Friday, April 21, 2017

Spirit And Letter Of The Law

4/22/17

Question: is there such a thing as the spirit of the law and if so what can it functionally mean? 

There may be such a thing, i.e., it may be something we can speak coherently about.

I'd say, if I had to try to define it, it's what the law aims at, its purpose or its intent, as derived from what the law says.

So in this sense, I can see talking about the letter and the spirit of the law: to take a dull example, there are complicated laws governing what equipment vehicles need to meet emission standards, the letter, the larger purpose of which is to curb air pollution, the spirit. 

I don't see anything controversial in any of this. 

But the bite can come, for examples: when the letter of the law seems inconsistent with the spirit of the law--say it can be shown that certain emission prescriptions don't curb emissions; or when someone violates the letter of the law but meets its spirit, say unprescribed emissions controls that work but still leave the driver non compliant with what's prescribed but can be shown ineffective. 

The examples are endless. 

With these examples, textualists, of which I'm one, will say, "Spirit me no spirit. If the plain language of the law points to a clearly understood meaning, then that ends the question of what the law is/means." 

Mind you, if the language in question is ambiguous, capable of being read reasonably more than one way, recourse to overall language, structure, context and purpose are indispensable means of resolving the ambiguity. Judges, citizens, will want to favor the reasonably possible meaning that fits with the language structure, context and purpose of the overall law. 

But the difference between my two examples and reasonably read ambiguity is that in the first cases there is a tension or gap between meaning and purpose with a proposal that the latter trump the former, while in the case of ambiguity, the effort is to try as much as possible to harmonize meaning and purpose, to try to make them seamless. 

So my argument is that when literal meaning, the letter, seems at odds with overarching purpose, spirit, the former must prevail and in the sense of ostensible friction or a contest between the two, there is no prevailing meaning that can be given to the idea of the spirit of the law.

There is a doctrine of absurdity, which is to say, the law is not be read so as to lead to absurd results. While I'm not well schooled in this doctrine, my general, unnuanced understanding is that it's confined to evident drafting errors, "the scrivener's error," which is to say, manifestly the legislature cannot have intended provisions that are distinctly opposite, in fact countermanding of, what the law as a whole clearly intends. This is a very narrow doctrine. 

If anyone wants to amplify, refine, raise questions about, or disagree with any of this, I'd be happy to consider any such.

Sunday, April 16, 2017

A Few Sour Notes On Howard Jacobson's The Finkler Question

4/17/17

Oy vey!

I finally finished reading Howard Jacobson's The Finkler Question, which is one of those books I read very slowly over a very long period of time, at most 15 pages at a time, save for tonight when I read about 40 of its last pages just to finish. I didn't read it slowly in order to savor it or to pause meditatively over its parts. That's just the way I happened to read it for whatever the reason. 

Basically I didn't like it and one reason is that I can't remember the last time I was so irritated by, impatient with, frustrated by, felt exasperated dislike for, a main character. Here, the utterly hapless protagonist, if he can be called that, there's so little that goes on, Julian Treslove, obsesses over wanting to be a Jew. (Don't ask: it's in this book a ludicrous premise.) 

He's the personification of an obsessiveness that stops short of mental illness. He obsesses over who he is, over every little thing that happens to him--nothing big does--over his friendships, his relationships with women. He embodies the paradox of the kind of person who's so deeply and endlessly preoccupied with own puniness, failures, weaknesses and limitations that he's finally and essentially irritatingly self centered. He's self abnegation as self assertion. 

That one reason blends into another one: I'd argue Jacobson invests himself in Treslove's unending interiority. Rumination, at least in one of its meanings, isn't a good thing. It's obsessive thinking. As a mode of anxiety it's compulsively going over and over the sources of distress. And as Treslove does little but ruminate, so Jacobson fancies that rumination an apt means of his, Jacobson's, questioning, answering, observing, discussing, exploring, disputing, presenting, joking about, explaining, talking about, satirizing, hectoring, all endlessly to an obnoxious fault, Jewishness in all its ostensible forms, manners and habits. 

What Jacobson through Treslove has to say about the nature of Jewishness is typically so petty, so absurdly binary, so trivial, so essentialist, so over the top, so trite, so exaggerated, all in all so foolish, that it made me think as I was reading that "This guy, Jacobson, isn't really very smart after all, that no one but some fool who lives largely in his own pointy head could seriously think and write these things." 

I'd argue that for Jacobson, Treslove isn't a detached fictional creation of a certain type of man. I'd argue, rather, that while clearly Treslove isn't an autobiographical character, Jacobson projects much of his own sensibility into him. 

Now The Finkler Question, which by the book's terms means The Jewish Question, got a lot of good reviews and it won the 2010 Man Booker Prize. All that reviewing and prize winning glory made me wonder if my breaking up with the book was me and not it. 

I surmounted my wonder, however, and concluded it wasn't me, it was it. And so I was gratified to see that a high toned critic like James Wood felt somewhat the same way. So if anyone wants to get a more concrete and detailed sense of some of the causes of my disdain for this novel while reading a spritely and acute piece of book reviewing at the same time, I commend Wood's article on Jacobson's work. 


http://www.newyorker.com/magazine/2010/11/08/member-of-the-tribe

Religious Liberty: Sexual Orientation Compared To Racial Discrimination

4/16/17

Racial discrimination and sexual orientation discrimination in relation to religious liberty: 

This note is prompted by an essay I just read that argued for, among other things, religious liberty to include the conscience based right to discriminate on the basis of sexual orientation, for example not to provide a public service for a gay marriage. 

Please forgive my lack of nuance and any errors. I'm not a U.S. lawyer and this is essentially, but not totally, off the cuff. I did quickly look up a thing or two. 

As I understand it, basically and generally religious liberty ends where other law begins. So that, for one example, the unburdened exercise of religion provided in America by the federal and various state RFRAs--Religious Freedom Restoration Acts--reaches one of its limits when it causes discrimination on the basis of a "protected class." A protected class is a term of art: 

....In United States federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic...

Such characteristics include race, color, religion, national origin. States may in their own legislation on protected classes add characteristics, such as gender identity, not covered federally. 

(I'm unsure of whether sexual orientation is a federally protected class. My at hand and working sense here is that it is for some purposes (say) in employment but not for other purposes. I'd be obliged to be enlightened on that point.)

In a nutshell, no one state licensed can in providing public services exercise their religious liberty if doing so discriminates against a protected class, for example refusing to bake a cake for an interracial marriage. 

In my view, and again very broadly speaking, at least two of the pre-legal informing components in the creation of protected classes are rationality and cultural resonance, which is to say: 

the utter absence of any rational basis to discriminate on the basis of a particular and evident characteristic, (say) skin color,

married to the felt understanding of that absence throughout society. 

Sometimes courts on the basis of rationality will judicially pioneer lahead of sufficiently felt understanding. Sometimes felt understanding will precede lagging judicial recognition. 

So to get to a case: some states don't recognize sexual orientation as a protected class; some do. Therefore, in the iconic example, in some states a Christian baker might rightfully refuse to bake or decorate--some case law distinguishes between baking and decorating--a cake for a gay wedding in the exercise of a sincerely held religious belief; in other states that same baker would be acting unlawfully and be subject to penalty. 

To be sure, in neither state could that baker refuse with impunity either to bake or decorate a cake for an interracial marriage, race being a universal defining characteristic of a protected class, with sexual orientation being a defining characteristic of a protected class in some jurisdictions but not in others. 

So the issue boils down to this, in *one* way of framing it: is there any rational basis for this kind of sexual orientation discrimination whereas there is none for racial discrimination? Why, in other words, shouldn't sexual orientation be an across the board basis of a protected class just as skin color is. 

Me, I can't think of any reason. 

So, I'd say that (say) bakers' unburdened exercise of their religious liberty should stop short where the law making sexual orientation a protected class ought begin. And, further, just as talk of "accommodating" racially prejudiced attitudes, religiously  based or not, sounds to any fair minded person unacceptably wrong, so should any talk of "accommodating" homophobic attitudes, whether religiously based or not. The essential parallel between the cases rests, yet again speaking broadly, on skin color being as incidental to the imperative of equal treatment as is sexual orientation. 

When it comes to sexual orientation it's time for cultural resonance and rationality to marry each other and to consummate their marriage. 

A further word, just to put an emphatic point on all this: just as a religious leader is acting illegally in refusing to officiate at interracial wedding, so it should be illegal to refuse to officiate at a gay wedding.

Friday, April 14, 2017

War Dogs

4/14/17

I just watched War Dogs and give it 6.9 out of 10, which is to say, not quite 7.

I saw it on TV and there were a few excerpts from reviews accompanying the listing of it on a movie channel I get. They panned it for its jazzed up effects and for not taking a stronger moral stand against this particular dark alley of "enterprise war." The guy who directed it, Todd Phillips, directed the Hangover movies, which I saw and didn't much like. So I had low expectations.

But I was pleasantly surprised. I was never bored and while I didn't think it was at all funny or profound, I found the story well told and fast paced. I've known guys like the Jonah Hill character all my life, some having been friends of mine at times, others having been clients. Jonah Hill is fantastic in his portrayal of that kind of guy, con man par excellence, with very little discernible core self, in many respects virtually sociopathic, ultimately undone by his own weaknesses and lack of self control. I kept forgetting it was Jonah Hill and became immersed in his character.

Miles Teller is less effective and is impaled on a contradiction in his character as both a nice, simple guy, a naïf and a nebbish, but also a quick study, able, for example, to construct out of nothing three years of back dated phony accounting records right down to fake purchase orders sufficient to pass two U.S. army procurement audits. One of those two sides of him, as the movie has it, has to go because they don't fit together. Also the scenes with him and his girl friend are boring. Teller himself and those scenes drain away some of the energy that Hill blasts through the movie. 

What helps stiffen the movie's spine is that it's based on a true story. While I can't tell how much War Dogs distorts, departs from and embellishes the true story, it's quite amazing how two twenty something Jewish kids from Miami who never finished college pull off as much as they do. 

Mind you, against all that pulling off, it's compelling to see how Hill--for as sharp as he is in nailing down the ins and outs of arms dealing and the various angles he works it from, in conning others and in teaching Teller all that--is so vindictive-dumb and greedy-dumb in how finally he fucks every thing up. 

That he brings everything crashing down out the weaknesses in himself, out of what he can't control in himself, is War Dogs's version of a kind of anti tragic flaw, the flaw that brings a low person down even lower to ruin from flimsy corrupt heights. And that flaw builds up nicely, getting more and more exposed, as the movie goes along till it finally explodes in all the principals' undoing. 

In The Wolf Of Wall Street and in Goodfellas, which itself is compellingly watchable, I have a problem with Scorsese's amorality in jazzing up what is awful human behavior ranging from scamming gullible people to outright gangster thuggery and murder. There's a moral and intellectual gap between how morally deplorable all that behavior is and how it's either glamorized, made entertaining or made light of as for example in the litany of corpses at the hand of Robert De Niro showing up near the end of Goodfellas in funny looking poses of death. 

But, having noted all that, it doesn't bother me at all, as it does many reviewers, that Phillips doesn't take a harsh view of what Hill and Teller do either in itself or as part of the dark, dark history of the Iraqi war. That they defraud the Pentagon, and ultimately U.S. tax payers, doesn't bother me, even as it's criminal. Maybe it should. But, for me, Phillips basically tells an amazing story quite effectively and I found myself hoping for these rip off guys to get away with it. 


In this story, the charm of rogues defying the powers that be, the essential appeal of rogues, wins me over till things finally fall apart.

Tuesday, April 11, 2017

Dennis Lehane's The Given Day

4/11/17

(No spoilers. I promise.)

Who said I can't read a 704 page book? 

I just finished it--Dennis Lehane's The Given Day, a novel of social history, predominately set in 1918-1919 post WWI Boston, rife with Irish life, labor and racial strife, and radical agitation. 

So what gets dealt with here: only, an overworked, exploited, underpaid police force; workers agitating for better living wages and humane working conditions; burgeoning unionism; baseball as it revolves around Babe Ruth, then playing for Boston and still pitching; radical movements of communists and anarchists; their countervail in the FBI; Boston's high municipal officials and their graft and corruption; a black protagonist on the run from a murder in Tulsa who winds up in Boston, his path crossing with the young Irish protagonist; gangsters and prohibition; the nascent union movement; black class differences emerging with an emerging black bourgeoisie; a police strike and how it is met with historical figures like Andrew J. Peters and Calvin Coolidge among others; seething racism intersecting with the paranoid reactions to radical agitation; terrorism; the Boston riots during the police strike; a disintegrating Irish Boston nuclear family set among class distinctions as well, resonant in the idea of the "lace curtain" Irish; a plague of Spanish Influenza killing and maiming as it goes; and much much more.

The novel is epic and panoramic, the prose of the omniscient narrator solid and steady, capturing the inner voice of the various characters as the narrative spotlight shifts from scene to scene on them, from varieties of Irish brogue to stilted pol speak to the high formed talk of the black and Irish bourgeoise to the raffish street talk of the lower classes. I'm reminded of Doctorow and Dreiser and as well of Walter Mosley in the unrelenting pace of the narrative moving unstoppably forward in its headlong muscular way built out of real figures and built on real events.

Lehane can get right inside mob fury and wild violence as human nature gets shown at its squalid, corrupt and violent worst, especially when the lid of social control via the police is lifted off society.

When the raging heat of humanity bursts its bounds, we are left in suspense  at what will happen, who will survive, who will die, who will be permanently maimed. In ways large and small, Lehane paints a portrait of bottomless evil talking its toll as it explodes out of the foreboding woven in increasingly brighter threads as the novel goes forward. And the evil resides in the street thugs, the fanatical terrorists, in those in low authority who abuse their small portion of power in murderous ways, in venal union executives who make and break promises that working men rely on, and in high officials who let suffering and riot go unheeded for the sake of their willful pride and for the sake of vindictiveness. Lehane's evident sympathy is with the put upon working men who are abused and exploited every which way.

The novel covers a vast range. The copious research that has gone into is evident. It makes history come alive and ties it lightly to our own moment in the novel's concerns with race, terrorism, the otherness of immigrants, political venality, pervasive corruption, family breakdown, and massive class inequality.  

The title The Given Day points to a big theme in the novel: the paradox of what is gifted or given to us by chance as a beneficence and how what seems our doom befalls us as if fated as contingency is a gathering storm that finally catches us in it when it does, on, so to say, the given day. 

I think that this book would be an excellent American novel to teach and learn in university--it may be too raw in its language for high school--from any number of perspectives and at any level of course. 

Finally I'm put in mind of the "debate," maybe controversy is more apt, between Tom Wolfe and his opposed threesome of Mailer, Updike and John Irving, ("the three stooges").  Part of the fulcrum of that debate was Wolfe's embrace and championing of a kind of broad brushed, muscular Balzacian social realism in the novel. He argued that  the "old bones" had marginalized themselves through their evasion of the fullness of social reality and the smallness of their vision, writing about one neurotic after another in the cases of Updike and Irving. I'm not taking sides in that debate but Lehane's novel could be an excellent Exhibit A for the kind of fiction for which Wolfe argued.

Friday, March 31, 2017

A Note On Jill Lepore's New Yorker Essay, Weaponizing The Past

3/31/17

A long note On Jill Lepore's essay in the New Yorker on Weaponizing The Past:

Friend A, not a lawyer:

...There is an essay in this week's New Yorker (March 27) on the use of historical accounts of beliefs of earlier times, from the Greeks on, in making legal judgments.   Judges on both sides of the liberal-conservative divide appeal to historical precedents (in the non-legal sense of the term).  I had not heard of this.  

Friend B, not a lawyer...

....It's this: "Weaponizing the Past", and it seems to be largely a hit at Gorsuch via Scalia and so-called "originalism". As she's done before, I think the author, in her focus on "the past", here misses the point, which is the idea of applying a law that it's not the business of judges to make. Problems arise, granted, when a made law must be judged in terms of a higher law, which is either written, as in a Constitution, or unwritten, as in Common Law, and this is where history comes in. But the history only becomes "weaponized" when it's wielded not to determine the meaning of the higher law but to force it to fit some prior agenda or purpose -- i.e., to change the law...

Then along came Jones, me:

....I didn't know that LePore, with whom I have only an occasional familiarity, having read her occasional journalism occasionally, had "done this before", but I can believe it. I read this essay at least in part as tendentious, to put the subtle boots to Gorsuch. 

I'm not so familiar with the history test, with which she seems happy enough, if I read her rightly, when it yields results she likes; and she poo poohs its use for conservative ideological ends. I don't get from her, unless I missed it being a child of the 21st century with a declining attention span, a definitive thumbs up or thumbs down on the test. I note though she speaks laudably of Stone's book, and I infer from that thumbs up for more history, going way way back the better, if, again, she likes the yielded conclusions. 

I am familiar with some SCOTUS reasoning that talks about long held innate traditions of basic rights deeply embedded in the common law, the rights of which are left with "We the people," unless otherwise specified by the Constitution, as in the enumerated powers given to the federal govt. Despite that familiarity I wasn't familiar with the "history test" as formal doctrine. 

She, in the part that's subtly tendentious and subtly anti Gorsuch/anti Originalism, contrasts the ostensibly cramped, crimped nature of Originalism as a method of historical judicial analysis confined to only a few founding texts, and prone to ideological manipulation, with the good Stone like, Kennedy like use of history to come to good conclusions, i.e., liberal/progressive ones. But her critique is flawed by a minor point: in large measure she doesn't know what she's talking about on matters Originalist large and small. Or she's intellectually dishonest. 

For example, she mistakes and mistates its basic premise, her ignorance or dishonesty glaring in missing the profound theoretical shift in the early 2000s from intention Originalism to public meaning Originalism. LePore ignorantly or dishonestly  asserts the former as if it's still good theory and says 0 about the latter. A sure sign that someone doesn't know their brief is discussing the older theory. 

Originalists decry trying to get at the founders' intentions or answering how the founders would rule in present cases. The theory now has it that the general provisions of the Constitution must be understood by the public legal meaning the terms had when enacted. The principles behind this insistence being fairness comprised in due notice and being the separation of powers. Giving modern meaning to original terms is an act of amendment robbing citizens of fair notice of the law and allowing unelected appointees to usurp the legislature. 

For example, she slags Gorsuch as backward looking, her euphemism for reactionary. Worse, she selectively quotes him as though he concedes that about himself. But as he made clear in the hearing, Originalism is, for him, a forward looking theory that respects original public meaning in order to respect the unelected judiciary's limited role in U.S. democracy and in order to give fair notice but is applied, when original public meaning of itself isn't dispositive, even after putting that meaning in context of the structure of the law and language-derived purpose the words are aimed at, by analogically reasoning to present cases. In a nutshell it's a theory of properly determining the law and applying it. 

For example, she doesn't acknowledge that there's an Originalist case to be made that Plessy was both wrongly decided on and is, in effect, in its error, an example of errant living document theory. And she similarly doesn't acknowledge that there is a case that Brown can be read to have been decided on originalist grounds. It's not that she has to agree with these arguments. It is that she's silent about them in effect asserting they don't exist.

For example, so eager is she to decry Originalism as conservative gobbledygook to yield preferred judicial outcomes, that she pays no attention to a whole school of Originalism that sees in original public meaning the seeds for liberal interpretations of the Constitution. 

For example, she omits that it's now malpractice to argue in appellate courts without presenting, along others, originalist arguments.

Finally, for example, not that what I'm saying is exhaustive, she makes no reference to Textualism, a kind of New Critical legal theory that says legislative intent is to be derived solely from the text, seen in itself and in context with its statute, regulation or executive order as a whole, (bracketing precedent for the moment.) Originalism is a subset of Textualism. 

The more I wrote this, the more critical I became of LePore here. And the less subtle do I think is her hidden agenda...


http://www.newyorker.com/magazine/2017/03/27/weaponizing-the-past

Sunday, March 26, 2017

A Note On Gods And Man In The Odyssey

3/27/17

A Total Amateur's Note On The Odyssey 

I know even less about Homeric epics than I do about Chaucer and his times. 

And I find it hard to get my mind fully around the relation between gods and men in The Odyssey. 

Nevertheless, having read the epic, here are a few scattered observations on that relation that may possibly hold together. 

Homer's gods seem human, full of caprice, folly, vengefulness, anger, feuding, pettiness, jealousy, even evil. They meet and mix with humans, converse with them, have feelings for them, seduce and rape them, aid them in all sorts of ways, and conversely deceive, obstruct and destroy them. But too, these gods, being gods, are immortal, and, so, get to be forever young. And, too, they shape the courses of human events

They're different  from the Christian God of the three omnis--omnipresent, omnipotent, omniscient--and who is but the ideal, the just and the good. The Old Testament God is a touch more human but singularly and augustly divine compared to Homer's gods. Still for all their humanness, his gods still raise in The Odyssey the unresolvable tension between free will and fate. 

Humans in Homer are said to be god like when they excel in some way. However, when they try to exceed the human and get too arrogant and too prideful they display hubris and suffer in the consequence whatever misery the gods cause them. Mortals must observe limits. They cannot contend against the gods who are more powerful. Men must placate that greater power. And so, for example, sacrifices to the gods are common.

The gods favour some men and disfavour others. Favour facilitates success. Disfavour brings misery and death. Athena strongly favours Odysseus and Athena inclines in every way to help him and his son Telemachus, who is as well virtuous and noble. She wants Odysseus successfully to return to Penelope and retake Ithaca. But Poseidon hates Odysseus, who blinded his son Polyphemus. He strives to make Odysseus’ life miserable by causing storms to get him off course and wreck his ships. In all this, the gods hold power and men must try to please them, or at least, as gods contend against each object, please those who win Zeus's ultimate sanction.

We see in The Odyssey god caused or guided action framing human initiative and action; and we find men and gods reacting to each other over the courses of the epic, which is the interplay of the divine, for good and for ill, and the human, for good and for ill. It isn't the case that men are mere puppets in the gods' hands. There is human choice and will and characters are to be judged and fated accordingly. 

And so, finally, there is a sense in which the gods stand behind the resolution flowing out of both the good and bad men do. 

Thus, in largest example. Odysseus's final successes in reclaiming land and queen flow out of his heroism, virtues and nobility as instrumentally helped in the end by Athena as Mentor. Of necessity, that occurs by way of  the suitors' slaughter, causally flowing from their lust, sloth, greed and inhumanity. They are destroyed in part by the same instrumental actions of Athena as Mentor. The nexus between fate and righteous or ignominious behaviour is evident in the innocent two amongst the company of Penelope's suitors who escape killing. 

All of this happens with the sanction of Zeus. Zeus at a remove sanctions Odysseus's triumph by allowing it and at a remove sanctions the suitors in allowing their slaughter.