Sheridan: Con-Law

OVER-SHARING

Sharing.

What a concept.

What a word.

I came across it in grade school.  Sharing is what you were told to do when two kids were fighting over the same crayon in kindergarten.  Take turns!  Share!  Okay, goddit.

Fast forward to second grade.  Teacher says everyone has to bring in a pair of scissors because tomorrow we're going to do cut-outs using construction paper.

"Mom, you got a pair of scissors I can bring to school tomorrow?  We're doing a project where you have to cut paper."

She finds the scissors.

In the morning, I remember to bring them to school.

Cut-out time arrives and I'm cutting out forms from paper.  I put them down and the kid seated next to me grabs them.  "Hey, give me those."

"I forgot mine."

The teacher sees.

"Share," she commands.

That's where I learned about sharing.

Sharing is where you remember and prepare and someone else doesn't but gets the benefit of your effort.

Sharing is bad, right?

My grand-daughter, barely 4 and in pre-school, is with me at the new Academy of Science in Golden Gate park.  Several kids are at an exhibit where you press a button and a projector overhead casts an image on the table.  The trick is to get to the button to press it and Liana has been blocked. 

She says to the bigger girl, who ignores her, "Can we share?" 

Meaning, "How 'bout you give up what you've got so I can play too?"

Sharing isn't working well, today.

On subsequent occasions I see Liana taking toys away from her little, and resented, sister, on the claim we suddenly need to share.

The theory, as best I can figure is, "What's mine is mine, what's yours is mine, too."

My Republican friends are likely to call sharing Communism.

My Democratic friends are likely to call sharing, "We're all living in the same boat, so let's tax what you have and spread the benefits to the have-nots."

Both ways are good and right. 

Both ways are evil.

The other day I came across a variant of the term, called "over-sharing."

Someone was complaining that another was providing way too much personal information on a chat site, for comfort.

Today, in an article concerning a breach of security at a White House function, a state dinner no less, for India, a dressed-up couple, uninvited, apparently crashed the party, making one wonder that if they can do this, what could terrorists do, I see "over-sharing" used for the second time. 

This is a new word for me, obviously.

“There’s a whole culture of over-sharing — everybody is broadcasting now and everyone is putting themselves out on the Internet and TV,” he said. “Some people just take it further than others.”  N.Y. Times.

Forgive me for oversharing.

Talking too much, I suppose.

Novelists and playwrights do this, don't they?

I guess if you do it artfully enough, you're okay.

Do it in a more pedestrian fashion and you're not.

Sharing..., oversharing..., undersharing..., like Uncle Scrooge...

There must be a happy medium.

Let me know when you find it.

We'll call you an Independent or a Moderate, I suppose.

CHINA QUIZ: NAME THE CONSTITUTIONAL VIOLATIONS

Article:China house church leaders sentenced:/n/a/2009/11/25/international/i225453S32.DTL

Article:China house church leaders sentenced:/n/a/2009/11/25/international/i225453S32.DTL

Constitutional rights are a lot easier to understand in the breach.

In this article, published in the San Francisco Chronicle (sfgate.com), try to pick out the constitutional violations had the government activity occurred here.

People are carted off to jail, given harsh prison terms, in last minute trials where no lawyers are allowed, for getting together in a home to pray, and the minister's wire is arrested for protesting to the government.

If you gave this as a fact situation and asked the students to describe the violations, they'd have a lot to write about.

Pres. Barack Obama made a state visit to Beijing last week where he met with our chief lender, Hu Jintao, premier of China. 

Not much you can say, I suppose, about human rights, to your banker. 

Bankers, as we've learned, do what they want with impunity, even when it means destroying the economy and advancing socialized banking, as in accepting taxpayer bailout of the financial industry after investing heavily in vaporware known as derivatives which they sell to each other, preferably offshore.

Query:  If a student or visitor to the United States from China refuses to return home and requests political asylum here on the ground that s/he's a Christian and will be persecuted for exercising his religion in unauthorized home meetings, do we grant the petition?

China house church leaders sentenced

By CHRISTOPHER BODEEN, Associated Press Writer

Thursday, November 26, 2009

(11-26) 00:53 PST BEIJING, China (AP) --

A court in northern China has sentenced five leaders of an unauthorized Protestant church to prison terms of up to seven years on charges including illegal assembly, rights groups reported Thursday.

The sentences are among the harshest in recent years for members of so-called "house churches" — congregations that refuse to register and accept the authority of the government's Religious Affairs Bureau.

Arrests stemmed from a Sept. 13 raid by police and hired security guards on sunrise services held in a dormitory building by the 50,000-member Linfen Fushan Church in Linfen, northern Shanxi province, rights groups and the advocacy Web site Boxun.com reported.

Those sentenced late Wednesday by the Linfen Intermediate Court included the church's pastor Wang Xiaoguang and his wife Yang Rongli, who both received the maximum sentence. Yang was apparently targeted for her efforts to petition local authorities on Wang's behalf, Boxun said. Others were given sentences of between three and four-and-a-half-years, it said.

The trial was called at the last minute and the court permitted only one family member of each defendant to attend, the reports said. Local authorities had previously refused to allow lawyers to meet with the accused.

The reports said the five were convicted on two charges: "illegal land occupation" and "assembling a crowd to disrupt public order." No other details were given. Monitoring groups frequently cite such charges as evidence of government harassment of nonofficial churches.

Yang had been detained the day after the raid while carrying a protest to the Shanxi provincial government offices in the capital of Taiyuan, reports said. Another 10 people were detained over the following days, although it was not immediately clear whether they had been released or would also face trial.

Calls to several departments of the Linfen Intermediate Court rang unanswered on Thursday. A man who answered at Fushan police headquarters hung up after a reporter identified himself and calls to other local government departments went unanswered.

According to the U.S.-based China Aid Association, local authorities had earlier chosen not to prosecute church leaders under harsh anti-cult legislation that could have brought more severe sentences. That seemed to indicate they would continue to allow the church to exist, although reports said police continued to be posted outside church offices.

The association said the sentences were the toughest against unofficial church leaders since Zhang Rongliang received 7.5 years in 2006. It said lawyers for the five had been shown only a fraction of the documents submitted in the case and claimed the verdicts had been predetermined — a common accusation in politically sensitive cases.

"We strongly condemn this unjust sentence based on trumped-up charges. This case clearly shows the seriously deteriorating situation of religious persecution in China," association President Bob Fu said in a statement.

Officially, China's communist government requires all Protestants to worship in the non-denominational Three-Self Patriotic Movement, while Catholics must meet in the Patriotic Association. Both are beholden to the Religious Affairs bureau, while the degree of tolerance for unregistered churches varies from location to location.

The number of Christians in China is estimated to be about 50 million to 130 million.

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/11/25/international/i225453S32.DTL

CLAUDE LEVI-STRAUSS

Whew!

I knew it!

Understanding life is really a lot simpler than it seems.

The trick is to make up a story that explains everything.

This past week we suffered an extreme tragedy.  Fort Hood, Texas, is our largest military base.  From here the First Cavalry, the "A" Team, the troops we send in first after the Marines and the Navy and Air Force take their shots, the Boots on the Ground, the "Go team," is headquartered here.  

These are the troops, the men and women, of all races, creeds and colors who protect you and me.

We'll do anything to protect them.

Well, the Army did do everything it could.  It took an enlistee out of high school, sent him to college, taught him to be a doctor and then a psychiatrist.  His job was to look after troops experiencing extreme psychological malaise after returning from war.

Unfortunately, he became confused, crazed in fact, and went berserk, killing thirteen on the base and shooting many more, forty-one, all told, before being himself shot down by a civilian (female) police officer responding to the shooting.

Bizarre?  Of course.

Mind boggling?  Even moreso.

Here's the Army doing all it seemingly could to protect the troops and the watchdog goes berserk.

If I were the Army, I'd be tearing my hear and gnashing my teeth in frustration.

"But we did everything..." I can hear it saying.

"We'll have to learn the lesson and do more, for that's the Army way," I hear that too.

The Army is one of the few American institutions that actually pays attention to what it did today, and yesterday, to learn what it can for tomorrow.  This is not a bloodless process, intramurally.

See the new Neil Sheehan book about the Cold War, based on the life of Bernard Schriever, the man behind the ICBM in the nuclear arms race with the thankfully former Soviet Union, "A Fiery Peace in a Cold War"  (Random House, 2009).

It is difficult for us to stop fighting the last war and to imagine the next.  That's what Schriever, who did fight the last war, did.  Lot's of bureaucratic infighting, with Congressional approval.  Ultimately a decision has to be made.  This decision is a matter of life or death.

How do we make these decisions?

We tell stories.  We tell THE story, the one that seems most true as compared with the others.  We look forward, not back, we hope.

***

These stories we tell about ourselves, to explain ourselves to ourselves.  What kind of stories are they?

Some call them myths.  Others call it our 'cosmology,' our story of ourself.

Is there only one story?

No, there are many, one for each of our human cultures, from Paris to New Guinea.

Here's what Levi-Strauss had to say about that:

In any society, he maintained, “the purpose of a myth is to provide a logical model capable of overcoming a contradiction.” As he saw it, the human mind tends to organize thought and culture around binary opposites, and to try to resolve the resulting tension through the creative act of mythmaking.

I like that.

Who are our creative mythmakers?

The Supreme Court?

Our poets?

Playwrights?

Authors?

Cartoonists?

Law professors? (Doubtful)

Seers?  Witch-doctors?

When we speak of climbing to the next higher level of generality, aren't we talking in some sense of reaching for a new myth?  I'm not so sure, but I'm not ready to rule it out.

The massacre at Ft. Hood brought the story of Oedipus Rex to mind.  The tale, by Sophocles, is based on the myth that the king and queen of Thebes had been foretold that their son would grow up to kill his father and marry his mother.  Whoa!  Where did Sophocles come up with a tale like that?  Where does his mind dwell?

So the king and queen, to avoid this fate, hand the baby off to a courtier to expose and die on a mountain top.  The courtier, taking pity on the baby, hands him to a shepherd who raise him.  On the road to Thebes, twenty years later, there's an armed encounter following a quarrel in which the young man, Oedipus, kills the old man, who, it turns out, was the king, unbeknownst to the younger man, his son, who proceeds to the city, enters the palace, and eventually marries the widowed queen, his mother.

Fate was not fooled for one instant.  Every move played into the hands of Fate.  The more the parents tried to avoid their alleged fate, the more they ensured its enactment into reality.  Really.  This is too much.

Yet, with the Army, it seems to have happened.

Back to square one.

Below is an article on Levi-Strauss, the analyzer of myth, who passed away last week.

 

---

November 8, 2009

Claude Lévi-Strauss’s Two-Part Harmonies

By LARRY ROHTER

Millions of words have been written trying to explain or apply the theories of the French anthropologist Claude Lévi-Strauss since the publication of his work “Structural Anthropology” in 1958. More than a few of the resulting texts in disciplines as varied as sociology and philosophy are dense, turgid and jargon ridden, or so the complaint goes. But Mr. Lévi-Strauss himself could be simple, direct and elegant when he wanted to be. Structuralism, he once said, is simply “the search for unsuspected harmonies” across cultures.

In fact, his life’s work was dedicated to detecting and codifying what he believed to be the underlying structures common to all societies. Working among Amerindian tribes in the Amazon and elsewhere from the 1930s onward, he found those harmonies to be especially manifest in mythology. In any society, he maintained, “the purpose of a myth is to provide a logical model capable of overcoming a contradiction.”

As he saw it, the human mind tends to organize thought and culture around binary opposites, and to try to resolve the resulting tension through the creative act of mythmaking. Here are four pairs that, explicitly or implicitly, are important in the work of Claude Lévi-Strauss, who died a little over a week ago just shy of 101.

THE RAW AND THE COOKED “Raw” and “cooked” are shorthand terms meant to differentiate what is found in nature from what is a product of human culture. That dichotomy, Mr. Lévi-Strauss believed, exists in all human societies. Part of what makes us human, however, is our need to reconcile those opposites, to find a balance between raw and cooked. But where is the dividing line between nature, which is emotional and instinctive, and culture, which is based on rules and conventions? In a metaphoric sense, a cook is a kind of mediator between those realms, transforming an object originally from the natural world into an item fit for human consumption. So by “cooked,” Mr. Lévi-Strauss means anything that is socialized from its natural state. Yes, the definition of what is considered edible varies from one society or religious group to another. But all have binary structures that separate the raw and the cooked, the fresh and the rotten, the moist and the dry or burned.

THE TINKERER AND THE ENGINEER In “The Savage Mind” (1962), Mr. Lévi-Strauss proposes a distinction between modes of conception, design and manufacture. The “tinkerer” or “artisan,” two possible renderings of the somewhat ambiguous French word that he used, “bricoleur,” works mainly with his hands, using materials that already exist, which he tries to put together in different ways. The “engineer,” in contrast, is a proto-scientist. He has a more abstract mental universe, which allows him to invent tools, devices or materials and transcend the boundaries that society imposes. Though both the tinkerer and the engineer face comparable obstacles, they navigate them in dissimilar fashion, with the tinkerer being more typical of the approach of “the savage mind.” One way is spontaneous, the other methodical. “A truly scientific analysis must be real, simplifying and explanatory,” Mr. Lévi-Strauss wrote, while the tinkerer is confined to a more narrow and immediate focus.

THE I AND THE WE Mr. Lévi-Strauss was loath to accept the notion of “us versus them,” because it didn’t conform to his belief in societies’ shared structures. Instead, he often focused on the distinction between “I” and “we.” In looking at kinship patterns, for example, especially among the Amerindian peoples who provided much of his research material, he was more attentive to the rules governing relationships between different family groups than the roles of the individuals making up those families. Examining both Oedipus and Amerindian myths, Mr. Lévi-Strauss suggests that the universal incest taboo is the way human societies resolve the opposing dangers of excessive love and hatred for close blood relations. He also rejected one of the fundamental features of Western thought: seeing individual self-expression as the height of creativity. Because he was so interested in mythmaking, a collective process that occurs incrementally over time, he favored the notion of a communal approach to making culture, writing in “Tristes Tropiques,” “The I is hateful.”

THE LANGUAGE AND THE WORD From the Swiss linguist Ferdinand de Saussure, Mr. Lévi-Strauss borrowed the distinction between “langue” (tongue, or language) and “parole” (word), and then gave it a twist. The tongue, the underlying system of language, is something “belonging to a reversible time,” Mr. Lévi-Strauss wrote, outside a particular moment. A word, in contrast, is a specific utterance that, once expressed, cannot be reversed. Think of a piece of sheet music: it can be read or played from left to right, from one page to another, in a horizontal, linear fashion leading to a coda, a definite conclusion. That is “parole.” Or it can be studied vertically, in hopes of discerning harmony and other structural relationships between the notes in the treble and bass clefs. That is what Mr. Lévi-Strauss considered “langue.”

Illustrations by Leif Parsons.

STATUS EXCHANGE, FALSE ACCUSATION

Know what to look for.

Debunking false accusations requires some insight into why some of us falsely accuse others of committing terrible crimes.

In several cases I'm familiar with a woman has come up with a story, which if proved, would make her a victim and her former boyfriend or husband a villain.  In the morality play called life, it is not good to be cast as the villain, especially if you didn't commit the requisite offense. How much better it is to be cast as the victim. You avoid blame, obtain state victim compensation money, keep your subsidized housing if that is what you lived in, and win the child in the custody battle.  These are powerful incentives to cast the blame the other way.

But there's more to it than that.

Say you're a guy and you ask your wife to P-L-E-A-S-E close the door after she comes in, or turn out the light, or not squeeze the toothpaste tube in the middle.  I had a college professor who mentioned more than once that this latter was the chief cause of divorce in the U.S.  I'd thought it was marriage, but he's probably more correct. The wife is tired of you complaining about her alleged deficiencies, moral deficiencies, as she reads it.  What does she do?  She hurls back at you a list of grievances, your own misdemeanors, that she's been chewing over for the past year.  That's old news, you argue, we got past that ages ago, you protest.  I've got news.  This is not old business.  It's new.

By your complaining today of her little faults, you are claiming the moral high ground in the tug-of-war which is marriage as often practiced. Can she let you get away with this?  Do you think you have succeeded when you put the moral burden of guilt on her?  Don't be silly.  All you've done is to invite a cross-complaint, a counter-suit, for your own wrongdoing.  Better not to have complained at all, for when you do, be prepared for the onslaught.

This, I think, may account for a number of accusations which turn out to be overblown, if not entirely false.

What brings this to mind is a news article in this morning's SF Chronicle about a woman who accuses her former boyfriend of four years, they were about to be married, of stalking and threatening her.  He's a well-known former professional football player who now coaches at the high school level.  He'd been involved in the steroid scandal and been sentenced by a federal judge.  The ex says he's had trouble dealing with it and her, seeming to regard her has belonging to him and not letting her run off without a struggle.

She made a reasonably persuasive argument, it seemed, so I looked at the comments below the online article.  I was surprised to see several comments from skeptics who regarded her account as false in that she claimed she'd ridden her bicycle at 11:00 p.m. from a fitness class she taught and he'd bumped it from behind with her car, causing her to fall and suffer bruises.

I began to think more fully on the proposition that all might not be as it first appears.

The problem with trying to decide cases based on news stories is that you don't get to see what's behind the allegations.  You find yourself in the position of someone being fed selected facts to support a position.

The position may be right or wrong but you won't know unless and until you read follow-up articles, perhaps even containing what the other side has to say.

What kind of woman is this?  The article just says she's the former fiance of the noted former football pro.

So, without more, she's a paragon of virtue, because no description of her appears in the article, only the muddying up of him.

My experience with humans suggests that when two people get together, rarely is one a paragon of virtue and the other a devil, at least not at first.  Not only that, but the one who lambastes the other first may simply be projecting her own worst fears onto the putative devil.  She may be the one who is the devil.  We don't get that from the article about the football player.

In several cases where the woman has accused the husband or father of having molested the child sexually, despite no evidence beyond the mother's suggestive question of the child, the father has struck me as being unusually nurturing.  Why are the good guys being accused, I wondered.

That's when I lit on the idea that the making of the accusation serves as a vehicle to exchange status:  she rises up in the eyes of herself and her world while he tumbles down.  Her allies rally to her, his to him.

What, I wonder, goes on in the mind of the false accuser?

Perhaps it goes like this:  I'll teach you, you SOB, to ruin me, and I'll use every weapon at my disposal, from getting the child to side with me, to taking out a restraining order, to filing a police report and having you arrested, even if it means scratching my face or bruising my arm.  Police policy in California is to make an arrest of the other party if the one who complains can show red marks or injury.

The legal play, from the attorney's standpoint, begins there.  In actuality it began a long time before that.

May the best story-teller win, for that's what it will come down to in the end, if you even get to tell your story.  Trials are costly propositions and not always available.

Stories of monstrous men abound in literature.  The Minotaur, half man, half-bull, is from ancient Greeks. He lived in the center of the Labyrinth, from which no one who entered could find his way out. He devoured so many youths and maidens each year.  Theseus of Athens resolved to end the slaughter of his countrymen.  Enlisting the aid of Ariadne, the daughter of the Minotaur, she supplied him with a thread to unwind as he entered to confront the Minotaur, so he could follow the path back.

There are female monsters, as well, starting with Medusa in the Greek tradition.  The Old Testament has Jezebel a Palestinian married to a Hebrew king, so we don't expect her to fare well in the press releases, do we. She becomes distorted into a scheming, deceitful, vindictive woman in the resulting account.

The point is that the ancients were well aware how distorted we become when we become fixated on establishing our position to the detriment of others.  Distortion morally becomes distortion physically, the result becoming a graphic image of a semi-human monster.

The interesting think about the ancient Greek way of looking at the world is that they personified everything, meaning that if it was raining, the rain god was responsible.  Who took care of the crops?  Ceres, hence cereal.  The sea-god?  Poseidon.

Every natural thing fell under the dominion of one of the gods.  Since we know that the wind can roil the waves, it appears that the two gods are fighting.  A wonderful Greek way of showing that abstract ideas can conflict is to portray each as a human-like figure and set them to fighting.  Perhaps one is angry or jealous over the other.

How does this relate to Conlaw?

The same way everything relates to Conlaw.  If it's human, it relates to Conlaw, as Conlaw is the operating system that regulates the applications programs such as the criminal law, torts, contracts, etc.

Before we even had Conlaw (only 225 years or so ago in this country, the first to have a written constitution, it is said) we had constitutional law, meaning the understanding of how your country was set up, say as a monarchy or a tribal village. 

Before we had psychologists we had doctors treating mental patients.  Freud tried to describe what was working below the surface.  Shakespeare was the master psychologist he was unable to overcome.  The god of psychology is not Sigmund Freud but Shakespeare.  And where did Shakespeare get his ideas and insights from, apart from those around him?  He relied in considerable part on Virgil (the Aeneid) and Ovid (Metamorphoses).  See Herbert Bloom's The Western Canon and Anthony O'Hear's "Great Books," "The Tempest."

In law we study subjects in segmented compartments, such as the above-mentioned criminal law, torts, contracts, etc.

This is an artificial construct for teaching (and learning) convenience.  The compartments have limited relevance to real life where any case may fall into multiple categories and usually does.

Today's news also has it that the White House, key senators and media representatives have agreed to a way through the morass of questions concerning whether news reporters must disclose the names of confidential sources, such as in case of leaks by government officials, as in the Valerie Plame affair. 

There VP Cheney's aide, Scooter Libby, was convicted of leaking to the press the identity of a CIA officer in retaliation for the public debunking her husband gave to Pres. G.W. Bush's reason for invading Iraq, the notion that Saddam had been stockpiling yellowcake, a precursor ingredient used to make the uranium needed to manufacture nuclear bombs. 

We were being ginned up for war but Plame's husband, former ambassador Joseph Wilson, blew the whistle for which he had to pay the price from the powers that be.  So his wife was burned in public. The result was a scandal that blew back on the administration.  Our own Dreyfus-like affair.

The deal is said to give the government authority to override the shield for reporters against disclosure in certain national security cases but not necessarily in ordinary criminal or civil cases.

Sen. Charles "Chuck" Schumer (D. NY) said the agreement (per the AP report) "strikes the right balance between national security concerns and the public's right to know."

The ancient Greeks might have said that the war between Mars or Apollo, representing government, and Dionysius (?) or Athena, representing the people, had been successfully concluded with a treaty among the ruling gods.

Schumer said the agreement would preserve a strong defense for reporters trying to protect sources while making sure the government can do its job of protecting citizens.  The Senate Judiciary Committee will review the new legislation, perhaps next week.

An earlier bill had provided for a balancing test in which a federal judge would decide between government and the reporter.  Balancing tests have been severely criticized as a way of balancing away your rights.  Government nearly always wins because government can always maintain that it is seeking to protect the greater number than just you alone.  Individual rights, to withstand the balancing-away of federal judges, must be cast in terms of prohibitions that federal judges cannot ignore.

Under the new bill, the balancing test would be eliminated in classified leak cases.  Instead, the government would have the burden of showing that disclosure of the source is necessary to prevent or mitigate an act of terror or substantial harm to national security.  Balancing is thus replaced with burden of coming forth with evidence that proves the government's case.  This should end the government practice of hollering "national security," the former magic words that ended all inquiry and served to conceal official wrongdoing, incompetence and political embarrassment, with the duty to come forward with proof that the troopship on the tide will be sunk if the information is not protected from disclosure.

In Floyd Abrams' book Speaking Freely, he writes of his experience defending the New York Times in an action for injunction against publishing the leaked Pentagon Papers, filched by Daniel Elsberg from the Pentagon, which showed the government to have lied to us about the need to invade Vietnam and wage war there for so long at the cost of so many lives, 58,000 of ours, 3 million of theirs.

Abrams recounts that one of the first problems encountered by the court and counsel for both sides was what "national security" meant, meaning legitimate reasons, not make-believe.  Was a history of prior dealings a matter of national security?  Or did national security mean what could happen tomorrow if certain information leaked.  The discussion quickly devolved to the point where it could fairly be said that history was not ever likely to be a matter of national security, as yesterday's news wasn't apt to start tomorrow's attack, but that news of a troopship loaded and planning to sail tomorrow could result in the loss of an army, so that was legitimate information to prevent disclosing.

The test of national security in the Pentagon Papers case was whether any of the information in the thirteen volumes amounted to troopship-on-the-tide information.  The Supreme Court quashed the injunction.

Under the compromise bill, the balancing-away test would exist for cases not involving classified leaks, but in criminal cases the burden would be on the journalist to show clear and convincing evidence that guarding the anonymity of sources is in the public interest.

In non-criminal cases, the government would bear the burden to prove that the disclosure of a confidential source outweighs the public interest in gathering the news.

The legislation, when passed by Congress and signed by the president, would apply to the federal courts.  State protection for journalists would be left intact.

One of the difficulties for law students (and lawyers and judges) is in recognizing and dealing with conflicts between subject areas of law.  It is straightforward enough to study contract law or torts, but couple those with due process and equal protection and you're in for a ride.

One way, I suppose, to clarify, would be to establish a god of equal protection and show him fighting with the god of due process, contracts, or torts.

Prof. Francis Putnam of NYULS when I was a pup, used the image of a sword and a shield in making the point that a doctrine of law doesn't work only in one direction.  Sometimes it can be used as a sword in asserting a claim and at other times as a shield, to block a claim.

The absent god (or goddess) in in his metaphor must've been the attorney wielding the implements of war.

Funny thing about the Greek gods is that when the Christians came along and overthrew them, the pagan gods were then viewed as fictional characters created by imaginative poets and playwrights.

This doesn't say much for the gods of the old and new testaments, does it?

I mean, if the Greeks worshipped literary characters of their own creation, what is it that we worship?

Fundamentalist will tell you that God got there first, and that He created the poets and playwrights.  But as Xenophanes wrote, if cows could write and draw, their gods would look like cows.

It appears, unless I'm horribly wrong, that we worship literary characters.  I thank Prof. Herbert Bloom of Yale for the insight.

Well, if children can fall in love with Disney characters such as Mickey Mouse and Cinderella, why can't they fall in love with others?  I wonder how Disney missed Santa Clause and the Easter Bunny.

Charlton Heston was Moses and so-and-so was God.  He must've gotten ribbed at the Friar's Club.

So what is the answer?  To questions of God, and life?

My readings suggest that there is no answer.  The best answer is another question.

Uncertainty, equivocation and ambiguity are the stuff of life.  We're not really sure where reality ends and illusion begins.  All the world's a stage because the universe is a theater of the strange and seemingly impossible.

Shakespeare and Cervantes had great fun with the interplay between reality, or the appearance of reality, and illusion, the belief that what is not real is real, and vice versa.

Which brings us back to the accusation of the woman against her ex, the pro-football player.  Is she reporting accurately?  Or is she distilling years of grievance into a legal action for protection against the alleged monster she chose to live with for almost four years and to come within a week of marrying.

Are you a believer or a skeptic?

The first principle, a wise man said, is not to fool yourself, but remember, you are the easiest person to fool.

ON NOT INVESTIGATING COMPETENTLY

As a student of the subject of investigation, a bit of a connoisseur, I hope to think, I pay attention when one is done right and solves a mystery.  I should start posting the good ones here.

A recent one that I didn't post, but may, has to do with the two airline pilots who overshot the airport in Minneapolis by a hundred-fifty miles and ninety minutes.  Fighter jets scrambled when the pilot and co-pilot failed to respond to radio contacts from air controllers on the ground wondering what was up.

Eventually they landed safely, but the reason for the screwup, for it had to be that, remained the subject of great speculation for days.

Sound asleep in the cockpit?

They denied sleeping.

What could it be?

I had no idea.

After a few days of head-scratching, and interviewing by the FAA, this story came out:

The two had been engrossed in their laptop computers, going over the new work rules and schedules following the merger of their former airline with the new, larger one, a change which involved complex rule changes.

Plausible?

100%, it seemed to me.

Investigation had solved the mystery; the unknown was now known; satisfaction set in.  It all made sense.  They pilots hadn't passed out, or become ill, or done some unimaginable thing except for one:  they'd been doing the flying equivalent of what I see automobile drivers doing daily on the freeway, texting while driving (one almost rammed me the other day and when he pulled alongside to stop for the light, I could see the cellphone in hand and the driver looking at the screen).\

So that seems like a good investigation; I presume the explanation is correct.  Flying while distracted is about to become some sort of an offense, as it should be while driving anything more dangerous than a bumper car at a carnival, I should think.

Then along came this article about the world's largest Ponzi scheme, the Madoff scheme, in which he stole billions and is now in durance vile for the rest of his day, one believes.

Madoff himself says he can't believe he didn't get caught.  SEC "investigators" visited him six times over the years on various complaints.  It would've been a simple thing to take a few investigative peeks at his company's trading accounts to see that they weren't anything near what he was reporting.  The game would have been up.

But the investigators turned a blind eye.  It was as though they didn't want to know.  Apparently they'd been so taken in by the window-dressing, the trappings of success, that, like Mr. Lonergan in "The Sting," he placed his bet, fully taken in by the stage-managed betting set, the one that came down that night to ensure a safe getaway. But Madoff stuck around and eventually there was nowhere to run as his house of cards came crashing down.

Here's the latest, a news article on the newly issued report by the Inspector General in charge of finding out how Madoff beat the SEC for so long:

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October 31, 2009

Lapses Kept Scheme Alive, Madoff Told Investigators

By DIANA B. HENRIQUES

Nobody was more surprised that the Securities and Exchange Commission did not discover Bernard L. Madoff’s enormous Ponzi scheme years ago than Mr. Madoff himself.

After all, it would have been pretty simple, he said in a transcript of a jailhouse interview that is part of a trove of official exhibits released on Friday by the S.E.C.’s inspector general, H. David Kotz.

In the interview, Mr. Madoff said that the young investigators who pestered him over incidentals like e-mail messages should have just checked basics like his account with Wall Street’s central clearinghouse and his dealings with the firms that were supposedly handling his trades.

“If you’re looking at a Ponzi scheme, it’s the first thing you do,” he said.

Those simple steps, he added, could have revealed years earlier that he was running the largest Ponzi scheme ever, a crime that has now dragged the S.E.C. into the worst scandal in its 75-year history. “It would have been easy for them to see,” he added.

The new exhibits consist of 6,157 pages of interviews, letters, e-mail messages, telephone records and other background material gathered during Mr. Kotz’s 10-month investigation of how the commission handled, and mishandled, numerous tips and warnings it received about Mr. Madoff over the years. His full report,released last month, found the agency had received six substantive complaints since 1992 — and botched the investigation of every one of them. He found no evidence of any bribery, collusion or deliberate sabotage of those investigations.

In fact, Mr. Madoff said in the jailhouse interview that, on two occasions, he was certain it was only a matter of days or even hours before he would be caught. The first time, in 2004, he assumed the investigators would check his clearinghouse account. He said he was “astonished” that they did not, and theorized that they might have decided against doing so because of his stature in the industry.

“I’m very proud of the role I played in the industry,” he said. “Of course I destroyed that now.”

In Mr. Madoff’s second close call in 2006, investigators actually asked for his clearinghouse account number on a Friday afternoon, but then never followed up. He said he firmly expected the following Monday would bring the curtain down on his crime. Again, nothing happened. He recalled thinking at the time: “After all this, I got away lucky.”

His investors did not. According to estimates by a court-appointed trustee who is liquidating his estate, Mr. Madoff’s crime cost thousands of victims at least $21 billion in cash losses, part of the $64.8 billion in paper wealth that vanished when his scheme collapsed.

Despite what Mr. Madoff described as the chronic ineptitude of the S.E.C., he said in the interview that he was “worried every time” examiners showed up.

“That was the nightmare I lived with,” he said, and he told Mr. Kotz he had wanted it to end. “I wish they caught me six years ago, eight years ago.”

Mr. Madoff was arrested in December and pleaded guilty to fraud in March. He is now serving a 150-year prison term in North Carolina.

But the criminal investigation of the scheme is continuing. In a letter to a federal judge, federal prosecutors said that Mr. Madoff’s longtime accountant, David G. Friehling, was expected to plead guilty Tuesday and had agreed to cooperate with investigators.

Mr. Friehling was Mr. Madoff’s auditor from 1991 to 2008. Mr. Madoff told clients that Mr. Friehling audited his investment advisory business from a small office with a bare-bones staff in suburban New City, N.Y., an arrangement that made several investors suspicious for years.

The newly public documents do not add fresh charges to the official findings, but they do provide a vivid sense of the tensions, confusion and petty squabbles that derailed a half-dozen failed inquiries. .

Some interviews describe a culture where understaffed investigations languished for months before sputtering out, unresolved. Others evoke an environment that became openly dismissive of anonymous tips, like some of the early Madoff warnings.

In one e-mail message, a senior lawyer in the agency’s New York office said he thought “we should get out of the business of burning resources to chase Ponzi schemes.”

He later explained in an interview that he thought investigations of Ponzi schemes should be left to other agencies with criminal jurisdiction. Several young staff members said those views had shaped their own misguided decisions in the Madoff inquiries.

Agency staff members repeatedly relied only on Mr. Madoff’s own testimony and records — which were lies and fabrications, as it turned out. An examination of customer records after Mr. Madoff’s arrest in December showed he made no trades for his customers for decades.

Mr. Madoff said in his interview in June that he thought, after all the examinations and investigations over the years, that “it never entered the S.E.C.’s mind that it was a Ponzi scheme.”

The S.E.C. declined to comment on the exhibits.

The paperwork gathered from the agency’s files also tell a tale of unseasoned, poorly managed people who were uncertain about what to do and unwilling to ask for help. In numerous instances, employees would share their doubts about Mr. Madoff in notes or e-mail messages, but then never take steps to press for more information.

In a memo from March 2004, several senior S.E.C. staff members reported that “it seems clear” that Mr. Madoff had “absolute discretion” over the accounts of his clients. Nevertheless, they said, “Bernard Madoff himself has categorically denied being an investment adviser.”

The investigators later forced Mr. Madoff to register as an investment adviser, but never pursued the fact that they had caught him in a blatant lie. Mr. Madoff’s claims of close relationships with regulators was mentioned in several of the interviews with S.E.C. staff and internal agency e-mail messages released by Mr. Kotz.

Mr. Kotz interviewed four former chairmen of the commission: Arthur Levitt, Harvey Pitt, William Donaldson and Christopher Cox. Mr. Madoff’s descriptions in his interview of ties to former officials did not always check out, Mr. Kotz reported.

For example, Mr. Madoff claimed he knew Mr. Levitt “very well’ and had lunched with him on one occasion. But according to a memo, Mr. Levitt testified that he “did not believe he ever met with Mr. Madoff alone” and that he “did not have a personal friendship with Mr. Madoff,” and “had never socialized with him.”

Mr. Madoff also stated that the current chairwoman, Mary L. Schapiro, was a “dear friend” of his, and that she “probably thinks ‘I wish I never knew this guy.’ “ But Mr. Kotz released a statement on Friday saying that there was no evidence that Mr. Madoff had a close friendship with Ms. Schapiro.

The exhibits are certain to be carefully scrutinized by lawyers for several Madoff victims who are suing the commission for negligence. Those lawsuits argue that their losses could have been reduced or prevented if the commission had competently investigated the Madoff firm and pursued warnings about his mysteriously consistent profits.

THE GREATER THE INJUSTICE, THE HARDER TO UNDO

A call this morning from someone who has referred clients before. 

Someone is in trouble; the matter is urgent.  He was arrested and has a matter pending.  Is on parole.

Have him call.

He calls.

I offer him an appointment for today, which is fine except that he wants to tell me over a poor cellphone connection in which one word in four is dropped how something (the word was dropped) happened and then something else and he's really a victim. 

It involves someone else's credit card, the guy who (we clarify) hit him and ran and he chased and the police are trying to put 30 felony credit card fraud charges on him.

Got the picture? 

Neither do I.

All I need to do is get the guy in so I can hear the who-done-what-to-who(m)" stats correctly instead of over this bad connection where the field is muddy.

But he needs me to understand that he's the victim in the morality play he wishes to tell.

No one ever wants to be the perpetrator, only the victim.

The jails are full of victims.

The witness called by the DA first is always the victim, real or imagined, but assigned that role.

The police incident report always leads off with the name of the person assigned the position of privilege in police dramas, the victim.  The person who done in the victim is the suspect.  You don't want to be a suspect.

Then there are the Ws, the wits, the witnesses.

A guy in custody had a friend call to see whether I'd represent in his multiple murder, special circumstances, good candidate for death-penalty case.  The caller advised that his friend, the suspect-in-custody, wanted to assure me that he was innocent, although he was unable to pay any money for this representation, although there would be some available if he were found innocent.  A contingency-fee death penalty case that will only take about twenty years to resolve at the end of a long career in which the promise of another twenty years might seem attractive, provided the clients continue coming and are able to help keep the train running by paying the fare.

Thank you, but I've done my good deeds in the past.

Taking on innocent clients charged with multiple murder and looking at the death penalty is a merit badge already on my sash; no need for a duplicate, thank you.

The Public Defender wails away and I see an occasional news report that cites some unfortunate evidence making it unlikely indeed my erstwhile client is the victim of yet another mistake by the gendarmes, of which I've seen a few.

Hence today's adage, brought on also with reference to an earlier post on the Dreyfus affair:

The greater the injustice, the greater the effort required to undo.

Read, more energy, trouble, time and expense.

Cases of innocence are the skyscrapers of our profession.

Any contractor can pour you a new sidewalk, but few can build skyscrapers.

Skyscraper, anyone?