more from Cardozo

quoting Lincoln, "he who would be no slave must consent to have no slave." Continuing in his discussion of opposing concepts, Cardozo discusses liberty and government juxtaposed, describing law as restraint of liberty, yet in the absence of law, liberty would belong only to the strong or unscrupulous. And so we require social restraint in order to have liberty. Put another way, stealing another child's lunch money must be proscribed so that we can be free to live without constant fear of the bully.

punishment as I see it

For what reason do we punish criminal activity? Do we want to punish the wrong doer? Deter others from following in their path? Reform their antisocial tendencies?

According to what I have learned to date, the various goals/aims of punishment are:

retribution
deterrence specific to the individual who is being punished
general deterrence of others
rehabilitation
restraint

It is important to keep in mind that I am a first year law student and I have much to learn. Added to this is the fact that the law school I attend focuses on substantive law and its practical application, to the detriment of discussion of legal theory and the like. So I have not had a great deal of time to research this independently.

It seems as though taking the purposes of punishment in order from the most optimistic to the least, the first would be rehabilitation. In this instance, we hope to retrain or redirect the individual to a productive and socially acceptable behavior. This is a commonly stated goal when dealing with juveniles.

The next may be specific deterrence; likened to that of the puppy and the spray bottle of water which teaches him that it is not acceptable to chew on the table leg. Once I have been punished for stealing from my neighbor, the idea is that I may subsequently refrain from such undesirable behavior.

General deterrence is implied in almost any case where punishment is meted out and in particular is used when courts decide to 'make an example' of someone. The greater good of sending a message to the rest of the community is deemed worth giving the particular actor a heavier sentence than would otherwise be imposed.

Retribution is meant to make one pay for their wrongdoing, based originally in the concept of an eye for an eye.

Lastly, restraint is required for those deemed too evil or dangerous to be allowed freedom. They are considered unsalvageable in the main and for this group of people, the solution is removal from society to a place where their ability to inflict harm is at least lessened. My focus is not on this group of criminals, as I think there needs to be a place for sociopaths and the like, and I see no better solution, except perhaps Abigail's solution-shoot them. I'm not sure that is a bad idea, but first I'd like to know that there is no possibility of error, and secondly, I'd like to know how we keep from debasing ourselves in the process. On this matter, Peter has reminded me of what Bardolph said to King Henry the 5th before he became king-"Do not, when you are king, hang a thief." And Henry, in his response, told Bardolph that he the King would not do it, the thief would. The inference is that the sovereign, or in our case, the State, does not kill anybody, they kill themselves-they knew the rules and acted in spite of them. But let's save that for another time.

Also leaving aside for the time the group of individuals convicted of violent crimes, let's move to the rest of the criminals. While I do not want to just dismiss all of the former population, I would like to pick that thread up at a different time.

We as a society have a great and urgent need for reformation of the use of punishment with those who are convicted of crimes in general, and non-violent ones in particular. I mean in particular to criticize our overuse of prison/jail as a means of punishment (or should I say administrative processing?) What good does it do to lock up large populations of our society and treat them without respect, teach them how to survive by joining a gang and demonstrate our disdain for them? They learn that polite society has no use for them, that the only place they belong is with other criminals, and they learn the skills necessary for success in that world.

I don't pretend to know all there is to know about our prisons, and I have been fortunate in not being a victim of a crime more egregious than burglary. However, I do not think one is required to be a victim of murder to understand the harm that can come of it.

I do not mean to understate the deleterious effect of property and white collar crime. It can have devastating effect on the lives of its victims. However, once we get past our individual righteous indignation and look at the higher good for society as a whole, and to some degree, the greater benefit in improving the odds for at-risk sectors of the population, I think there is a clear problem with our current approach. This is most clearly highlighted in our handling of juveniles, and this is also the area where the most benefit can be gained from small changes.

While we do have restorative justice programs and a stated intent not to punish juveniles, I think we are kidding ourselves to say it is otherwise for most youthful offenders. You may know the phrase "there but for the grace of God go I", and whether you believe in God or not is not really of any import here-we all need grace and mercy, especially during our adolescent years. Volumes could be, and have been, written about the effect of poor or absent parenting, abuse, lack of structure and a myriad of other things that adversely affect developing minds and behaviors. However, we do not seem to find ways to use this knowledge for our own good. In the end, we all pay for our inertia. Society is poorer for not providing its youth with clear and positive direction, good role models, opportunities to find the thing that fires their imagination and reasons to do the right thing.

Beyond reaching majority, many of us still have much to learn. Some of us learn it the hard way. I remember visiting my family member in the state prison every Sunday for years, and while from one visit to the next, I saw no change, in the end, he came out of that experience a different person.I do not credit the prison system. I think a big part of the positive change was a result of his parents' unwillingness to let him go. They loved him and treated him as a person for whom better things were to come, he would learn and change from this experience, and it became a self fulfilling prophecy. My point is that it can be done. But I think it will be difficult to do a lot of reformation within a prison environment.

It is intrinsic in human nature that the prison-keeper has too much opportunity for abuse of power without consequence, and the prisoner little self respect or dignity. Both of these mean that a correct balance of power is nearly impossible to maintain when one is the keeper and one is the kept. In my opinion, learning to respect others' rights begins with respecting one's own. And that is a lesson rarely learned in prison. One only needs to look at the rate of recidivism to know that what we are doing now is not working. How long can we continue on this path? We imprison ourselves at a higher rate than any other country in the world. Surely there are other ways.

The club of crazies

Its like we are part of a club-some might say a club of crazies, attempting law school, which is structured illogically, and exams, which may be more of a test of your test taking skills than your knowledge of the law.

As Llewellyn said in The Bramblebush, the law professors do not teach, we students learn. What happens in class is such a small part of our legal education, albeit an important one.

There are some things I need to try to do to make this easier.
-find a way to stock good food, ready made or microwaveable each week so I don't eat my dinner out of the vending machine at school.
-work needs to stay at work, and be limited to 9 hours/day maximum.
-take a walk every few hours when I'm studying to clear out the cobwebs.
-continue to work on structure and organization in my outlines and checklists, because I remember things a lot better that way.
-follow the rabbit trail, because I belong to the club of crazies and I love it!

my rules continued

#4. When you make something, you make something else.

Not sure where I first heard this, so I can't attribute it to a source. Scientifically this would be the law of cause and effect-nothing happens in a vacuum. You may think that what you do, or don't do, today will not matter but it will have some sort of ripple effect. The intangible matter you displace will be replaced by other matter, intangible or otherwise.

#5. What others think of me is none of my business.

This may seem to be in conflict with the ideas espoused by Dworkin in his book, Justice for Hedgehogs, but I aspire to this rule, used in moderation and under a strict requirement of good faith. This means I can't invoke this rule because I want to do something to piss you off. I have to have a clear conscience as to my motivation to act.

a life well lived

I'm reading a book by Ronald Dworkin called Justice for the Hedgehogs. I confess that some of the theory and topics of discussion are beyond my current academic training, but I find it fascinating anyway. For instance, he asks the question, What is the character of a life well lived? Dworkin says that ethics is the study of how to live well, and morality is the study of how we must treat other people. According to his view, we each have a sovereign ethical responsibility to make something of value of our own lives, and that we must treat this as a challenge; that it is objectively important how we live. So what do I need to do to make something of my own life? And what do I want to make of it? Questions that deserve some thought.

This is a tall order, but for some reason it resonates with me. He says that we must find the value of living in living well, just as we find value in loving or painting or singing, etc. Dignity and self-respect are essential to living well, and he refers to Kant's thesis that we cannot adequately respect our own humanity unless we respect humanity in others.

I have some ideas about what this means, but I think I'll hold my thoughts until I've read past the introduction. I expect to glean only about 10% of what this book offers, but that will be riches to me. Meanwhile Cardozo awaits my return.

on measuring success and knowledge

I admit that grades are an extremely limited measure of how well I know the law, and an even worse predicter of the likelihood of me succeeding as an attorney. Still, no matter how much I told myself to expect at best mediocre grades on my first semester exams, I was pretty frantic by the time I actually got the envelope in my hands.

We took the exams in mid December, and the grades were mailed out yesterday. That is about 6 weeks, and a long time to wait for midterms. I purposely waited until after class tonight to pick them up, and then I was so nervous I knew I was giving it too much weight but still I stopped on the way home and tore the envelope open! I would probably have looked while standing in the post office but I found a homeless man sleeping under the table when I walked in. Since it was 9:15 at night and there was no one else around, I decided to read the news in the car. I think probably I startled him more than he startled me though.

I am relieved, excited and definitely feeling more confident now. I think I explained before that the exams in law school seem to be more about how well you can write and how fast you can type as much as how well you know the law, and so I was not sure whether I had managed to write anything intelligible or not. Apparently it was enough.

And so for the moment, I feel successful and more prepared to face the coming semesters. No doubt I'll be humbled shortly, and that's as it should be. I know only that I know so very little, and yet this I know for sure. I feel more alive and energized than I have in a long time. Law school has reawakened a hunger for knowledge and truth that has been at least somewhat dormant for a while. That is success in my eyes.

absurdity

Our inclination toward litigation as the first and primary solution is repulsive and greedy to me. Absurdity is likely to follow.

insurance, or why I take care to step over the cracks

Why does the existence or availability of liability insurance justify abolishing parent-child immunity? Why does insurance factor in at all? Either one is responsible or one is not. Either one is immune from liability or one is not. Yet courts use this benchmark in determining liability and even duty of care routinely.

"Immunity fosters neglect and irresponsibility. Liability promotes care and caution." (Abernathy v Sisters of St Mary's, 446 S.W.2d 599) This Missouri court went on to say that the existence of liability insurance does not create liability where none exists. But it would seem that in today's world, it does.

Strangely, with the tendency to consider the availability of insurance in determining liability or scope of it, the courts have given increased power to insurance companies, and their lobbies. If one has so much to lose, then they will either become a force in the field of play or they will die a quiet death. The insurance industry has the funds to establish and maintain strong lobbying efforts. Additionally, if there is insurance available and one does not avail oneself of the use of it, then there is no quarter given at bar. But which begat which? Was there liability and therefore insurance? Or insurance, and therefore liability?

Perhaps there is a better way to manage the harm that results from our human condition. Meanwhile, I drive more cautiously than I used to, and I step over the cracks in the sidewalk. I invite you to do the same, especially when you are on my property.

the slow dance

I’m reading Cardozo’s ‘The Paradoxes of Legal Science’ and find some thoughts that I think are relevant to my classmate Peter’s qualms with law. I’ve argued my stance with him, but of course I’m another lowly law student and have no academic credibility.

Per saltum-our movements through life and in life. I like the picture this paints for me. We have all watched our child as they learn new skills. Things impossible for months and years, one day are possible. Of course, the change was occurring gradually over time, but one can’t generally see that creeping change. And so it is with the movement of law and justice as enacted by humans.

Cardozo talks about how we think we wrestle with new problems, brought on by the age in which we live, but says at its core are all the ancient mysteries, still not understood. He juxtaposes rest and motion, the one and the many, liberty and equality, property rights of the individual and the welfare of the many, justice in its universal quality and yet capacity for justice for the individual.

I quote “Society is inconstant. So long as it is inconstant, and to the extent of such inconstancy, there can be no constancy in law…We may think the law is the same if we refuse to change the formulas. The identity is verbal only. The formula has no longer the same correspondence with reality…Law defines a relation not always between fixed points, but often, indeed oftenest, between points of varying position….There is change whether we will it or not.”

He then goes on to talk about Einstein’s theory of relativity and how absolute rest and motion are meaningless, that motion is relevant only in relation to the changing position of other objects/bodies.

From there I go to Peter’s concern with how the law inconsistently metes out justice, and the inconsistencies and outright conflict found in the law. But the fault is not in the law. It is that the law, like other aspects of human behavior, is meted and controlled by humans, who are inherently prone to inconstancy and fault. Justice and the law are not inconstant, although they change continually. The opposing sides, whether the State and a defendant, or two sides in a lawsuit, vary in relation to each other, and justice moves with them.

I think the source of the breakdown in justice is as with any human system, all of which fail us continually. Look at governments, corporations, even PTA’s. Each has its own interests at center of its actions, and as a result cannot be fair and just. That is not the fault of justice. And even to mourn that condition is to mourn being human, with all its choices and beauty and pain.

This is easier to look at conceptually, the difficulty is in the individual application of justice. And here is where we come in. I harbor no illusions about changing the world, that ship has sailed. However, I can be justice (and respect and civility) to each person I interact with.

Justice is not truly based in our rules for external conduct, it is just that we have no other means to resemble it. Levy-Bruhl said that the morals of any given society at any given epoch are determined by the totality of its conditions both from a static and a dynamic view point. Social justice is a becoming if not a continuous process. Cardozo says that “Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate…Morality is not merely different in different communities. Its level is not the same for all the component groups within the same community.” Aristotle said of justice that it was that principle that was thought to partake of the nature of friendship. All of these views of justice have at their very essence a flexibility according to the totality of the situation.

By no means is this intended to be a defense of our system of justice. I do agree that it is messy and chaotic, and often justice does not result. It is, from my point of view, simply a dance-a slow dance of justice.

Per saltum

It has finally arrived. Justice Cardozo's 'The Paradoxes of Legal Science', published in 1928. Interesting that just as we struggle with the chaotic, convulsive evolution of law, he was doing the same thing, renowned jurist that he was.

He contrasts the rules of law with those of bridge building. One can build a bridge using the rules of engineering and math, and know that it will support the weight it was made to hold, and feel confident in the task completed. However, the law is made of fits and starts, sidetracks, errors and corrections and he compares it to radiation, which had previously been thought to flow in a continuous manner. (this was written circa 1928). He posits that perhaps all matter and process is really a series of fits and starts in a micro view, and only appears to be a smooth flowing mass viewed from a distance of space or time. In latin, this is known as per saltum-by leaps, or fits and starts.

"We must preserve to justice its universal quality, and yet leave to it the capacity to be individual and particular". Justice for one and justice for all. Mighty words and heady concepts, and I aspire to them. But how to obtain justice for the one who is harmed, when to grant them justice is to harm the whole body of persons?

And so I too proceed in my pursuit of wisdom and knowing. I move in fits and starts, sometimes seeming to lose ground, or to plateau, and then suddenly to see and know some great insight. I remember standing in a parking lot talking with my brother Clay after a class, and realizing that all of us have addictions and follies that tend to direct our lives in spite of our best efforts. For some that is the call of drugs or alcohol, but for some it is the ego, or drive for attention, to be the best in the room, or the inability to stop eating. We each have our demons, and some battles to overcome them seem lost for a time. But if we persist, one day we look up and realize we've moved the flag.

malice, recklessness and criminal negligence

When your housemate plays their music and you don't want the music playing, as it bothers your sense of calm and quiet, that may be criminal negligence if they should have known the harm that it would cause.

When they play it anyway, after you have explained to me how it gives you a headache and makes it impossible for you to concentrate on your studies, they may be reckless.

When the housemate plans a raucous party the night before an exam, that would be malice.

sun and toes

Parking lot lunches and the sun warming my toes on the dashboard. I don’t like the short days of winter, even though winter weather in California is more like spring in the Midwest. My favorite way to wake up is to see the sun coming up over the eastern horizon. Unfortunately by the time the sun is up, I am at work already, and headed to class as it sets. But we’re on the right side of the winter equinox, and that helps during the dark days of January.

Causation in Criminal Law, unconscionability in Contracts and owners/occupiers of land in Torts. Could life get any better?

So now my toes are curled up inside my boots as we discuss a landowner's duty of care regarding possible harm to passers-by from a decaying tree falling into the roadway. January usually brings with it gloom and the urge to go to bed until late February but this year the excitement of law brings me out of the winter stupor. While the end of April (final exams) seems distant, it is not an interminable period of time.

Of course, because of the way I'm going to law school, there will be only a week break then before the summer session begins. My natural inclination is to go someplace distant and foreign during that time off, but how far away can I get in a week's time? And then things like changing the oil in my car, weeding my garden and sorting my socks will not get done before I plunge headlong into a new semester with new professors and new topics. I'll save that decision for later, but right now I'm leaning toward running away.

unconscionability and exculpation

It seems there is a continuum of relative conscionability. It moves from fairness on the one end to taking gross advantage on the other.

The test of unconscionability is two fold:

First, is there an absence of meaningful choice? As part of this consideration, look at the relativity of bargaining power. It is most common to see gross inequality in the power to bargain when one party is a consumer and one is a larger business entity, or perhaps an employer and employee. Additionally, did the weaker/adhering party have a reasonable opportunity to understand the terms of the contract? This prong of the test looks at procedural unconscionability.

The second test is whether the terms are unreasonable or unfair-a one-sided bargain is itself evidence of the inequality of the bargaining process.

This second test raises a question about what the difference is between a well negotiated contract and taking unfair advantage. Hence the continuum- on each end of the spectrum, there is no difficulty in determining the conscionability of the terms and the outcome. It is in the middle that it gets murky.

I would like to think that if I were the party who had negotiated a good deal for myself, that the courts would not interfere with my right to contract. On the other hand, if I, as an unsophisticated consumer, were unaware of some hidden language, or misunderstood its meaning, I would like to know that principles of fairness would prevail.

To exculpate is to excuse or find blameless. Try to use that in a sentence tomorrow and then let me know how that worked out.

beware benevolence

The benevolent have a tendency to colonize, and what appears to be kindness is really a facade for control and arrogance. Beware the generous gift, at all times seek balance. Just as a parent, while perhaps having good intentions, does not give money to their young adult offspring without expectation, so too your employer, your neighbor, your enemy do not give without expectation.

When a nation or church or any other institution or individual gives to another, it does so with its own interest at heart. Sometimes that interest is to feel benevolent or holy, but the giver always gets or expects to get, more than it gives.

This seems to be a very pessimistic view of humankind, and of giving. I do not mean to discourage giving or kindnesses. Just recognize that you as the giver are really the recipient of your own largesse. And perhaps the next time you seek to control another's behavior by a compliment well timed, or direct a result by the gift you give, just call it what it is.

amicus brief

An amicus brief is written and filed by someone, not a party to the legal action, who volunteers information to the court to assist it in deciding a case. The brief is unsolicited and is often used where a case may have broader implications than just the specific case itself-it may have sweeping legal implications. There are specific rules as to who can file and how to file a friend of the court brief.

As in public legal environs, I too have established ground rules for amicus brief submission in my personal life. In order to have an amicus brief taken under consideration, please conform to the following:

1. Provide brief in writing. This may be in any written form, but email and text are preferred. Brevity is appreciated where appropriate, but misspelling and grammatical errors are burdensome to the reader and likely to detract from the import of your words.
2. You must be an interested party. To qualify as an interested party, you must have a vested interest in my well-being or integrity. This includes de facto all family members (however, status may be lost by lack of good faith dealing) and those I call friends. This does not include acquaintances, those who talk about me behind my back but pretend to be my friend and those who accuse me falsely in a court of gossip. In other words, you must generally have earned the right to file your brief before filing. Other interested parties are those impacted by my personal choices and lifestyle. I will take your brief under advisement if you can reasonably show impact.
3. Facts, logic and reason will be paramount; however, this does not preclude concepts of mercy, grace, forgiveness and compassion.
4. You are not entitled to a response to your brief, although you may receive one.

Above all, please remember that your brief is just that-and not the law. I retain the right to make all final decisions about my life.

back to work

Classes commence again in 3 days, and so I am back on the treadmill..reading, briefing, and will continue the outlining soon. I hope to be better at studying concepts and memorization as I go this semester, now that I have a better idea of what to expect in an exam, and a better understanding of what is expected of me. I can see that I could study full time and never run out of material or information to be studied. That is a bit dismaying when I am working full time in addition to going to law school. I realize there are things I'll simply miss.

Found another book I want to get-by Cardozo. I just ordered it on Amazon-looking forward to reading more from him, as so far I find I like his perspectives on things.

Also ordered my vegetable seeds and am excited about my garden as well. Balance....I need both in my life-law and dirt.