Death of the Dollar

Funny how the dollar is supposed to be so weak but everyone runs to it when global economic catastrophe looms. Why is that? A panicked sense of tradition? The size of our military? A capitalist legal system? Then when the storm clears everyone says it was a nice visit but now they have to go.

Bearing Scalia's Cross

Ahh, Justice Scalia, just when I was going to lay off you for a while you paint a big bulls eye on your forehead with an intemperate outburst about how a war memorial cross on what was once public land is not an establishment clause violating religious symbol but a one size fits all commemorative symbol. Scalia's outburst was in reaction to an ACLU lawyer upstaging Scalia by pointing out, to laughter in the courtroom, that Scalia's argument that the cross was a generic commemorative symbol in the memorial context made no sense in light of the fact that there is a dearth of crosses in Jewish cemeteries. The ACLU lawyer's riposte was in reaction to Scalia's smug question as to whether it would be better if instead of a cross there was some sort of amalgamation of the cross, the star of David, and Islam's star and crescent. Because you know, all dead soldiers belong to one of the religions of Abraham and there are no atheists in foxholes. Scalia emphatically argued that crosses in this context aren't really Christian symbols because they're all over the place in cemeteries, everybody does it, so it's really not religious symbolism but popular symbolism that is not subject to establishment clause challenges. Scalia is all about majority rule on this point, the minority can and is going to hell as far as he's concerned. No doubt if the case was about a secular attack on Catholicism for its seemingly entrenched pederasty and ritual cannibalism he would rush to protect minority rights. Weak. What happened to you Scalia? I used to have a grudging respect for you. Were you just fronting in the Texas flag burning case?

Defending Polanski

As a father of two children I have no sympathy for what Polanski did and believe he needs to face the music without any "but I'm a great artist" mea culpas. If he had any guts he'd waive extradition and confront the situation head on. But as a defense lawyer I can't help note that a lot of what has been written, pro and con, about Polanski misconstrues the procedural record and the weight one should give to grand jury testimony.

Some basic facts. He never had a trial and has never been sentenced. He pleaded guilty to statutory rape to avoid trial on more serious charges and then was put under psychiatric observation for 42 days for the purposes of preparing a sentencing report. When Polanski decided that the Judge was not going to honor the terms of Polanski's deal with the prosecution (a plea deal does not bind a court because the deal is only between the prosecution and the defense) and just give him probation he fled the country in the face of a maximum twenty year sentence.

Polanski's detractors (including me) repeatedly cite to the victim's grand jury testimony for the facts of Polanski's rape ("the so called crime") of a 13 year old carried out in part by plying her with champagne and quaaludes. But caution is in order when citing to grand jury testimony as proof of facts. When you read the grand jury testimony of the victim it's quite obvious that she was coached. This doesn't mean it's not true, but doubtless the DA sat the victim down for witness prep before her testimony. It is perfectly legitimate to prepare a witness, particularly a rape victim, for the experience of testifying as long as you don't tell them what to say. But it's not always so easy during a prep session to avoid shaping a witnesses testimony to conveniently fit your case. Particularly when you are dealing with a young and probably impressionable witness. The transcript reads as if the prosecutor had gone over his line of questioning with the victim before hand. Whether everything that she testified to was accurate is difficult to determine however because there was no cross-examination. Grand jury witnesses are not subject to cross-examination. Grand juries are convened to determine if there is sufficient evidence supporting a finding of probable cause for an indictment, not to make final findings of fact. The prosecutor runs the show exclusively. So when you're reading the grand jury testimony, you're reading the Prosecutor's unchallenged narrative exclusively, and the prosecutor is always striving for the most dramatically compelling narrative possible to justify the charges. Thus grand jury testimony should always be read with some skepticism.

Simplistic Scholasticism

Justice Scalia is a fan of the old canard that because lawyers don't produce anything they lack value. Or to be fair to his position, he maintains that great minds are wasted on the legal profession because the minds would be put to greater use producing, say, a car that runs on solar energy or some other thing that under his feudal (Catholic) ideology adds value to society. Implicit in his view is the proposition that only those that produce useful commodities have value for society. This view has some bizarre implications. Under it, for example, doctors have no value. Same for anyone who has a "great mind" (whatever that is) who chooses to provide a service for society rather than a commodity.

Scalia's myopia has earned him many fans who cling to the simplicity of his absolutist statements because they are easily digestible and don't upset the orthodox stomach. But enough of this "kill all the lawyers" crap. Justice Scalia, if you have such a dim view of your profession and such a high view of your acuity, please resign your post as Supreme Court justice and go invent something of value. Go back to the impotent (non-producing) outposts of academia from which you came as you obviously have little experience in the real world of lawyering beyond the asphyxiating cloister you operate in. Litigators and transactional lawyers add value to our society every day.

Litigators facilitate the non-violent resolution of the innumerable conflicts that arise in our society every day. Don't take that for granted. One does not have to look too far in the world to find examples where violence is used to resolve a disagreement over a transaction, or where the government executes an innocent person as a convenient scapegoat. Adversarial proceedings in court are a form of ritualized fighting that resolves conflict without bloodshed. On more than one occasion I have put an end to an abusive husband's reign over his wife by using the tools that the law provides me. Don't tell me that has no value. By so doing perhaps I've even freed a "great mind" to go and invent something useful. And litigators have often served as a bulwark against the tyranny of a government run amok. As such litigators play a crucial role in our civilization.

As for transactional lawyers, how is the purported "great mind" going to actually produce their society changing commodity without the legal structures necessary to raise the capital necessary to produce the commodity on a scale large enough to impact society? Corporations, partnerships, limited liability partnerships, limited liability companies, subscription commitment facilities and other legal entities facilitate the raising and free flow of capital necessary to the production of any commodity on a large scale. And it is transactional lawyers who create these entities, as well as securing the rights of the "great mind" via the private law of contract that allows the commodity producer to profit from their invention. Without a contractual guarantee of remuneration for your invention there is little incentive to create one. Why waste your time on something that won't put food on your table?

I could go on and on by the point is made. Grade school Marxist economics that fetishizes commodities over service is misguided and unworthy of a "great mind." Another day in my love/hate relationship with Justice Scalia.