case. “This was a thought prosecution,” she said. “These are thoughts, very ugly thoughts, but we don’t prosecute people for their thoughts. And we’ll continue to appeal and continue to fight for Mr. Valle.”

Now, there are reasons to fear the application of conspiracy law to bootstrap thoughts into crime; as Justice Douglas pointed out in his dissent in Dennis v. United States:

Petitioners, however, were not [p582] charged with a "conspiracy to overthrow" the Government. They were charged with a conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our Government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence...

The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is emphasized by a concurring opinion, which, by invoking the law of conspiracy, makes speech do service for deeds which are dangerous to society. The doctrine of conspiracy has served divers and oppressive purposes, and, in its broad reach, can be made to do great evil. But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet that is precisely what is suggested. I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in the indictment. To make a lawful speech unlawful because two men conceive it is to raise the law of conspiracy to appalling proportions.

Douglas notes that the abuse of the conspiracy laws to convict adherents of the Communist Party was redolent of the abuse of the treason statutes in the medieval era, in which

the concept of constructive treason flourished. Men were punished not for raising a hand against the king, but for thinking murderous thoughts about him. The Framers of the Constitution were alive to that abuse, and took steps to see that the practice would not flourish here. Treason was defined to require overt acts -- the evolution of a plot against the country into an actual project. The present case is not one of treason. But the analogy is close when the illegality is made to turn on intent, not on the nature of the act. We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did, but for what they thought; they get convicted not for what they said, but for the purpose with which they said it.

All of which is to say, yes, this case raises significant First Amendment issues. A closer look at the facts and the law is warranted.

Starting with the law, then; the Supreme Court has long held that a conspiracy may be properly punished under criminal law:

Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains, in essence, an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

(Brown v. Hartlage, opinion of the Court by Justice Brennan.)

As I wrote in First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004), "conspiracy, the archetype of such inchoate offenses, it is the formation of the agreement itself that is the offense--the creation of an an association with the goal of committing the criminal act." (p. 199) To establish a conspiracy, though, an agreement is not in and of itself enough; an "overt act" must be proven, meaning an act "in furtherance of the plot." Often prosecutors shoulder the higher burden of proving a "substantial step" (necessary under federal law to prove an attempt) in order to allay thoughtcrime concerns.

That was, in fact, the case at Valle's trial; the prosecution's evidence, as detailed in a rather sardonic account included e-mails as described in testimony:

What, exactly, was in those emails from his account? . . . The first set describes a bargain struck between Valle and a co-defendant from New Jersey named Michael Van Hise. In those discussions, Valle claims to be an aspiring professional kidnapper, and they work out a deal in which Valle will deliver one of his friends—a real woman he knows—as a sex slave for Van Hise. The two discuss Van Hise's plans for this victim and how Van Hise intends to rape her right away and then keep her locked up in his house.

Eventually they agree on a price of $4,000 for the kidnapping. Valle promises to drive her over in the trunk of his car one day in February 2012, but when the appointed day arrives, no delivery occurs. The government offers no evidence that Valle and Van Hise discussed this aborted plan again. Instead, the correspondence jumps ahead to another round of negotiations, very similar to the first, except the price is now $5,000. Van Hise never mentions that the price went up, nor that he failed to receive his sex slave the first time around. The two men inexplicably behave as if the first arrangement never even happened.. . .

Other overt acts included surveilling women identified in e-mails as intended victims, using police databases to obtain information about them, and setting up a meeting with one woman, along with his own wife and daughter.

It's a difficult case form an opinion on without seeing all of the evidence, frankly. Clearly, enough evidence existed to allow a case to go to a jury--a conspiracy may be prosecuted even if it stops well short of fruition. Here, the e-mails establish communications purporting to constitute several agreements--if they were in earnest and not role-playing, as the defense claimed. But without Valle testifying, arguing that his subjective intent was merely to share fantasies became very difficult, as it could only be done circumstantially and inferentially. The question of whether the evidence proved beyond a reasonable doubt to the jury is one which, on appeal, will be viewed in the light most favorable to the prosecution, which does not augur well for appeal.

An instance of "hard cases make bad law"? Perhaps; we'll see on appeal. But a narrow decision on the question of intent and evidence would likely have little precedential value; this case may truly be sui generis

A Belated Book Gloat

So, a few months back, I bought an 1894 SPCK biography of George Herbert. Unusually, it was anonymous, so I didn't view the inscription on the flyleaf by one John J. Daniell as anything worth reading, more of a defect than anything else.

Of course, if I'd read the inscription, I'd have noticed that the inscription identified Daniell as the author. Here, look for yourself:



(click to enlarge)

Modern reprints of the biography identify Daniell as the author; according to Hymnary.org, Daniell was "born at Bath, Oct. 6, 1819. In 1848 he was ordained by the Bp. of Manchester. His subsequent charges included the curacies of Gerrans, Menheniot, Kington-Langley, and others, and the vicarages of Langley-Fitzurse, Winterborne-Stoke, and Berwick St. James, Wilts, and Langley-Burrell, having been preferred to the last in 1879. Mr. Daniell is the author of several prose works, as: Life of Mrs. Godolphin; The Geography of Cornwall, &c.; and of a poetical work, Lays of the English Cavaliers.... He died Nov. 1, 1898."

So this evening, I open up the book, and find in it two letters from Daniell, one of which discusses the book, and the other responding to his correspondent's thoughts on the volume, and discussing future literary plans. Here's the earlier letter, written in the same bold (if not always perfectly legible) hand as is the inscription:



So Daniell was in his 75th year when he wrote the book, and the letters.Between that fact and my own illegible scrawl, I'm not knocking his penmanship.

Rather a nicer find than I had thought, taken all in all.

I Love a Parade!

I haven't seen the HBO miniseries, but last week, finding myself in the neighborhood of the Strand, I looked in, and on a lark bought the omnibus edition of the Ford Madox Ford novels (discussed here). Now, having suffered the torments of the damned (OK, of the darned) in trying unsuccessfully to slog through the vast, arid wasteland that makes up the same author's The Fifth Queen, it's surprising that I wanted to try these--but, on an impulse, I bought it.

This has turned out to be a great move on my part. Parade's End is, so far (end of the first of four linked novels), a remarkable work of fiction, with complex, believable characters, social satire and writing that ranges from the serviceable to the incandescent. At his best, Ford sees deeply into his characters, and uses language to convey their perspective in a way that is evocative and necessary to the task at hand--in other words, I at no point feel he is showing off his gifts; the prose serves the story and the characters, and is often arresting anyway.

The New Originals

So today I attended the first part of a two day symposium, The New Originalism in Constitutional Law, which co-organizer James Fleming described as a sequel of sorts to the Symposium I attended in 1996 with la Caterina at which the late Ronald Dworkin gave the keynote. (In my post, I said 1997; that's when the articles were published; the actual event was the year before.)

The panels this morning and afternoon were a little less starry than at that symposium. At the morning panel, the Dworkin "Moral Reading" perspective was represented along the lines here by Professor Fleming; Randy Barnett and Keith Whittington represented the New Originalism perspective, and Benjamin Zipursky represented a textualist viewpoint (most akin to my own). The speakers were all first rate, in my opinion, and I really have to praise Barnett and Whittington for presenting the evolution of a much more intellectually respectable vision of originalism than the "Old Originalists" (Bork and Scalia, as well as their academic adherents). For Barnett and Whittington, the New Originalism seeks to find not a subjective original intent (thereby eliding the question of whose intent--the drafter? The Constitutional Convention's? The ratifiers?) which may not even be recoverable, but the "Original Public Understanding" of the text--that is, what the text would have conveyed to a reasonable reader at the time of its enactment. That meaning is the one which controls.

Moreover, the New Originalism draws a critical distinction between the interpretation of text (the OPU above) and constitutional construction, in which (to quote Whittington) "[w]e also construct constitutional meaning in the absence of determinate meaning that we can reasonably discover." This "construction zone" is acknowledged to be quite large, and to be one in which the other modalities of constitutional interpretative theory, such as structure and relationship (Shabash! to my old mentor and his current followers), Dworkin's moral reading, or even legislative history, so derided by Scalia) have legitimate play.

What's encouraging about this, of course, is that the New Originalism does not hold itself out as the sole legitimate approach to difficult constitutional questions. Indeed, Barnett and Whittington cheerfully acknowledged that most thorny issues would fall within the "construction zone." It's a more inclusive, lest rigid form of originalism. (A joke made at the symposium was that the New Originalism was so broad that it included Jim Fleming and Jack Balkin--two very trenchant critics of the Old Originalism. Fleming, suggesting that the New Originalism had become so broad as to lack bite, suggested that the illimitable construction zone might mean that, far from all being originalists now, perhaps we are all Dworkinian moral readers now.)

As Mitchell Berman (author of the helpful Originalism is Bunk) pointed out, for the Old Originalists, originalism was really about a theory of adjudication (what should judges do in deciding cases to limit the subjectivity of their decisions and constrain their prejudices), for the New Originalists, it is a theory about law--a claim as to what constitutes the substantive law of the document.

This isn't to say I'm signing on, mind you, any more than Berman is. Still, I am encouraged as well by the primacy of the text in the New Originalism. To me, nothing typified the intellectual shoddiness of the Old Originalism more than Robert Bork privileging his own understanding of the subjective intent of the undifferentiated Framers over the text by narrowing or entirely erasing constitutional texts that did not fit his views. Justice Scalia's and Chief Justice Roberts' overt hostility to the Voting Rights Act in this week's oral argument in Shelby Co. v. Holder doesn't exactly lead me to believe that the original intent of the Reconstruction Congress is likely to be honored in their opinion(s) in this matter, as a real "original intent" approach would require. (Such a sincere original intent approach was defended by Larry Alexander, along the lines set out here.) By contrast, the New Originalism is less result-oriented, more rigorous, and more faithful to the text. Still, I am not sure the emphasis on the OPU at the time of enactment is so integral to the project. (OK, I get that you could hardly call it originalism if it wasn't but that's really not what I mean). I'm not convinced that the change in linguistics has been sufficient since 1791--or, even more so, since 1868--to presume that current meaning is not an appropriate starting point, understanding that a truly well established change in denotation or usage could be a relevant factor in interpretation. Is it possible that the New Originalism, in short, is merely textualism with a penchant for antiquarian research?

Finally, I also want to note the refreshing contribution made by Tara Smith, in rejecting the rationale of New Originalism along the lines expressed by her here; disadvantaged as she was by speaking near the end of the day, she brought a verve and lightness of touch to her presentation, as well as a bracing return to first principles of constitutional reasoning.