Sheridan: Con-Law

DSM I - 5: POLITICS OR SCIENCE?

Psychiatry has a problem:  defining whose nuts and what kind.

They keep changing the rules of diagnosis.

They keep meeting and taking votes on what should be included and what shouldn't.

Is it sick to be gay, or normal?  For years it was the former and later, when this became politically suspect, the latter.

Previously, episodes of deep depression followed by uncontrollable mania was called manic-depression. For the past thirty years this has been renamed as bipolar disorder.

Can't stop washing your hands?  Always going back to see whether you left the stove on?  Obsessive compulsive disorder, this could now be called if disabling enough, or OCD.

The psychologists and psychiatrists who define such things compile their recommendations into a volume called the Diagnostic and Statistical Manual followed by a number in the title, which tells you something, namely that the definitions keep changing:  some maladies are included and some kept out.  Let's take a vot on what's in, what's out.  This is politics, not science.  We don't take votes on whether Pluto or Uranus are planets or rocks circling the sun.  Or do we?

The Wall Street Journal has this article on the problem with psychiatry today.

SLOW OR STOP

Warning:  Lawyer joke from an alleged friend who carefully makes our hero a California attorney, out of several alternative choices:

***

Lawyer runs a stop sign and gets pulled over by a sheriff's deputy. Assuming that he is smarter than the deputy because he is a lawyer from California and is certain that he has a better education then any cop from Butte, Montana, he decides to demonstrate this and have some fun at the Montana deputy's expense.

Deputy says, "License and registration, please."

"What for?" asks the lawyer.

Deputy says, "You didn't come to a complete stop at the stop sign."

Lawyer says, "I slowed down, and no one was coming."

"You still didn't come to a complete stop," says the deputy. "License and registration, please."

Lawyer asks, "What's the difference?"

"The difference is that the law requires that you must come to complete stop.  License and registration, please!", the deputy says.

Lawyer says, "If you can show me the legal difference between slow down and stop, I'll give you my license and registration, and accept the ticket.  Otherwise, you let me go and don't give me the ticket, okay?"

"That sounds fair. Please exit your vehicle, sir," the deputy says.

At this point, the deputy takes out his nightstick and starts beating the the daylights out of the lawyer and asks,

"Do you want me to stop, or just slow down?"

***

Rule No. 1:  Never mess with an armed guy on his turf...

SANCROSANCT IDEAS AIN'T

A Conlawprofs contribution that attracted zero responses:

The character and idea of God as a jealous, wrathful, vengeful, Old Man, who was given to ordering the sacrifice of children, whole cities, indeed the whole world, i.e. who was evil personified, to which Abraham objected vocally,  was not protected by copyright.  Thus the idea, perhaps even the character, has changed over time and generations.

The followers of Jesus had no compunction against introducing a more merciful, just, and loving idea of the godhead, even if they took to multiplying entities to do so.
Fair-use, some might call it.

Harold Bloom, the estimable literary analyst, critic, and long-time Yale Humanities professor, suggested in "The Western Canon,"  (Harcourt Brace, 1994)  pp. 4-6,  that the author of the Old Testament books Genesis, Exodus and Numbers, was a Hittite woman who had first been the wife of a soldier named Uriah and later of a king named David (who had sent Uriah off to his virtually certain death in battle so he could marry his wife) who lived in the palace, or temple, of David and their son, later called King Solomon, the famous judge.

How else would the author, referred to by biblical scholars as the "J" (for use of the name Jwvh, or Ywvh) author, have known so much of Criminal and Family Law Procedure as to be able to suggest the separation of witnesses to detect inconsistencies, thus revealing collusion, and the truth, and the threat to cut the by now famous Baby in half, to inspire the real mother to self-sacrificingly reveal herself, and thus the truth?

Her name?  Bathsheba.  Living in the palace provides opportunity and time for devotion to developing stories, character, and for writing.  Other scholars, for similar reasons thus suggest that the Iliad was not necessarily written by a blind male poet-singer called Homer but by a woman living in palatial circumstances.

Bloom thus suggests that people worship literary characters...and who else stops to think of this possibility and its implications?

The idea of Holden Caulfield, the youthful protagonist of "A Catcher in the Rye," was protected by his creator, J.D. Salinger, who recently passed away.

Other writers have attempted to use Salinger's boy-character and convert him to a grown-up man in the exercise of their creative imagination.

Can you do that in America?

If inspired, can one write a book about  the fictional adulthood of the boys named Tom Sawyer or Huckleberry Finn?   Or are they still in copyright?

Can Nikos Kazantzakis write about the unknown youth of a grownup, later deified, called Jesus?  See "The Last Temptation of Christ."  There was some controversy over this book and the resulting film, as I recall, but they weren't banned, so far as I know, at least not in America.  The New Testament character was not copyrighted by Matthew, Mark, Luke, and John, I suppose is the answer to the question whether it was modifiable by subsequent artists.

The ancient Hebrews didn't have copyright, I don't suppose, nor the First Amendment, to protect their thought and expression.

But America, we understand, does.

Yet an American court has ruled that it is improper to appropriate the character of Holden Caulfield, which belongs to Salinger, to the creative use (and profit) of another writer and the public at large who might be entertained or thought-provoked into wondering what kind of person H.C. might have grown up to be.

If one can appropriate God and change His essential aspects, then why not Holden Caulfield?

In America.

Perhaps because the copyright has not run out, but it is extendible for quite long periods, as observed a few years ago in the so-called Walt Disney case, by a tractable Congress and compliant Court.

Here's the opinion item which prompts the above rumination, thank you.

rs

***

SFGate


 J.D. Salinger's complaint

Roger Rapoport

Monday, February 8, 2010

J.D. Salinger may be gone, but his ability to persuade a New York court to ban Swedish author Fredrik Colting's novel "60 Years Later" makes his estate the center of one of the biggest intellectual property battles in the land.

Last year, Salinger and his literary trust persuaded New York Federal District Judge Deborah Batts to enjoin publication of Colting's homage, which profiles the dotage of both author Salinger and Holden Caulfield, the protagonist in Salinger's "The Catcher in the Rye." The New York Times Co., the Tribune Co., Gannett, the American Library Association and attorneys with the Stanford, UC Berkeley and Georgetown law schools have all filed amicus curiae briefs supporting Colting's appeal.

Batts' decision to ban the novel has enormous impact on the free speech rights of writers, critics and other creative artists. If the decision is upheld, authors, professors and anyone with an interest in the written word could be victim of this decision to uphold Salinger's belief that he alone controlled his characters' lives and their thinking.

The irony here is worthy of a great novelist. Why would Salinger, whose own work has appeared on many banned-book lists over the years, have wanted to silence a new author like Colting - particularly after "60 Years Later" already was published in the United Kingdom? His suit is in line with the failed attempts of the literary estates like those of James Joyce, J.R.R. Tolkien and others to prevent the publication of reference works and literary criticism.

Traditionally the fair-use doctrine has allowed creative artists to use portions of a copyrighted work without permission for such purposes as criticism, comment, news reporting, teaching, scholarship or research.

But in the "60 Years Later" case, Batts bought Salinger's argument that because this depiction of Holden Caufield as a senior citizen infringed on his "Catcher in the Rye" copyright. In their amicus brief supporting Colting's appeal, the media companies argue: "The only harm appears to be to the pride of a reclusive author." The decision to ban Colting's book "defies common sense, and is not - and cannot be - the law."

Many examples of books drawing elements from such classic works as "Uncle Tom's Cabin," "War of the Worlds" and "Gone With the Wind" populate libraries. Salinger's argument - that his iconic character must be protected from copyright infringement - raises a much larger question for scholars drawing on great works for inspiration. Whether it's a novel like Colting's or a parody of Roy Orbison's "Oh, Pretty Woman," fair use remains the heart and soul of the creative process.

When Batts suggested from the bench that there was no need for readers to enjoy a new way of looking at Holden Caulfield because readers could simply read it "twice, or maybe five years later," she was giving Salinger what an amicus brief defending Colting calls "a monopoly on reassessments of Holden."

No such monopoly exists anywhere in copyright law. As Kevin Smith, scholarly communications officer at Duke University, puts it: "Judge Batts' logic would deprive each new author of those giants upon whose shoulders, Isaac Newton famously reminded us, we must all stand if we wish to see clearly."

Roger Rapoport is president of the Right to Write Fund, which defends the First Amendment rights of creative artists. To learn more, go to www.righttowrite.org <http://www.righttowrite.org>.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/08/EDJF1BT74Q.DTL

This article appeared on page *A - 14* of the San Francisco Chronicle

© 2010 Hearst Communications Inc. <http://www.sfgate.com/chronicle/info/copyright/>

FORCED BLOOD TESTING

This exchange from the Conlawprofs:

Robert B. wrote: 

Once again, our local state's attorney [Illinois] will implement a policy of "no refusal" in regard to administering breath tests for the upcoming weekend. If drivers refuse, then the police officer will obtain a search warrant from an on-call judge and the driver will be taken to a hospital for the administration of either a blood or a breath test.

In defending the practice, the state's attorney was quoted as saying that blood-alcohol content is physical evidence and it can be collected.

Does anyone perceive any legal issues with this practice? The state's attorney has announced his intent to make the program a standard operating practice for the local area.

Bob

Perhaps you are referring to the Rochin doctrine of improper bodily intrusion (forcible stomach pumping by police w/o a search warrant to recover swallowed balloons of heroin, if I recall accurately). 

Here the state's attorney is taking the precaution of obtaining a warrant from the higher authority, the court, based on a showing of probable cause, driving plus objective signs of intoxication as related by an officer: driving error, odor of alc. bev. on breath, eyes watery, speech slurred, gait impaired, balance off, alleged failure of fsts, possible admission of drinking, etc.  Issuance of a warrant cures lots of sins.

Forcible stomach pumping may shock the conscience. 

Drawing a blood sample may not; one never knows on matters of conscience, does one. 

My surmise is that there are cases on it, as the practice has been in existence for decades where there's been an accident and the suspect has been brought to the hospital unconscious and is unable to give express consent.  See the implied consent laws of some states.

I'd be surprised to see the practice condemned at the state level given concerns about the dangers of DUI.  I'd be shocked if the more conservative four on the high Court were shocked. 

As for the others, they're a pretty conservative bunch, too, push comes to shove.

rs