Saturday, January 05, 2008

(3089/898) Some ideas for free

2136) The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.
George Bernard Shaw
"Maxims for Revolutionists"
Man and Superman (1903)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2137) However vast the darkness, we must supply our own light.

Stanley Kubrick
interviewed by Eric Nordern
Playboy (9/1968)
Stanley Kubrick: Interviews (2001)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2138) Pathological laughter may be accompanied by a true feeling of hilarity, if the reports of the patients are to be considered trustworthy. Like pestilence, the laughter may spread. In East Africa hysterical laughter afflicted almost one thousand persons between 1962 and 1964. predominantly girls: schools were closed, parents of the victims of the laughing epidemic suffered contagion, and the disease spread to neighboring villages; exhausted by laughter, some patients required hospitalisation.
Donald W. Black
Pathological Laughter (1982)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2139) Human nature has been sold short [...] Man has a higher nature which is just as instinctive as his lower nature, and this higher nature included the need for meaningful work, for responsibility, for creativeness [...] For doing what is worthwhile and for preferring to do it well.
Abraham Maslow
Eupsychian Management: A Journal (1965)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2140) If marijuana is a dangerous drug, the greatest danger associated with smoking it may lie in being arrested.
Robert M. Julien
A Primer of Drug Action (1981)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2141) The conservative has little to fear from the man whose reason is the servant of his passions, but let him beware of him in whom reason has become the greatest and most terrible of passions. These are the wreckers of outworn empires.
Freeman Dyson
Disturbing the Universe (1979)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2142) The cine-camera and television set allow us to perceive slow motion. The concept of anything other than real time had never occurred to anybody until the first slow-motion movies were shown, and this radically altered people's perceptions of nature.
J.G. Ballard (attributed)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2143) Editing disturbs the passage of time, interrupts it and simultaneously gives it something new. The distortion of time can be a means of giving it rhythmical expression.
Andrey Tarkovsky
Sculpting In Time (1986)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

2144) In Japan something can be right and wrong at the same time. Something may be right in itself but wrong under the circumstances. Instead of right/wrong there is the concept of fit, running from poor fit to exact fit.
Edward DeBono
I Am Right You Are Wrong (1991)
quoted in "Some Ideas for Free
from Time Recording
Emit Records (c.1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 380 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/05/2008 05:51:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) Cultural politics

Alan Wolfe2134) American politics, any country's politics, are shaped by a clash between a party of order and a party of change. At some deep level these parties persist, though on the surface their names change: the Republicans were conservative a generation ago and they are now proudly radical. Since politics involve the distribution of material rewards, it generally suffices, in accounting for the party to which any given interest attaches itself, to know whether a given policy will increase or decrease its wealth and power. There is drama in politics, but relatively little mystery, which is why accounts of ancient Athens or Machiavelli's Florence are still pertinent.

But culture also has two parties. Rochelle Gurstein calls them the party of reticence and the party of exposure. At stake in clashes over culture is not the distribution of material things but the definition of what we value. One party upholds modesty, discretion, grace, shame, honor, vulnerability, refinement, privacy and character; the other party upholds brashness, rationality, science, enlightenment, democracy, equality, improvement and liberation. And there will also be interests in culture as there are in politics [...] Cultural politics contain mystery as well as drama, since the questions are murkier, and there is no easy way to know who will be on what side.
Alan Wolfe
"Sense and Sensitivity"
The New Republic (11/11/1996)
[review of The Repeal of Reticence by
Rochelle Gurstein and The Sex Side of Life
by Constance M. Chen]

2135) Cultural revolutions, like political ones, devour their own children.
Alan Wolfe
"Sense and Sensitivity"
The New Republic (11/11/1996)
[review of The Repeal of Reticence by
Rochelle Gurstein and The Sex Side of Life
by Constance M. Chen]

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 380 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/05/2008 02:11:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) Menand / Holmes

Louis Menand
2130) A case comes to court with a unique fact situation. It immediately enters a kind of vortex of imperatives. There is the imperative to find the just result in the case. There is the imperative to find the result that will be consistent with the results reached in analogous cases in the past. There is the imperative to find the result that, generalized across many similar cases, will be the most beneficial to society as a whole - the result that will send the most useful behavioral message. There is also, though less explicitly acknowledged, the desire to secure the outcome most congenial to the judge's own politics, and the desire to use the case to bend legal doctrine so it will conform better with changes in social standards and conditions, and the desire to punish the wicked and excuse the good, and to redistribute cost from parties who can't afford them (like car accident victims) to parties who can (like car manufacturers and insurance companies).

Hovering over the whole unpredictable weather pattern - all of which is already in motion, as it were, before the particular case at hand arises - is a single meta-imperative. This is the imperative to to let it appear as though any one of the lesser imperatives has decided the case at the blatant expense of the others. A result that seems just intuitively but is incompatible with legal precedent is taboo; so is a result that is formally consistent with precedent but appears unjust on its face. The court does not want to seem to excuse reckless behavior [...] but it does not want to raise too high a liability barrier to activities that society wants to encourage [...] It wants the law to run in a politically desirable direction, but it does not want to be caught appearing to bend an anachronistic legal doctrine in order to compel a politically correct result.

There is also, within each of these competing imperative, the puzzle [...] which is the business of deciding what counts as relevant within that particular discourse and what does not. This series of problems begins with the question of what the legally relevant "facts" in the case really are; it runs through the question of what counts as an applicable general legal principle, what counts as a benefit to society, and so on; and it ends with the question of what counts as a "just result."
Louis Menand
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

2131) [A]lthough we always want to reduce the degree of uncertainty in our lives, we never want it to disappear entirely, since uncertainty is what puts the play in the joints. Imprecision - the whimisicality, as it were, of the quanta - is what makes life interesting and change possible.
Louis Menand
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

2132) [Oliver Wendell] Holmes believes that experience is the only basis we have for guiding our affairs, but he also believed that experience is too amorphous, or too multiple, ever to dictate a single line of conduct. Experience makes things blurry at the edges; it reduces knowledge to a prediction of what should be the case most of the time, and we treat a prediction as absolute at our peril. We start, in the law, with a principle or concept that seems to help us decide the great mass of cases, and we therefore begin to assume this concept is fundamental. But as we move out towards the marginal cases, we begin to find that the concept actually rests on a whole submerged structure of other concepts, policies, intuitions, practices and assumptions, and at a certain point we discover that it has been emptied of predictive force.
Louis Menand
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

Oliver Wendell Holmes Jr.2133) As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. [...] But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about rights and duties. But for legal purposes a right is only the hypostasis of a prophecy - the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it.
Oliver Wendell Holmes
"Natural Law"
Harvard Law Review (1918)
quoted by Louis Menand in
"Bet-tabilitarianism" in
The New Republic (11/11/1996)
[review of The Collected Works of Justice Holmes
edited by Sheldon M. Nozick]

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 380 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/05/2008 06:19:00 AM | | | | GO: TOP OF HOME PAGE

Friday, January 04, 2008

Friday Photography: Tulips

click to enlarge
Daryl Samuel

Previous: Photos posted in 2006 / 2007: Pagoda / Ferry / Sand Tracks / General Store / Taverna Tables / Finger Piano / Bridge at Sunset / Snowfall in Cambridge / Boats / Grandma in Motion / Museum Silhouette / Brooklyn Bridge / Seascape / City Hall / Santa Fe Hotel / Lunch Break / Low Rider / Giant Crab Invades Boston! / East Meets West / Building Reflections / Flatiron Spring / Hands With Glasses / Fishing Net / Steps / Oil and Vinegar / Gas Station / Brooklyn Bridge in Sepia / Windmill on the Paralia / Santa Fe Art / Island Time / Battleship Rock / Copper Mine / Slide! / Playing Piano / Underground Cistern / Broken Windmill / Forked River / Manhattan Bridge / Hot Air Balloon / Island Engine / Park Reflections / Sultan Ahmed Mosque / Clasped Hands / Washing the Boat / Central Park Bridge / Lake Reflections / Greek Church Silhouette / Copper Mine Fly-By / Van Winkle in Autumn / Western Ave. Bridge / Christmas Tree / Sledding!

Ed Fitzgerald | 1/04/2008 03:36:00 AM | | | | GO: TOP OF HOME PAGE


(3089/898) Stand!

REM compass2129)
Stand in the place where you live
(Now face north)
Think about direction
Wonder why you haven't before

Now stand in the place where you work
(Now face west)
Think about the place where you live
Wonder why you haven't before

If you are confused, check with the sun
Carry a compass to help you along
Your feet are going to be on the ground
Your head is there to move you around

So, stand in the place where you live
(Now face north)
Think about direction
Wonder why you haven't before

Now stand in the place where you work
(Now face west)
Think about the place where you live
Wonder why you haven't before

Your feet are going to be on the ground
Your head is there to move you around
If bushes were trees, the trees would be fallin'
Listen to reason, season is callin'
W.T. Berry, P.L. Buck, M.E. Mills, J.M. Stipe (R.E.M.)
"Stand" (song, 1988) on
R.E.M. Green (cd, 1988)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 381 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/04/2008 03:35:00 AM | | | | GO: TOP OF HOME PAGE

Thursday, January 03, 2008

(3089/898) Uviller: Virtual Justice - 3

Lying2123) It is the faith of our adversary system (touching, really, in its superb naivete) that any twelve ordinary citizens can detect an untruthful live witness by the visible cues of lying. This theory supposes that, for virtually all humanity, falsehood is so uncomfortable that, magnified by hostile interrogation, the liar's discomfort cannot be concealed. The lie (we customarily forget here the honest mistake) will betray itself in tone of voice (too loud, too soft, too aggressive, too submissive), manner of articulation (crossed arms or legs, eyes aloft, rigid posture, shifting position, fingers nervously touching face and head), and other cues too subtle to describe but readily recognizable across the courtroom well. These are the products of live testimony known as demeanor evidence, and the jury is explicitly told that they may consider them in resolving the credibility issue. [...] And no one in the courtroom has the slightest problem with this. Not just lawyers and judges, but apparently almost everyone else shares the belief that liars generally give themselves away to the close observer by the rebellion of the autonomic nervous system, the locus of the conscience that cannot abide falsehood.

[...] But for all the accord, there is very little evidence to support the notion that a lie waves a behavioral flag. People simply cannot - as they think they can - read falsehood in the vocal and bodily accompaniments to recital. [...] [T]here are many studies, some better than others, and they all agree - and the unanimous verdict can hardly be ignored. [...]

[...] So much for demeanor evidence. Some commentators (me among them) believe that coherence is the prime guide to credence. The plausibility factor: jurors asking themselves, Does this story make sense? This, I believe, is the final hurdle in selling a story to a jury, the last question they ask themselves before casting their final votes. And it is the prime task of the trial lawyer to take the bits and pieces recited by the witnesses, put them together with the physical evidence, expert opinions, and whatever else there may be that fits, and advance to the jurors a coherent series of events - a compelling story - in which the jury can concur, agreeing, yes, it makes sense that it happened just that way.
H. Richard Uviller
Virtual Justice (1996)

2124) There is something peculiarly human about the concept of guilt, and it should be applied only to those who have the basic trait of an adult human animal: moral understanding.

Guilt by Joe Scorsone and Alice DruedingToday we have swarms of experts in moral understanding. They are not (as some might suppose) theologians or moral philosophers. They are psychologists (alienists, we lawyers use to call them in a wonderfully descriptive term.) Because "mental disease or defect" is generally part of the definition of legal insanity, psychiatrists, psychoanalysts, and clinical psychologists are regularly called upon to give their opinions on the mental condition of the defendants who assert this defense.

The lawyers' resort to the psychiatric guild for their guidance presents an amusing clash of intellectual cultures [...] a central paradox of any legal system,. Shrinks [...] are basically determinists. They believe in something called the personality [...] which is composed (in a disputable mix) of nature and nurture, of genetic traits and the myriad impressions of experience. Behavior is the product of personality. If a person kills another human being and no one made him do it, he did it because he was required to by his own personality. External circumstances, the events of the moment, do not cause behavior, thought they may stimulate forced within the stored potentials of personality. All things we are, civilized and primitive, are the determinants of all the things we do.

Law - especially criminal law - posits a very different motive agent in behavior, a concept without which there would be no crimes. Free will. According to this quaint idea, people are endowed with the capacity for free and intelligent choice. Adults, therefore, are responsible for their choices. Guilt, under this rubric, is the social response to a faulty choice - not a feeling, as the shrinks would have it, but a moral status. If we act only as we must, according to the wiring of our personality, we cannot be held responsible -morally or criminally - for any action. To be responsible -guilty - implies than an alternative course could have been chosen.

How, then, can we punish as criminals people who did what they did because, given who they are, they could have done nothing else? This is the disturbing paradox throbbing in the courtroom every time a shrink takes the stand to testify on the issue of insanity. [...]

[...] [To the testifying psychologist] the lawyer's standard question, "In your opinion, Doctor, did this man know or appreciate the nature and quality of his actions" becomes "Was he psychotic?" The free will/moral capacity junk then become surprisingly easy. If he was psychotic, a prisoner of his disease, the cognitive processes cannot be said to function freely and the moral judgment must reflect the delusion. The resulting evidence the doctor gives is probably heard by the jury as: "Because of his mental disease, this person should not (or should) bear moral responsibility for what he did." So the lawyers and the doctors talk their different languages at each other, and the jury usually gets enough information to do the right thing.

[...] We do not conclude from a diagnosis of psychosis - nor do we expect juries to so conclude - that the moral capacity is gone. Free will, and the responsibility it implies, survive even the most catastrophic collapse of the cognitive faculties.
H. Richard Uviller
Virtual Justice (1996)

2125) Just because conduct can be explained does not mean it should be excused. [...] Justice [...] is not satisfied by justification. [...] [A]ll crimes - especially serious crimes - can be explained. Some explanations may mitigate culpability, some may cancel it, but only as the democratically elected branch of government decides they should. Some explanations affect the severity of the punishment appropriate to the case, but guilt and punishment are two different things. Justice [...] is uncomfortable with ad hoc defenses predicated on some improvised theory of moral justification, impelled by sympathy, and built on some pseudoscientific theory of mental impairment. [...] [This] is to replace law with impulse - not a good thing.
H. Richard Uviller
Virtual Justice (1996)

2126) The issue of whether a legal excuse or justification can be predicated on a novel theory of inducement, duress, or mental irresponsibility frequently comes down to the question of whether a respectable expert can be found who will describe the condition in terms familiar to traditional concepts of culpability. [...] But there is something strange and disturbing about abdicating to the experts. There are no experts in culpability - except the jurors themselves. Some jurisprudents might claim to have discovered the essence of criminality, to know the fundamental elements of justification or excuse. For the rest of us, crimes are those defined behavioral incidents that the body politic formally declares are punishable. There are old crimes and new, serious and minor. There are even crimes that scholars call malum in se - inherently evil - and offenses that are malum prohibitum - wrong only because it is against the law. There are acts that are universally called crimes and those that are culturally specific. And that might be said of defenses. But in our tradition of legality, we do not allow either punishment or excuse because some wise and erudite person, thinking carefully and dispassionately after the fact, concludes that under circumstances the conduct was wrong and inexcusable or that it was justified. Even if a lay jury agrees.

Nullification by the jury is tolerable - just barely - under the principle of legality. It is tolerable to me because it is an extraordinary device, an escape hatch for those extreme cases in which jurors are so deeply motivated that they are willing to kick over the traces. Virtual nullification, manufactured by an expert who can convince a jury that a defendant does not deserve punishment, I find abhorrent. These experts do not pretend to be specially anointed in moral judgment; they would deny that they presume to redefine criminality to fit a particular case. But it seems to me that is precisely what they are doing. To give it an as expert opinion that a mass murderer should be excused as insane because he was suffering from black rage or she was in the throes of premenstrual syndrome, to say that a killer was unbalanced [...] because he had been eating Twinkies all afternoon, to argue that [a defendant] was not criminally responsible because he has succumbed to mod mania - or yes, even to suggest that a battered woman who slays her partner as he sleeps was justified because she was acting in self-defense - comes very close to asking a jury to acquit a guilty person because he or she does not morally deserves conviction.
H. Richard Uviller
Virtual Justice (1996)

2127) I am increasingly troubled by a [justice] system that leaves so much to the fortunes of battle, the distributions of skills and resources, the luck of the moment. To me, serious fact finding takes place in a disinterested investigation, not in a clash of opposed interests. Facts are better found by an earnest investigator than be a randomly assembled group of spectators.

An investigation-driven adjudication system would, I think, most hurt the guilty defendants who today put their hopes on the vagaries of an adversary contest. A detached investigation, focused on facts and undistracted by courtroom theatrics, is likely to point the finger unwaveringly at the guilty person [...]

[...] [A judge] cannot help but think from time to time that the inherent strain of her job is exacerbated by the adversary system, that she could more responsibly perform her duties, could concentrate her energies more efficiently, if she was not compelled to be a spectator at a contest of gladiators in a coliseum of ego where participants are goaded by the public and the media to present the important business of justice as theatre. The judge cannot help but feel that the American process of investigation and adjudication sometimes distracts her - and the other players - from the ends of literal justice and subtly substitutes the gratification of virtual justice.
H. Richard Uviller
Virtual Justice (1996)

2128) There are certainly cases, maybe even most cases, in which the evidence presented to the jury shouts "guilty" or "not guilty" loudly and clearly. Any jury, even half asleep and suffering severe reality deprivation, could not fail to see the actual truth nestled in there among the evidentiary facts. For such cases any kind of fact finder will do. But in a significant number of cases, vital credibility calls must be made between witnesses, neither of whom is off the wall. A trial does not have to drag on for months and months, testimony and documents do not have to fill shelves of transcript for a factual pattern to be complex. Pieces have to be fitted together, discarded, and amplified by imagination to recreate a true picture of a multifaceted event.

Jurors are no better equipped for that task than anyone else. In fact, many have never before grappled with a tough fact pattern, tried to make sense out of disparate reports, evaluated scientific expert opinion along with the fragmentary and bumbling accounts of chance witnesses. The courtroom setting is to jurors, as it is to participants, an artificial place in which to absorb information. The enforced, sometimes restless passivity of the juror, the masked performances of the witnesses, and the ferocious partisanship of the lawyers hardly allow the jurors room for the development of opinion and the play of personal judgment that nourish most decisions in ordinary circumstances. And the rules of evidence, beloved of trial advocates, rarely improve the flow of intelligible information to the jury box. Sending such issues into jury rooms on clouds of faith is often nothing more than inviting jurors to trust their hunches, do what they feel in their bones is right, and give us any result we can live with. This is not fact finding. This is settling for virtual justice.
H. Richard Uviller
Virtual Justice (1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 382 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/03/2008 09:36:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) Uviller: Virtual Justice - 2

No truth here, please2114) [T]he truth is rarely the best story for a guilty defendant - and most defendants are guilty.
H. Richard Uviller
Virtual Justice (1996)

2115) [S]hould we worry more about the conviction of the innocent or the acquittal of the guilty?
H. Richard Uviller
Virtual Justice (1996)

2116) I'm not sure that the guilty should go free or the innocent be shipped off to jail in the service of the values supposedly advanced by the [legally protected] privilege. To be honest, I deem it an outrage that to protect a murderer's trust in his therapist, lawyer or priest (however valuable their services may be), we allow an innocent person to be convicted by a jury who was kept ignorant of the true murderer's privileged confession. Nor am I completely reconciled to acquitting a rapist who has made a full, voluntary, and verifiable confession to a psychotherapist while seeking relief from his pangs of guilt. [...] [P]rivileges, as impediments to justice, should be suspiciously viewed and narrowly construed.
H. Richard Uviller
Virtual Justice (1996)

2117) In addition to the lawyerly duties of proficiency and loyalty, there is the energy factor. Diligence. "A Lawyer Should Represent a Client Zealously Within the Bounds of Law," Canon 7 proclaims. Today, the criminal client seems to expect zeal more on the courthouse steps than in the library, more in the trial than in preparations for it. A vigorous defense has come to connote the spurious obligations of aggression, public relations, and the earnest espousal of falsehood. True, they are some politically motivated prosecutions, overblown indictments, and genuinely innocent defendants, but counsel's predictable declarations of outrage, the confident boasts of vindication, and the on-camera professions of wounded innocence make one wonder whether the criminal defense Bar still clings to any pretense of personal honor.
H. Richard Uviller
Virtual Justice (1996)

2118) Unfortunately, most of the lawyers drawn to trial work seem to be enamored with the production - the rhetorical game that is the presentation of a case. Few are willing to let the text of the case - the facts - speak for itself. The random blows of casual aggression, the tedious and pointless pursuit of minor matters, the posturing and pouting, the hints of evidence never adduced - surely these contributions cannot enhance the accuracy of the jury's judgment. The adversary model works best when the lawyers respect the
text above the production.
H. Richard Uviller
Virtual Justice (1996)

2119) [T]he work of the defense Bar in the adversary system would seem less reprehensible if so many did not feel called upon, as a matter of diligence, to lie for their clients. Or at least to speak without personal conviction. From the pretrial declaration on the courthouse steps to the final arguments before the jury, defense counsel offers unblinking support, earnest or outraged as the occasion may warrant. Is this a market phenomena? As soon as one lawyers steps up to the microphone to vouch for his client, must all lawyers sell the same service? I do not think this segment of the Bar will persuade the rest of us of their integrity as long as vouching remains commonplace.

Surprising as it may be to courthouse buffs and casual observers alike, the codified ethical imperatives of the Bar - the Code of Professional Responsibility and the Model Rules of Professional Conduct - both provide that a lawyer shall not knowingly make a false statement of law or fact to a tribunal. [...] If the world "knowingly" is too easily flung around the wholly conjectural, amply refuted assertion, my solution is: let's change the word and enjoin lawyers from making statements they have no good reason to believe are true. I would go further and extent the lawyers' obligation of truth telling to public and professional situations beyond the courtroom walls - but the world is probably not ready for so radical a proposal.
H. Richard Uviller
Virtual Justice (1996)

2120) [T]here is considerable value in the plea bargaining process wholly apart from its docket-clearing utility. I can think of at least two good things to say about it. First, I believe that the prosecutor and defense counsel are in at as good a position as the judge and the probation officer to evaluate the gravity of the crime and the character of the defendant. Not that they should take over the sentencing responsibility from the court; I lament the courtrooms where that has happened to the pleading process. Sentencing is, ultimately, what judges are for. But the lawyers may have an important contribution to make to the exercise of judicial discretion. And they are certainly better suited for the job than the legislature. In fact, the lawyers are there, in large part, to relieve the rigidity that the legislature imposes upon the process.

Ideally, disposition of criminal charges by guilty plea should be a responsibility nicely shared among the branches. The legislature identifies the crimes, divides them into degrees of gravity, and sets rather broad limits of sentence for each grade. These are essentially choices to be made by the representative branch. The executive determines who should be charged and with what. Prosecutors, as executive branch officers, "enforce the laws" by performing the job. The judge, after managing the process and assuring a fair, orderly disposition according to the law, selects the appropriate punishment for each individual offender.

Click for larger imageIt's a nice schema. But it is vulnerable to the political process. The anger of the electorate at the high crime rate is loudly communicated to their elected representatives, who readily (and foolishly) agree that the problem stems from the excessive leniancy of the executive and judicial branches. The easiest way a legislator can demonstrate concern is to enact legislation that limits discretion and forces the soft branches to stiffen up. Harsher sentences, minimum sentences, mandatory jail time, standardized "grid" sentencing, and restrictions on reductions of charges by guilty plea are some of the common results of this legislative ardor. The irony is that at the same time in many places, the legislators, wary of the high cost of building new prisons, connive at "early release" programs that let out dangerous people long before they are eligible for parole on their imposed sentences. These invisible little back-door, budget-wise, across-the-board jail deliveries are another testament to legislative hypocrisy, a small scandal waiting to happen.

It them becomes incumbent on the executive and judicial players to circumvent and undermine these measures whenever they see a case they believe demands a more realistic disposition. I believe that, insofar as the plea bargaining system brings individualized judgment and warranted compassion back into the system, insofar as it serves to make finer cuts on culpability that the gross legislative scheme allows, it is a good and valuable part of the process. It help to keep the human dimension in the dehumanizing business of processing criminal cases.

My second good thing to say is that I think the criminal defendant is entitled to know with the greatest possible certainty what he faces. [...] A criminal defendant, innocent or guilty, is entitled to know what he is risking and what he is settling for before he makes the important choice. So if the lawyers, with the agreement of the judge, have reevaluated his crime, factoring in all the aggravating and mitigating circumstances of his personal situation, and decided that his crime (which by genre the legislature pegged at up to fifteen) is worth about five years in prison, the defendant should know it. I prefer an intelligent choice to the blind leap onto the "mercy" of the court. [...]

For every defendant who comes out of the machinery of accusation [...] a conference should be held among opposing counsel and the presiding judge during which the individual case is fully evaluated on its special merits and an appropriate sentence settled upon. Of course it is understood that any new facts bearing on the gravity that come out at a trial would necessitate a new evaluation. Then a standard reduction should be allowed for the guilty plea, lets say a 20 percent discount for saving the state the time and risk of a trial, 40 percent if the prosecutor labels the case a tough one to prove. [...] These numbers are adjustable according to the grade of stress in the jurisdiction. In a nice slow jurisdiction, with plenty of court time available for criminal trials, I can see discount rates of 10 and 25 percent; in a really stressed jurisdiction, perhaps 33 and 60 percent, maybe even higher. We might also have a category for especially heinous crimes which are evaluated at the top of the range set by the law. These cases the prosecutor could withdraw altogether from the standard allowance. These presumably would be tried because the defendant would incur little risk by trial, aside from the revelation of facts that make the judge lower an already low opinion of the brute. We also need an flexible discount factor for the "cooperating" defendant.

In all, the prevailing system of plea bargaining seems both better and worse than its popular image. It is better because by and large it neither cheapens crime by overgenerous allowances nor discriminates against the poor and friendless defendant. Whether it induces guilty pleas from the innocent is hard to say, but it is probably true that most of those who plead guilty would be convicted on trial. At the same time the system is worse than its image because it unavoidably levies a tax on those who elect to exercise their constitutional right to trial by jury.
H. Richard Uviller
Virtual Justice (1996)

2121) The Fourth Amendment [...] speaks of a supporting statement [necessary for a magistrate to issue a warrant] "on oath or affirmation" but not of a written affidavit. The affidavit, laboriously composed, submitted, edited, revised, and taken physically to judge by the officer - this is the source of the hassle. Let's try to dispense with it and see what is left.

What if we had a permanent, round-the-clock, three-way radio hook-up connecting the police radio in the field to a prosecutor on call and a judge on regular, rotating duty. Let's put a scrambler and an automatic recording device on the line and a pad of blank search warrant forms in every patrol car. When an officer [...] gets his hot tip [...] he gets on the radio and in minutes is connected to the prosecutor and the judge. The judge puts him under oath and the agent describes over the air where he is, what he knows (or has been told) and what he wants. He is questioned by both the prosecutor and the judge. If the judge finds the probable cause is weak, she may decline the application and the prosecutor may advise the cop how to beef it up. If the judge is satisfied, she will direct the agent how to fill out the warrant form and will authorize the agent to affix the judge's name. [The agent] will them proceed [...] until the next move, requiring new authorization, must be made [...] at which time a new radio call will provide a new warrant if appropriate. [...]

It's flawless. It accomplishes all the the [Supreme] Court has been urging for so long: warrants become the ordinary and customary way to accomplish searches and seizures. And we do not have to suffer the anomaly of lost prosecutions of guilty criminals in order to protect people against unreasonable invasions of security.
H. Richard Uviller
Virtual Justice (1996)

2122) [W]hat's going on [with a lawyer's exercise of peremptory challenges]? Can a lawyer pick jurors like horses at a horse race, by the judicious application of impulsive hunch? Like candidates for lesser political office, by the shameless employment of blatant bigotry and crude stereotype? Shouldn't the community be represented on the jury by some chance configuration of its constituent groups? [...] [The peremptory challenge is] one of the monumental paradoxes in the American criminal justice process. [...] Having scrupulously composed a potential jury, representatives of the community as a whole and free of any bias, we allow the lawyers to superimpose their personal set of prejudices to recompose the jury as the most favorably biased group that each side can come up with before exhausting their share of peremptory challenges. Sometimes (if the attorneys are sufficiently astute - and have enough challenges), the adversarial setoff in the use of peremptories produces not a jury of opposed predilections but a bland compromise of jurors whose biases are well concealed or who have no predispositions of any sort. Needless to say, these people are either not the most forthcoming of citizens or are not the most alert and sensitive, those who have the broadest experience with life. Maybe not the best kind to sit on criminal juries. But most of those who display an "outlook" or who appear to have given some thought to issues of crime and culpability have probably fallen to the peremptory axe. [...]

[...] [T]he peremptory challenge is incompatible with the whole notion of a randomly drawn panel of citizens of all stripes. Though the trial Bar trembles at the prospect of an unbiased jury sworn as they come down the chute; though lawyers cannot conceive of playing the trial with a fully shuffled deck, the only solution to the pernicious exercise of peremptory challenges is their virtual abolition. The stoutest defender of the prerogative can advance not a single benefit from the blind exercise of challenges. [...] Trial lawyers will learn to live without their self-touted hunch about jurors, their crude, unverifiable, and often mistaken predictions of juror sympathy and disposition. [...] And (in addition to expedition) the trial process will regain a measure of much needed dignity.
H. Richard Uviller
Virtual Justice (1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 382 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/03/2008 06:46:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) Uviller: Virtual Justice - 1

Virtual Justice by H. Richard Uviller
2105) The criminal justice system of the United States is, in many ways, our proudest boast, incorporating the best of post-Enlightenment society and daily demonstrating the free and final authority of the ordinary people, sitting as juries, to rule the state's awful power to punish. Yet the system often seems to defeat the very principles it purports to serve: the fair and efficient separation of guilty from innocent, according to law, in a dignified and rational proceeding, with appropriate respect for the sovereignty of the individual. Too often the burnished ideals are borne on the back of a stumbling creature, lost in a fog of uncertainty. Common sense finds itself groping through a legal maze, common practice has an aura of questionable legality, and many common assumptions - of law enforcement people as well as spectators - turn out to be contrary to the requirements of the law. Occasional public exposure of these failures contributes to a general belief that the law is indeed an ass (at best) - inept, pretentious, and misguided.

To perceive that a prized national institution is failing in some important aspect is a bitter and demoralizing discovery. For the ends of justice are a vital social interest. [...] [T]he criminal justice system [...] affects the social peace and confidence of the nation. And our faith in our criminal justice system contributes heavily to the belief that we live in a civilized society.

Of the many ways we strive to make sense of the chaos the surrounds us, the quest for justice is one of the most urgent. The moral imperative - the need to have things come out right - is a major driving force in the way we seek to order our world. [...] [I]t is [...] terribly important to us personally and to our pride in the society we inhabit to believe that rewards and punishments are distributed in accord with what the collective ethic deems just deserts. [...]

Sadly most of us are resigned to he injustice of "life." We don't really expect nature to bless the virtuous or plague the evildoers. But we demand more of our government. And government's most visible agency for dispensing justice is, of course, the court system and especially the very-newsworthy criminal court. In an unjust world, we expect - we demand - recognizable justice from our courts.
H. Richard Uviller
Virtual Justice (1996)

2106) [W]e lawyers make it up as we go along. [...] [W]e "do justice" by taking a set of inexact legal metrics, consulting our various fragments of moral ethics, appealing reverentially to common sense, and hoping the outcome accords with some shared notion of the appropriate response of a civilized people to a cruel affliction.
H. Richard Uviller
Virtual Justice (1996)

2107) [O]ur courts must sort the guilty from the innocent with the highest possible factual accuracy within a process that accords due deference to basic principles of human dignity.
H. Richard Uviller
Virtual Justice (1996)

2108) Lawyers talk a lot about the facts. [...] But what are "facts"? To courtroom lawyers, facts are the relics of past events, things that actually happened out there in the real world. Today the events are gone, vanished into the elusive, misty realms of memory and cause. Now, in court, we must produce some evidence of these vanished events. Only a moment's reflection brings any thoughtful observer up against the Great Evidentiary Riddle - a basic, inescapable, and deeply perplexing uncertainty in the relation between present fragmentary and subjective data and the objective past. To what extent is the knowable, transmissible fact the reality it purports to represent? How well do the fragments of the past that come to us by the selective process of memory or the happenstance of preservation represent the complex reality of the former present?

Fortunately, the law ignores these troubling philosophical issues [...]
H. Richard Uviller
Virtual Justice (1996)

2109) In criminal cases, the burden of persuasion is always on the prosecution. And to a high degree of certainty: "beyond a reasonable doubt." That allocation of burden - and only that - is what we mean by the presumption of innocence.
H. Richard Uviller
Virtual Justice (1996)

2110) I rank high among our basic drives a need to make sense of things. The human brain is wired, I am convinced, to abstract principles from perceptions, to form theoretical constructs around experience. It is important, then to keep the faith in these constructs once they have been articulated. And the discontinuities in legal doctrine are disturbing for that reason. They suggest either weakness in the construct or lack of rigor in its application. This may be too hard a judgment on the flawed human endeavor to keep the governing principles of the law clear and straight. But it suggests that the interpretation of law is a sincere and useful enterprise of articulation and clarification.
H. Richard Uviller
Virtual Justice (1996)

2111) According to the FBI, the murder rate in the United States increased 62 percent between 1987 and 1992, when 13,220 Americans were murdered with handguns. That number compares with a total of 367 in Great Britain, Sweden, Switzerland, Japan Australia, and Canada combined, countries whose aggregate population of 239 million is comparable to the 249 million in the United States.
H. Richard Uviller
Virtual Justice (1996)
Oh well...
2112) Aggressive police patrol carries an unmistakable whiff of fascism. We can't let civic fear put basic liberties at risk. At the same time, I deeply believe that before we can call ourselves civilized, the government must do what is can to secure the physical safety of its citizens; in today's urban world, that means first and foremost: get the guns off the street.
H. Richard Uviller
Virtual Justice (1996)

2113) My thinking self, I say (mangling Descartes), is the essence of me. And what it means to live in a liberal democracy is that my sovereignty over myself is respected by the government.
H. Richard Uviller
Virtual Justice (1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 382 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/03/2008 05:53:00 PM | | | | GO: TOP OF HOME PAGE


An Iowa prediction

I'm going to go way out on a limb here, and say that whatever the outcome in the Iowa caucuses, we are not going to see any equivalent of the so-called "Dean scream" this cycle. These people are going to be so completely and entirely buttoned-down and on-message that they'll probably suck the spontaneity out of the entire state and 100 miles around it.

Ed Fitzgerald | 1/03/2008 12:07:00 PM | | | | GO: TOP OF HOME PAGE


A reading meme

From Eliot Gelwan's Follow Me Here, adapted from David Brake.

These are the top 106 102 books most often marked as “unread” by LibraryThing’s users. Now, be honest. Bold what you have read, italicize those you started but couldn’t finish, strikethrough for books you have no desire to read, a question mark in front for books you never heard of and X in front of what you couldn’t stand. Add an asterisk to those you’ve read more than once. Underline those on your to-read list. Choose up to five favorites from among those you have read on the list and preface them with an exclamation point.
    ? Jonathan Strange & Mr Norrell
    Anna Karenina
    Crime and Punishment
    ! Catch-22 *
    One Hundred Years of Solitude
    Wuthering Heights
    The Silmarillion
    Life of Pi : a novel
    The Name of the Rose
    Don Quixote
    Moby Dick
    The Odyssey
    Pride and Prejudice
    Jane Eyre
    A Tale of Two Cities
    The Brothers Karamazov
    ! Guns, Germs, and Steel: the fates of human societies
    War and Peace
    Vanity Fair
    ? The Time Traveler’s Wife
    The Iliad
    ? The Blind Assassin
    The Kite Runner
    Mrs. Dalloway
    Great Expectations
    ? American Gods
    Atlas Shrugged
    Reading Lolita in Tehran: a memoir in books
    Memoirs of a Geisha
    Wicked: the life and times of the wicked witch of the West
    The Canterbury Tales
    ? The Historian: a novel
    A Portrait of the Artist as a Young Man
    Love in the Time of Cholera
    Brave New World
    X The Fountainhead
    Foucault’s Pendulum
    The Count of Monte Cristo
    A Clockwork Orange *
    ? Anansi Boys
    The Once and Future King *
    The Grapes of Wrath
    ? The Poisonwood Bible: a novel
    Angels & Demons
    The Inferno
    The Satanic Verses
    Sense and Sensibility
    The Picture of Dorian Gray
    Mansfield Park
    One Flew Over the Cuckoo’s Nest
    ? To the Lighthouse
    Tess of the D’Urbervilles
    Oliver Twist
    Gulliver’s Travels
    Les Misérables
    The Corrections
    ? The Amazing Adventures of Kavalier and Clay
    ? The Curious Incident of the Dog in the Night-time
    ! Dune *
    The Prince
    The Sound and the Fury
    Angela’s Ashes : A Memoir
    ? The God of Small Things
    A People’s History of the United States: 1492-present
    ? Neverwhere
    A Confederacy of Dunces
    ? A Short History of Nearly Everything
    The Unbearable Lightness of Being
    ? Beloved
    ! Slaughterhouse-Five *
    The Scarlet Letter
    Eats, Shoots & Leaves
    The Mists of Avalon
    ? Oryx and Crake: a novel
    Collapse: How Societies Choose to Fail or Succeed
    ? Cloud Atlas
    The Confusion
    ? Northanger Abbey
    The Catcher in the Rye
    On the Road *
    The Hunchback of Notre Dame
    Freakonomics: a Rogue Economist Explores the Hidden Side of Everything
    Zen and the Art of Motorcycle Maintenance
    The Aeneid
    X Watership Down
    Gravity’s Rainbow
    ! The Hobbit *
    ? White Teeth
    Treasure Island
    David Copperfield

Please place a comment below if you are spreading the meme onward by posting your list on your site.

Ed Fitzgerald | 1/03/2008 10:55:00 AM | | | | GO: TOP OF HOME PAGE


(3089/898) Fussell: BAD or, The Dumbing of America

Paul Fussell
2099) What makes Americans more credulous than other people? Is it the collapse of the educational system, which makes acute reasoning about cause and effect a rarity, and an "elitist" one at that? Is it that more and more Americans have attended BAD colleges and universities? Or is the current gullibility a compensation for the inevitable disappointments engendered by the common view that life promises everyone splendid rewards, especially the "happiness" the Declaration [of Independence] sets forth as a target? When you find that after all your dogged consumption in obedience to advertising you're still not "happy" ("Is this all?"), what to do but seek another dimension of hope by means of auras, Karmic Analysis, Miracle Prayer Cloths, Chakra Balance, crystals, soothsayers, horoscopes, copper bracelets (for that pesky arthritis), UFO abduction, the visit of extraterrestrials ("aliens"), past-life therapy, and out-of-body travel?
Paul Fussell
BAD or, The Dumbing of America (1991)

2100) The case of America is [...] not to be fairly understood without making due allowance for a certain prevalent imbalance and derangement of mentality. [...] Perhaps the commonest and plainest evidence of this unbalanced mentality is to be seen in a certain fearsome and feverish credulity with which a large proportion of the Americans are affected.
Thorstein Veblen
"Dementia Praecox"
The Freeman (6/21/1922)
quoted by Paul Fussell in
BAD or, The Dumbing of America (1991)

2101) To [the credulous] convictions of conspiracy come easily. To them, a matter of crucial importance and a national scandal is the way the government is covering up the numerous visits of aliens from other worlds. They like to land in the American Southwest - never near Cal Tech, Stanford, MIT, or the National Academy of Sciences.
Paul Fussell
BAD or, The Dumbing of America (1991)

2102) [I]t is really reductive to call what we have now a "publishing industry," when what it is is a media complex, in which promotability, not literary merit, is the sine qua non.
Larry McMutry
quoted by Paul Fussell in
BAD or, The Dumbing of America (1991)
'BAD or, The Dumbing of America' by Paul Fussell
2103) [Americans] are a very decent, generous lot of people out here, and they don't expect you to listen. Always remember that [...] It's the secret of social ease in this country. They talk entirely for their own pleasure. Nothing they say is designed to be heard. [...] Of conversation as I love it, with anecdotes occurring spontaneously and aptly, jokes growing and taking shape, fantasy - they know nothing.
Evelyn Waugh
The Loved One (1948)
quoted by Paul Fussell in
BAD or, The Dumbing of America (1991)

2102) Local TV news, as distinguished from national, tends to be more bad than BAD. Where national news specializes in single stars [...] local news requires its players to emphasize that none is preeminent; instead, they are members of a "news team," which invariably includes:
  • one woman (often Asian)
  • one black
  • one white male news reader
  • one white (sometimes black) sports news reader
  • one weather person, often a woman.
The implication is that this group consists of just folks, people no better, and surely no smarter, than you, but for the moment trustworthy servants of authenticity. And charm [...]
Paul Fussell
BAD or, The Dumbing of America (1991)

2103) [T]elevision has consummated a perfect fusion between the most cynical capitalism and the most sentimental populism.
Paul Fussell
BAD or, The Dumbing of America (1991)

2104) The USA is the world headquarters of moral pretension.
Paul Fussell
BAD or, The Dumbing of America (1991)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 382 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/03/2008 02:00:00 AM | | | | GO: TOP OF HOME PAGE

Wednesday, January 02, 2008

(3089/898) About nations

2097) It is worth remembering that normal nations are confronted with domestic conflicts, social divisions, and political dilemmas and that in addition they are nations with histories, often complicated, painful and difficult histories, with which they must learn to live.
James J. Sheehan
"1871,1990: Kontinuitat und Wandel
in zwei Vereinigungen"
quoted by Gordon A. Craig in
"The New Germany" in
New York Review of Books (10/31/1996)
[review of The Politics of Memory: Looking for
Germany in the New Germany
by Jane Kramer]

2098) If the inexplicable occurs in Russia, the mafia is probably behind it. If the bizarre happens in Japan, a bureaucrat ordered it. In America, suspect lawyers.
"Sex and drugs and nutty schools"
The Economist (10/18/1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 383 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/02/2008 10:35:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) Science and dissent in China

2096) "Science" and "dissent" [...] turn out to have some intrinsic connections. Sensing as much, Chinese authorities have always been leery of science, especially "pure" science; the spread of scientific ideas among the Chinese public could make authoritarian rule more difficult. [...] What is it about science that makes Chinese scientists think about democracy? [...] [S]cientific thinking seems to involve some premises that naturally pull a person toward democratic assumptions. [...]

  1. Science begins with doubt. In order to make a scientific advance, one must begin by wondering about the received version of things. But this is also called "dissent." [...] Even an elementary course in physics takes up the problems of error. Students are taught that the only defense against error lies in the scientists willingness always to question [...] From assumptions like these, it is hard to swallow an authoritarian's command to "believe X and don't ask why" [...]

  2. Scientific doubt leads to individual independence. [...]

  3. Science is egalitarian. Objective scientific truth is something that lies beyond the variety of subjective views; statements of objective truth are formed only by a consensus of many observers, and are confirmed by independently repeating experimental results. No single observer is privileged; anyone may form hypothesis, and any hypothesis has to be tested by others before "truth" emerges. [...]

  4. Science needs free exchange of information. [...]

  5. Science is universal. Scholars of Chinese literature normally think of themselves as working in a different field from colleagues who work on Indian or French literature. The same generally holds for fields of history, philosophy, or art. But there is no such thing as Chinese or Indian science - or, as the Nazis once seriously claimed, "German science." [...]
Li Xingman, the plain-speaking editor at the Bulletin of Natural Dialectics [...] has taken considerable risks when he argues that scientists tend to approach human values similarly to the ways in which they search for truth in nature. And serious inquiry, Li argued in 1990, begins with individual "independence" and "tolerance." Then:
From these basic premises [...] arise step by step a series of values: dissent, freedom of thought and speech, impartiality, honor, and human dignity and self-worth. These are human values that science embodies, and people who espouse them promote both the development of science and the progress of society.
Fang Lizhi and Perry Link
"The Hope for China"
New York Review of Books (10/17/1996)
[review of, and quoting from, Science and Dissent
in Post-Mao China: The Politics of Knowledge
H. Lyman Miller]

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 383 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/02/2008 10:32:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) Left and right, America infiltrates

2093) One sense in which the 1960s produced two utopias is that while both the left and the right lost their faith in government, some preserved a confidence that a benign anarchy was possible - that human beings might be both free and happy if they got government off their backs. The rise of neoconservativism mirrored the rise of the utopian left in more way than one, of course. One conservative impulse was simply to oppose all talk of liberation. When young people on the left decided that they had had enough of sexual propriety, this upset people like Irving Kristol and helped to prepare the way for the current, strange alliance between Jewish, highly educated, urban ex-liberals and the very different supporters of the Christian Coalition.

What is more interesting is the degree to which the libertarian, or Hayekian, defense of free markets, laissez-faire, and much-reduced government intervention appealed to the same distrust of centralized authority and bureaucratic regulation that the 1968 left had expressed. [...]

On the whole, though, American conservatives have been uneasy about the libertarian case. Libertarians tend to be skeptical about the Pentagon, to urge the criminalization of drug use, and to be rather relaxed about prostitution and pornography. Conservatives notoriously want weak government control of business and finance; but they tend to favor strong police and military power on the one hand and to be culturally authoritarian on the other.
Alan Ryan
"Dream Time"
New York Review of Books (10/17/1996)
[review of A Tale of Two Utopias: The Political
Journey of the Generation of 1968

by Paul Berman]
Prof. Alan Ryan
2094) To [the] Eastern European [radicals] of 1989, the United States was the favored model of the liberal-capitalist society. [...] [W]hat was wanted was American capitalism without America's racial tensions, urban blight, and inadequate welfare state. [...] To students of sociological theory, it was the United States described in the first volume of Alexis de Tocqueville's Democracy in America. But the deeper truth was that it was the fantasy of America captured in Oklahoma! or On the Town - friendly, high-spirited, resourceful and self-reliant - that the class of 1989 had fallen for.
Alan Ryan
"Dream Time"
New York Review of Books (10/17/1996)
[review of A Tale of Two Utopias: The Political
Journey of the Generation of 1968

by Paul Berman]

2095) The Americanization of world culture means not only that Coca-Cola will rot the teeth and American pop music change the musical sensibilities of the rest of the globe, but that American aspirations of personal, sexual tolerance and happiness may also follow. Feminist demands for equality between the sexes are met with anger in many parts of the world, but they are making slow, steady headway nonetheless. Demands for tolerance for sexual minorities are following in their wake [...]
Alan Ryan
"Dream Time"
New York Review of Books (10/17/1996)
[review of A Tale of Two Utopias: The Political
Journey of the Generation of 1968

by Paul Berman]

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 383 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/02/2008 09:41:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) The Curse of American Politics

Ronald Dworkin
2088) The sheer volume of money raised and spent is not the only defect in contemporary American politics. The national political "debate" is now directed by advertising executives and political consultants and conducted mainly through thirty-second, "soundbite" television and radio commercials that are negative, witless, and condescending; these ads [...] drive political moderates into not voting, leaving the field to partisans and zealots. Television newscasts, from which most Americans now learn most of what they know about candidates and issues, are more and more shaped by rating wars, in which network and local news bureaus are pressed to provide entertainment rather than information or analysis, and by feature reporters, whose definition of success is to become celebrities themselves, with huge salaries and lecture fees, and public recognition that often dwarfs that of the politicians they supposedly cover.

But money is the biggest threat to the democratic process. [...] Money is not only the biggest problem, but in good part the root of other problems as well. If politicians had much less to spend on aggressive, simple-minded television spots, for example, political campaigns would have to rely more on reporters and on events directed by non-partisan groups, like televised debates, and political argument might become less negative and more constructive. Money is, moreover, also the easiest problem to solve, at least in theory. A free society cannot dictate the tone its politicians adopt of the kind of arguments they offer the public, or what political news or scandal reporters do or do not print, or how carefully television commentators analyze what the candidates have offered or opposed. But a free society can - or so it would seem - limit the amount of money that candidates or anyone else may spend on political campaigns.
Ronald Dworkin
"The Curse of American Politics" in
New York Review of Books (10/17/1996)

2089) Citizens play two roles in a democracy. As voters they are, collectively, the final referees or judges of political contests. But they also participate, as individuals, in the contests they collectively judge: they are candidates, supporters, and political activists; they lobby and demonstrate for and against government measures, and they consult and argue about them with their fellow citizens. [...] [W]hen wealth in unfairly distributed and money dominates politics, then, though individual citizens may be equal in their vote and their freedom to hear the candidates they wish to hear, they are not equal in their own ability to command the attention of others for their own candidates, interests, and convictions. [...] [T]he most fundamental characterization of democracy - that it provides self-government by the people as a whole - supposes that citizens are equal not only as judges but as participants as well. [...] [E]ach citizen must have a fair and reasonably equal opportunity not only to hear the views of others as they are published or broadcast, but to command attention for his own views, either as a candidate for office or as a member of a politically active group committed to some program or conviction. No citizen is entitled to demand that others find his opinions persuasive or even worthy of attention. But each citizen is entitled to compete for that attention, and to have a chance that is now denied almost everyone without great wealth or access to it.
Ronald Dworkin
"The Curse of American Politics" in
New York Review of Books (10/17/1996)

2090) [T]he tone of public discourse must be appropriate to the deliberation of a partnership or joint venture rather than the selfish negotiations of commercial rivals or military enemies. This means that when citizens disagree they must present their arguments to one another with civility, attempting rationally to support policies they take to be in the common interest, not in manipulative, slanted, or mendacious pitches designed to win as much of the spoils of politics as possible by any means.
Ronald Dworkin
"The Curse of American Politics" in
New York Review of Books (10/17/1996)

2091) [D]emocracy - self-government by the people as a whole - is always a matter of degree. It will never be perfectly fulfilled, because it seems incredible that the politics of a pluralistic contemporary society could ever become as egalitarian in access and as deliberative in tone as the standards [...] demand. We would then understand democracy not as a pedigree a nation earns just by adopting some constitutional structure of free elections, but as an ideal toward which any would-be democratic society must continually strive.
Ronald Dworkin
"The Curse of American Politics" in
New York Review of Books (10/17/1996)
2092) The defining election of the twenty-first century may not come for a decade or more. The questions that animate an age only become clear when, under pressure of events, people find ways of explaining the new circumstances in which they live. The election that "built the bridge" to the twentieth century did not occur until 1912. It was then that Woodrow Wilson, the Democrat, and Theodore Roosevelt, running on the Bull Moose ticket, articulated the big ideas that gave shape to the twentieth century.

Michael SandelTheir predicament was similar to ours. Then, as now, their was an uneasy fit between the scale of economic life and the terms of political community. Railroad, telephones, telegraphs wires and daily newspapers spilled across local boundaries, bringing people into contact with events in distant places. National markets and a complex industrial system made workers and consumers interdependent. But Americans, accustomed to finding their bearings in small communities, felt powerless in the face of forces beyond their control. A decentralized political system, invented for a nation of farmers and shopkeepers, was dwarfed by the power of giant corporations.

How could a locally based democracy govern an economy national in scope? That question divided Wilson and Roosevelt. Wilson argues for breaking up the trusts and decentralizing economic power so it could be held accountable by local political units. [...] Roosevelt considered big business an inevitable product of industrial development and saw little point in trying to restore the decentralized economy of the nineteenth century. The only way to content with national economic power, he argued, was to enlarge the capacity of national democratic institutions. The solution to big business was big government. Roosevelt sought to meet national economic power with national political power. But he insisted that a national democracy required more than the centralization of government; it also required the nationalization of politics. The political community had to be recast on a national scale. [...]

Wilson won the election, but Roosevelt's "New Nationalism" won the future. [...] But today we face a new predicament similar to the one America confronted early in this century. Now, as then, new forms of commerce and communication spill across national boundaries, creating networks of interdependence while disrupting familiar forms of community. What railroad, telegraph wires and national markets were to their time, cyberspace, CNN and global markets are to ours - instruments that link people in distant places without making them neighbors, or fellow citizens, or participants in a common venture. Once again, the scale of economic life has outgrown the reach of existing democratic institutions. This explains the sense of disempowerment that hovers over our politics, the gnawing doubt that either party can do much to allay the anxieties of our age.

That we are not debating questions analogous to those that preoccupied Wilson and Roosevelt reveals the poverty of our politics.
Michael J. Sandel
"The Hard Questions: Big Ideas" in
The New Republic (10/14/1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 383 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/02/2008 06:36:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) The Last Taboo

Wendy Kaminer
2077) If I were to mock religious beliefs as childish, if I were to suggest that worshiping a supernatural deity, convinced that it cares about your welfare, is like worrying about monsters in the closet who find you tasty enough to eat, if I were to describe God as our creation, likening him to a mechanical gorilla, I'd violate the norms of civility and religious correctness. I'd be excoriated as an example on the cynical, liberal elite responsible for America's moral decline. I'd be pitied for my spiritual blindness; some people would try to enlighten and convert me. I'd receive hare mail. Atheists generate about as much sympathy as pedophiles. But, while pedophilia may at least be characterized as a disease, atheism is a choice, a willful rejection of beliefs to which vast majorities of people cling.

Yet conventional wisdom holds that we suffer from an excess of secularism. [...] In fact, almost all Americans (95 percent) profess a belief in God or some universal spirit, according to a 1994 survey by U.S. News and World Report. Seventy-six percent imagine God as a heavenly father who actually pays attention to their prayers. Gallup reports that 44 percent believe in the biblical account of creation and that 36 percent of all Americans describe themselves as "born-again." [...]

In this climate - with belief in guardian angels and creationism becoming commonplace - making fun of religion is as risky as burning a flag in an American Legion hall. But, by admitting that they're fighting a winning battle, advocates of renewed religiosity would lose the benefits of appearing besieged. Like liberal rights organizations that attract more money when conservative authoritarians are in power, religious groups inspire more believers when secularism is said to hold sway. [...] When forced by facts to acknowledge that God enjoys unshakable, non-partisan, majoritarian support, religion's proselytizers charge that our country is nonetheless controlled by liberal intellectual elites who disdain religious beliefs and have denied it a respected public role. [...] [In actuality] what's striking about American intellectuals today, liberal and conservative alike, is not their Voltairean skepticism but their deference to belief and their utter failure to criticize, much less satirize, America's romance with God.
Wendy Kaminer
"The Last Taboo" in
The New Republic (10/14/1996)

2078) Man is a marvelous curiosity [...] he thinks he is the Creator's pet [...] he even believes the Creator loves him; has a passion for him, sits up nights to admire him; yes and watch over him and keep him out of trouble. He prays to him and thinks He listens. Isn't it a quaint idea.
Mark Twain (Samuel Clemens)
Letters from the Earth (1909)
quoted by Wendy Kaminer in
"The Last Taboo" in
The New Republic (10/14/1996)

2079) [Religion is] so absurd that it comes close to imbecility.
H.L. Mencken
Treatise on the Gods (1930)
quoted by Wendy Kaminer in
"The Last Taboo" in
The New Republic (10/14/1996)

2080) Since the early days, [the organized church] has thrown itself violently against every effort to liberate the body an mind of man. It has been, at all times and everywhere, the habitual and incorrigible defender of bad governments, bad laws, bad social theories, bad institutions. It was, for centuries, an apologist for slavery, as it was an apologist for the divine right of kings.
H.L. Mencken
Treatise on the Gods (1930)
quoted by Wendy Kaminer in
"The Last Taboo" in
The New Republic (10/14/1996)
Mark Twain and H.L. Mencken2081) If evolution is true, then it has nothing to fear from some other theory being taught.
an unnamed Tennessee state senator
quoted by Wendy Kaminer in
"The Last Taboo" in
The New Republic (10/14/1996)

2082) [L]egislation is often based in religion [...] You'd be hard-pressed to find a period in American history when majoritarian religious beliefs did not influence law and custom. From the nineteenth century through the twentieth, anti-vice campaigns - against alcohol, pornography and extramarital or premarital sex - have been overtly religious, fueled by sectarian notions of sin. Domestic relations laws long reflected particular religious ideas about gender roles (which some believe are divinely ordained.) But religions impact on law is usually recognized and deemed problematic only in cases involving minority religious views: Christian ideas about marriage are incorporated into law while the Mormon practice of polygamy is prohibited.
Wendy Kaminer
"The Last Taboo" in
The New Republic (10/14/1996)

2083) Secularists are often wrongly accused of trying to purge religious ideas from public discourse. We simply want to deny them public sponsorship. Religious beliefs are essentially private prerogatives, which means that individuals are free to invoke them in conducting their public lives - and that public officials are not empowered to endorse or adopt them.
Wendy Kaminer
"The Last Taboo" in
The New Republic (10/14/1996)

2084) Advocates of religiosity extol the virtues or moral habits that religion is supposed to instill in us. But we should be equally concerned with the intellectual habits it discourages.

Religions, of course, have their own demanding intellectual traditions, as Jesuits and Talmudic scholars might attest. Smart people do believe in Gods and devote themselves to uncovering Their truths. But, in its less rigorous, popular forms, religion is about as intellectually challenging as the average self-help book. (Like personal development literature, mass market books about spirituality and religion celebrate emotionalism and denigrate reason. They elevate the "truths" of myths and parables over empiricism.) In its more authoritarian forms, religions punishes questioning and rewards gullibility. Faith is not a function of stupidity, but a frequent cause of it.
Wendy Kaminer
"The Last Taboo" in
The New Republic (10/14/1996)

2085) The magical thinking encourage by any belief in the supernatural, combined with the vilification of rationality and skepticism, is more conducive to conspiracy theories than it is to productive political debate. Conspiratorial thinking abounds during this period of spiritual and religious revivalism.
Wendy Kaminer
"The Last Taboo" in
The New Republic (10/14/1996)

2086) Skepticism is essential to criminal justice: guilt is supposed to be proven, not assumed. Skepticism, even cynicism, should play an equally important role in political campaigns, particularly today, when it is in such disrepute. Politicians have learned to accuse anyone who question or opposes them of "cynicism," a popular term or opprobrium associated with spiritual stasis or soullessness. If "cynic" is a synonym for "critic", it's a label any thoughtful person might embrace, even at the risk of damnation. [...] Would a resurgence of skepticism and rationality make us smarter? Not exactly, but it would balance supernaturalism and the habit of belief with respect for empirical realities, which should influence the formulation of public policy more than faith. Rationalism would be an antidote to prejudice, which is, after all, a form of faith. [...] Faith denies facts, and that is not always a virtue.
Wendy Kaminer
"The Last Taboo" in
The New Republic (10/14/1996)

Positive Atheism
2087) [Scientists} are members of an extremely tribal culture.
Carl Djerassi
"Science-in-Fiction Is Not Science Fiction. Is It
lecture at Harvard Science Center (10/28/1996)

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 383 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/02/2008 06:02:00 PM | | | | GO: TOP OF HOME PAGE


(3089/898) The Collapse of Criminal Justice - 2

2071) If a defendant is guilty, he should be convicted. If he is not guilty, he should be acquitted. An erroneous acquittal should be a source of dismay, not indifference.
Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2072) [B]y law I had to tell the jury [in the Lisa Steinberg murder case] it could draw no adverse inferences from a defendant's failure to testify, even though adverse inferences were perfectly logical and warranted under the circumstances.

There's a collapse of common sense here. Imagine this happening to you. Your husband goes into a room with your daughter, and when he comes out, she's unconscious. You ask, "What happened in there?" If he refuses to answer, wouldn't you draw an inference that he was behaving abnormally and that perhaps he had something to do with your daughter's condition? Of course you would! And so might any jury, except that I had to instruct them otherwise.
Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2073) We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read.
Mark Twain (Samuel Clemens)
speech in London (7/4/1873)
Sketches, New and Old (1875) [QMT]/[TQ]
quoted by Harold J. Rothwax in
Guilty: The Collapse of Criminal Justice (1996)

2074) Although commentators often assured the public that the [O.J. Simpson criminal] trial was an aberration whose bizarreness, pettiness, length, and disorganization were not common to "normal" courtrooms, I saw it another way. As the weeks and months progressed, the Simpson trial became for me a sterling example of everything that is wrong with our criminal justice system rolled into one spectacular event. We can't let ourselves off the hook by saying it was unusual - for it is precisely the same formalism and complexity of our criminal law that plague all trials that allowed in this one the most egregious behavior.

[...] What have we learned from the O.J. Simpson trial about the pursuit of justice in our society?
  • That power and money have the effect of creating elaborate screens that hide the truth.

  • That jury selection is hostage to peremptory challenges that, with the help of scientific jury experts, can mold a jury in the hope that it will be swayed by emotion and innuendo, not fact.

  • That trial by media is a real specter in this age of unrestrained tabloid journalism.

  • The clever defense attorneys, coupled with passive judges, can fashion "evidence" out of innuendo.

  • That the only person who is protected from having to explain himself and his actions is the very person who is accused of the crime - and who may know the most about it.

  • That juries are fragile bodies, subject to emotion, suggestion, and speculation, and that often juries are comprised of citizens who lack the capacity to intelligently evaluate evidence.

  • That the American courtroom is dangerously out of control.
Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2075) If truth is the goal - and it is where discovery is concerned - there is no reason in law, morality, or common sense why a defendant's access to the People's case should not be conditioned on his willingness to give up any right to misuse that evidence. Therefore, from a public policy perspective, the argument against full reciprocal discovery is hard to understand. Surprise, from with the prosecution or the defense, supports the idea that justice is a game of chance and wit, not a search for the truth.

If we believe that truth is the goal, I suggest a very simple solution. It's so simple, so obvious, so full of common sense, it seems unthinkable that such a plan would ever be adopted in a system as cluttered as ours. But perhaps this idea will see the light of day in the future.

I called it the Sealed Envelope Proposal. The Sealed Envelope Proposal provides a method that would both preserve the defendant's right to discovery and at the same time prevent him from using discovery material to concoct a false story.

After a defendant is formally charged with a crime, if he wishes to obtain discovery of the People's case, he should be required to write down his version of what happened and place the account in a sealed envelope. The envelope would than be turned over to the judge. The contents of the envelope would not be seen by the prosecutor or anyone else unless the defendant took the stand and testified in his own defense. Only then could the envelope's contents be revealed to assure that the defendant's story is consistent with his trial testimony or, in the event it is not, it would be available to impeach him.

Since there is no constitutional right to discovery, that state is free to condition the terms under which discovery will be provided. Thus the Sealed Envelope Proposal.

We are not requiring or compelling the defendant to do anything. We are conditioning his access to the People's case on his assurance - in a sealed envelope - that he will not misuse the information for perjures purposes.

In my opinion, being asked to place his story in a sealed envelope does not violate a defendant's rights. It does not convict the innocent. It merely prevents the lie.
Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2076) There are no simple solutions to the disorder of our courts. But I believe that our courts would work better if we made the following ten basic changes:
  1. The vast and unknowable search-and-seizure laws, based loosely on the Fourth Amendment, must be simplified and clarified to prevent a guessing game on the street and in the courtroom. As long as the law remains unknowable, there is no justification for the mandatory exclusion rule.

  2. The Miranda ruling is an unnecessary overreaction to past abuses that videotapes and other technology can now preclude, and it should be abandoned.

  3. Speedy trial statutes, based on a precise formula of days and weeks, only protect those who are most interested in getting away with crimes and manipulating the system. Reasonableness, not a ticking clock, should determine speed.

  4. The right to an attorney should not be a factor in the investigative stage, but only in the pretrial and trial stages. Asking questions and receiving answers from suspects is a legitimate aspect of crime-solving.

  5. If it appears from the evidence that the defendant could reasonably be expected to explain or deny evidence presented against him, the jury should be instructed that they may consider his failure to do so as tending to indicate the truth of such evidence.

  6. If defendants seek pretrial discovery from the state, they should be asked to place a written version of their story in a sealed envelope before receiving that discovery to preclude manipulation and lying.

  7. Peremptory challenges should be limited to three or fewer to avoid stacked juries.

  8. Unanimous jury verdicts are less likely to speak the truth than majority verdicts, and should be replaced by ten-to-two or eleven-to-one verdicts in criminal trials.

  9. American judges should be allowed a more active role in the courtroom to assure that the process is swift, sure, and according to the laws of evidence.

  10. The fact that, in recent years, an ever-increasing number of major criminal cases have had decisions reversed on technical (and often irrational) grounds, unrelated to our core values, demands we reevaluate our fundamental philosophy and procedures.
Finally, we should return to the premise that the criminal justice system is engaged in a search for the truth. For without truth, what can be the point of lofty principles? Without truth, how can our society properly maintain the ideals, values, and principles upon which it was founded? If, as Disraeli said, justice is truth in action, it's time for us to act.
Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)
[Note: See #1667-1670 and #2059-2070 for additional quotes from Guilty: The Collapse of Criminal Justice]

[QMT] - The Quotable Mark Twain (1998), R. Kent Rasmussen, ed.
[TQ] -

Note: "3089/898" is the designation I've given to the project of posting all my collected quotes, excerpts and ideas (3089 of them) in the remaining days of the Bush administration (of which there were 898 left when I began).

As of today, there are 383 days remaining in the administration of the worst American President ever.

Ed Fitzgerald | 1/02/2008 12:45:00 PM | | | | GO: TOP OF HOME PAGE


Ed Fitzgerald

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Bullshit, trolling, unthinking knee-jerk dogmatism and the drivel of idiots will be ruthlessly deleted and the posters banned.

Entertaining, interesting, intelligent, informed and informative comments will always be welcome, even when I disagree with them.

I am the sole judge of which of these qualities pertains.

All e-mail received is subject to being published on unfutz without identifying names or addresses.

I correct typos and other simple errors of grammar, syntax, style and presentation in my posts after the fact without necessarily posting notification of the change.

Substantive textual changes, especially reversals or major corrections, will be noted in an "Update" or a footnote.

Also, illustrations may be added to entries after their initial publication.
the story so far
unfutz: toiling in almost complete obscurity for almost 1500 days
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the proud unfutz guarantee
If you read unfutz at least once a week, without fail, your teeth will be whiter and your love life more satisfying.

If you read it daily, I will come to your house, kiss you on the forehead, bathe your feet, and cook pancakes for you, with yummy syrup and everything.

(You might want to keep a watch on me, though, just to avoid the syrup ending up on your feet and the pancakes on your forehead.)

Finally, on a more mundane level, since I don't believe that anyone actually reads this stuff, I make this offer: I'll give five bucks to the first person who contacts me and asks for it -- and, believe me, right now five bucks might as well be five hundred, so this is no trivial offer.

original content
© 2003-2008
Ed Fitzgerald


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