Quote of the Week

If you have any comments about this week's quote, or wish to recommend a quote for future weeks, email or call us. Starting this year, old quotes of the week will be collected here. For one of the definitive essays on lawyering, take a look at Abraham Lincoln's Notes on the Practice of Law. 

Prior Quotes

Lawyers Don't Listen

"Lawyers are notorious for not listening. They are too anxious to speak. The judge begins to ask a question and the lawyer assumes he knows where the judge is going and the automatic pilot kicks in and he starts answering -- often in the middle of the question."

Hon. Alex Kozinski, quoted in Jeffrey Cole, My Afternoon with Alex: An Interview With Judge Kozinski, 30 Litigation 6, 18 (Summer 2004).

The Law Depends Upon Respect for Language

"[The] law depends on respect for language and would be served better by statutory amendment (if Congress sees asymmetry) than by racking statutory language to cover a policy it fails to reach."

Watson v. United States, __ U.S. ___ (Dec. 10, 2007) (Souter, J.), available online at http://www.law.cornell.edu/supct/html/06-571.ZO.html.

Philip Marlowe - Client Loyalty

"Until you guys [homicide detectives] own your own souls you don't own mine. Until you guys can be trusted every time and always, in all times and conditions, to seek the truth out and find it and let the chips fall where they may -- until that time comes, I have a right to listen to my conscience, and protect my client the best way I can. Until I'm sure you won't do him more harm than you'll do the truth good. Or until I'm hauled before somebody that can make me talk."

Raymond Chandler, Stories and Early Novels: The High Window (Library of America 1995) at 1072.

Judicial Review

"I think ... that if another branch says that it is not for us [the judiciary] to decide a traditionally justiciable dispute, that branch must explain very clearly and very persuasively why not. We must be skeptical of any such claim. I have done my own electronic search of the Federalist Papers and can find nowhere in them the phrase, 'Trust me.'"

The Honorable Robert D. Sack, Second Circuit Court of Appeals, May 1, 2008 Remarks Upon Receiving Learned Hand Award from the Federal Bar Council (May 6, 2008 New York Law Journal at 2).

Korematsu

"[A] judicial construction of the due process clause that will sustain [an order detaining American citizens of Japanese extraction] is a far more subtle blow to liberty that the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic."  A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case."

Justice Robert Jackson, dissenting, in Korematsu v. United States, 323 US 214, 245-46 (1944). The same can be said concerning any Supreme Court imprimatur of torture, extradition, or detention without judicial review in today's post-9/11 climate of fear.

Lawyer Courtesy

"...doing favors for opposing counsel for no reason other than to acknowledge their place in the prized club of lawyers -- to honor their professional honor -- might be worth considering, anachronistic as it sounds. If nothing else, it might make all of us feel a little better, a little less pedestrian and mercantile, about ourselves and how we approach our work, even as we know that pleasing clients and not fellow lawyers is necessarily 99 percent of what we do each day. As a Pennsylvania Supreme Court justice observed: 'One of the great satisfactions in the practice of the legal profession is the reciprocal good faith, mutual respect, and courtesy that normally exist between and among lawyers in the conduct of litigation, as well as in their other dealings with each other'. Fox v. Mellon, 264 A.2d 623, 627 (Pa. 1970). Helping a colleague in need helps promote this great satisfaction."

Martin J. Siegel, To Err is Human, But to Forgive....?, 34 Litigation 2 (Winter 2008) at 17.

Sack on Defamation

"Lawyers, by trade, tend to be totally impartial only when they are totally uninformed."

Robert D. Sack, Sack on Defamation, Libel, Slander and Related Problems (3d ed. April 2006), Preface to First Edition (1980).

Dr. Martin Luther King - I Have a Dream

"I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal."
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at a table of brotherhood.
I have a dream that one day even the state of Mississippi, a desert state, sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
I have a dream today.
I have a dream that one day the state of Alabama, whose governor's lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.
I have a dream today.
I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith with which I return to the South. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with a new meaning, 'My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring.'
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!
Let freedom ring from the snowcapped Rockies of Colorado!
Let freedom ring from the curvaceous peaks of California!
But not only that; let freedom ring from Stone Mountain of Georgia!
Let freedom ring from Lookout Mountain of Tennessee!
Let freedom ring from every hill and every molehill of Mississippi. From every mountainside, let freedom ring.
When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, 'Free at last! free at last! thank God Almighty, we are free at last!'"

Speech on the Mall at Washington DC (August 28, 1963) (full text at www.mlkonline.net/dream.html).

Long Hours are the Death of Learning

"Entertainment is passive; the expression 'to be entertained' itself reflects this. Learning, by contrast, is active, and the expression 'to be learned' can be meaningfully applied only to the object of a learning experience and not to the person undergoing it. ... To learn something, I must suspend certain, at least, of my existing prejudices, and though the goal of this exercise might be described as a state of passive openness, I need to expend some energy to reach it. The passivity that is involved in being entertained is a different, indeed nearly opposite, condition. ... In entertainment, I give myself over to my prejudices instead of making an effort to suspend them, as I must do to extend my understanding of how other people live and what they care about. And that is why the more a person devotes himself, outside his work, to entertainment -- the more he travels and reads and does whatever else he does for the sake of amusement alone -- the less likely his experience of human life is to widen as a result.

The longer a lawyer's working day, however, the less energy he or she will have at the end of it for anything but entertainment."

Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession(Belknap Harvard 1993) at 305-306.

In our view, longer working hours and the rise of infotainment and the punditocracy have contributed to a serious -- and potentially fatal -- diminishment of critical thinking in this country.

The Election of 2000

"Random chance - a freakishly close vote in the single decisive state - gave the Supreme Court the chance to resolve the 2000 presidential election. The character of the justices themselves turned that opportunity into one of the lowest moments in the Court's history. The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits - among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court."

Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007).

Pleading Defamation: My Donkey's Urine is as Good as Your Beer

"In an Action upon the Case for words, the words were these: The Defendant having communication with some of the Customers of the Plaintiff, who was a Brewer, said, 'That he would give a peck of malt to his mare, and she should piss as good beer as [Plaintiff] doth Brew....'"

Held: "[T]he words of themselves were not actionable... [T]he words are only comparative, and altogether impossible also. [I]t has been adjudged, that where one says of a Lawyer, That he had as much Law as a Monkey, that the words were not actionable, because he hath as much law, and more also. But if he had said, That he hath no more Law than a Monkey, those words were actionable."

Dickes v. Fenne, Kings Bench, 1 March 93, 1 Rolle Abr. 58, W. Jones 444 (1622). Spelling and punctuation have been modernized for readability.

Milton, Areopagitica

"Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties."

John Milton, Areopagitica (Legal Classics Library reprint 1992) at 120 (entry for October 25).

The text of Areopagitica is available free online at http://www.dartmouth.edu/~milton/reading_room/areopagitica/ and http://www.gutenberg.org/catalog/world/readfile?fk_files=217813.

Universal Declaration of Human Rights

"There followed in 1948 a Universal Declaration of Human Rights adopted by the General Assembly of the United Nations. It proclaimed among other things that:

• all human beings are born 'free and equal in dignity and right'
• everyone has the right to 'life, liberty and security of person'
• no one shall be subjected to 'torture or to cruel, inhuman, or degrading treatment or punishment'
• no one shall be subjected 'to arbitrary arrest, detention or exile'
• everyone is entitled to 'a fair and public hearing by an independent and impartial tribunal' in criminal proceedings and has the right 'to be presumed innocent until proved guilty'
• no one shall be convicted of crimes under ex post facto laws
• everyone has the right of freedom of movement and residence within each nation
• everyone has the right to 'freedom of though, conscience, and religion,' to 'freedom of opinion and expression,' to freedom of 'peaceful assembly and association,' and to 'equal access to public service in his country'
• 'the will of the people shall be the basis of the authority of government'
• everyone has 'the right to work,' 'the right to rest and leisure,' and 'right to education.'

These and other rights gain much of their inspiration from our own Declaration of Independence and Bill of Rights. This Declaration may in legal effect have no binding consequences in any land; it may only be a reaching for the stars. But it lifts the hearts of men the world around. For it states in solemn and dignified terms the aspirations of men and women of good will of every race."

William O. Douglas, An Almanac of Liberty (1954) at 120 (entry for October 25).

Brandeis on Stare Decisis

"The Supreme Court does not easily acknowledge error or overturn its own past judgments. Stare decisis, the authority of the past, has always and necessarily been a vital principle in the Court's conduct. ... The importance of established and reliable precedents led Justice Brandeis on one occasion to remark that 'In most matters it is more important that the applicable rule of law be settled than that it be settled right.'

But on constitutional, as distinguished from common-law, questions, the Supreme Court has been more flexible, recognizing that the Constitution is an evolving charter. 'In cases involving the Federal Constitution,' Justice Brandeis went on to say, 'where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning.'"

Alan Barth, Prophets With Honor: Great Dissents and Great Dissenters in the Supreme Court (Knopf 1974) at 13-14 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) (Brandeis, J., dissenting)).

Niebuhr: Man's Capacity for Justice, Inclination to Injustice

"But a too consistent optimism in regard to man’s ability and inclination to grant justice to his fellows obscures the perils and chaos which perennially confront every society, including  a free society. In one sense a democratic society is particularly exposed to the dangers of confusion. If these perils are not appreciated they may overtake a free society and invite the alternative evil of tyranny.

Thus, modern democracy requires a more realistic philosophical and religious basis, not only in order to anticipate and understand the perils to which it is exposed; but also to give it a more persuasive justification. Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary."

Reinhold Niebuhr, Children of the Light & Children of the Dark: A Vindication of Democracy and a Critique of its Traditional Defense, reprinted in Rasmussen, ed., Reinhold Niebuhr: Theologian of Public Life (Fortress Press 1991) at 254 (emphasis added).

Thanks to David Rosenberg, Esq. of Marcus Rosenberg & Diamond LLP for suggesting this week’s quote.  

Yiddish in Legal Opinions

        The spread of legal Yiddish is often inadvertent; for every case that self-consciously cites Leo Rosten, there are ten where a word seems to be used just because it’s the right word. One of the authors of this very article has--entirely unwittingly--done this: his opinion in White v. Samsung Electronics America, Inc. contains the first use of the word "schtick" in a reported case. (As it happens, the law clerk who put it in was Irish Catholic.) And it was only by accident that the authors learned of the novelty of this feat; a friend wrote to say he was surprised to see the word in a published opinion. What’s so surprising? How else would you say it?

           Where all this will go from here is hard to say. "Chutzpah" is firmly ensconced, and, we’re happy to say, usually spelled right. Ch’s are always better than mere H’s, and the h at the end gives it just the right touch. "Kosher," "kibitz," "maven," and maybe "schtick" (five uses, all in the last decade) and "klutz" are looking good. The other "sch" words are iffier, but we think they’ve got a future. Others, like "noodge" and "meshugge," haven’t really made a dent, though they deserve better.

           We return then to the beginning, to chutzpah. The most famous definition of "chutzpah" is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.

           But there’s another legal chutzpah story. A man goes to a lawyer and asks: "How much do you charge for legal advice?"

           "A thousand dollars for three questions."

           "Wow! Isn’t that kind of expensive?"

           "Yes, it is. What’s your third question?"

           Chutzpah.

Kozinski & Volokh, Lawsuit, Shmawsuit, www.law.ucla.edu/volokh/yiddish.htm (updated version of an article that was originally published at 103 Yale Law Journal 463 (1993))

Seneca on Anger in Oratory

"'The orator,' you say, 'at times does better when he is angry.' Not so, but when he pretends to be angry. For the actor likewise stirs an audience by his declamation not when he is angry, but when he plays well the role of the angry man; consequently before a jury, in the popular assembly, and wherever we have to force our will upon the minds of other people, we must pretend now anger, now fear, now pity, in order that we may inspire others with the same, and often the feigning of an emotion produces an effect that would not be produced by genuine emotion. 'The mind that is devoid of anger,' you say, 'is inert.' Very true, unless it is actuated by something more powerful than anger. A man should e neither a highwayman nor his victim; the one is too mild in spirit, the other too harsh. Let the wise man show moderation, and to situations that require strong measures let him apply not anger, but force."

Lucius Annaeus Seneca, On Anger, from Seneca, I Moral Essays (Loeb Classical Library, Basore trans.)

Terence F. MacCarthy - Always Wear a Red Shirt When you Cross Examine

On the night before an anticipated battle, a brave and exceptionally competent general spent hours going over every possible contingency with his senior officers. At the end of the meeting, when he had gone over and anticipated every possible detail of the next day's battle, the general walked over to his foot locker and pulled out a red shirt. "Gentlemen," he announced, "we have planned for everything that could happen tomorrow. Nevertheless, there are never any guarantees of victory. I will take one final precaution. If I should be wounded, I do not want the men to know I have been wounded. Therefore, I will wear this red shirt. They will not see the blood nor know that I was wounded."

His senior officers marveled at the thoroughness and wisdom of this preparation. Truly they were in the presence of a military genius.

One of the senior officers, who was not quite as brave as his commanding general, stepped forward and said, "General, that is a brilliant suggestion and incredible preparation. I, too, shall dress in preparation for the worst. Before tomorrow's battle, I shall also be ready. I will wear my brown trousers."

You may forget the brown trousers part, but remember the red shirt. Always wear the red shirt when you cross-examine. Make sure the jury does not see you bleed.          

Terence J. McCarthy, McCarthy on Cross Examination (ABA 2007) at 133.

Hugo Black - Constitutional Interpretation as a Product of the Times

"[Black] would not admit that the child-labor decision [invalidating child-labor restrictions] was final. Instead, he said: 'The Constitution is final,' for six new members had come into the Court since 1918, and 'no doctrine of stare decisis applies to opinions on constitutional interpretation.' He expressed his basic conviction that constitutional interpretation was a product of the times in which men lived, and that 'the tendency of today is to give a new and exalted emphasis to the more sacred right of human beings to enjoy health, happiness, and security justly theirs in proportion to their industry, frugality, energy and honesty.'"

John P. Frank, Mr. Justice Black: The Man and His Opinions (1948) at 90. Justice Black was an American original. Born in dirt poor Clay County Alabama and a one-time member of the KKK, he became a champion of civil liberties and civil rights, and a staunch supporter of FDR's New Deal. A constitutional literalist who believed that the Bill of Rights applied in toto to the states (a minority view on the Supreme Court), he also refused to find a constitutionally protected right of privacy and opposed the concept of substantive due process. Although a literalist, he also believed that judges enjoyed a broad mandate to interpret the constitutional text to its maximum extent in light of changing times. The concepts of original intent or a frozen constitutional text were anathema to him.  

Arnold - An Ironclad Nerve

"I know of a clever young lawyer

Conversant with all the Reports;

He retains in his head all that Blackstone has said

On pleadings and answers and torts.

He reels off judicial opinions

From Marshall's to Chief Justice White's,

Injunctions, restraints and amended complaints

He says are his greatest delights.

 

But though he quotes obiter dicta

And knows all about what they mean,

And he has stowed every word of the Code

In the depths of his marvelous bean,

At sessions, or even police courts

You never will see him appear;

They keep him at work as a library clerk

At seventeen hundred a year.

 

I know of another attorney

Whose knowledge of law is so slight,

That his colleagues can't see how he got his degree,

Unless with blackjack at night.

But he blusters and shouts at a jury,

Spouts language all over the place,

And the courtroom is filled and the public is thrilled

Whenever he's trying a case.

 

His clothes are the latest and loudest,

His fees are the highest their are,

And the people agree as a unit that he

Is the brightest young man at the bar.

 

The tale is the truth, not a fable.

And therefore no moral I'll draw,

But I trust you'll observe that an ironclad nerve

Is an excellent thing in the law."

Paul Arnold, A Tale of Two Lawyers, from William L. Prosser, The Judicial Humorist (Little Brown & Co. 1952) 28.

Constitutional Convention of 1787: The Executive Does Not Have Power to Suspend Laws

"Mr. Butler moved that the Resolution be altered so as to read: 'Resolved that the National Executive have a power to suspend any Legislative Act for the term of ______.' Doctor Franklin seconds the motion. Mr. Gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answer the salutary purpose of checking unjust or unwise ones. On question 'for giving this suspending power' all the States, to wit Massts, Cont., N.Y., Del., Maryd., Virga. N.C., S.C., Georgia were No."

Hunt and Scott, ed., 1 James Madison, Debates on the Federal Convention of 1787 (Promethues Books 1987) at 54. The Convention expressly rejected, and unanimously, any power of  the chief executive to ignore laws of Congress, even temporarily. The proponents of the so-called "unitary executive" of Cheney/Bush ignore both the history and the text of the Constitution. The idea that the president could ignore a law he/she signed based solely on his/her determination of national security or some other concern is directly contradicted by the debates.  

James Fitzjames Stephen - American Equality

"The success of equality in America is due, I think, mainly to the circumstance that a large number of people, who were substantially equal in all the more important matters, recognized that fact and did not set up unfounded distinctions. How far they actually are equal now, and how long they will continue to be equal when the population becomes dense, is quite another question. It is also a question which I cannot do more than glance at in two words in this place, whether the enormous development of equality in America, the rapid production of an immense multitude of commonplace, self-satisfied, and essentially slight people is an exploit which the whole world need fall down and worship.

Upon the whole, I think that what little can truly be said of equality is that as a fact human beings are not equal; that in their dealings with each other they ought to recognize real inequalities where they exist as much as substantial equality where it exists. That they are equally prone to exaggerate real distinctions which is vanity, and to deny their existence, which is envy. Each of these exaggerations is a fault. . ."

James Fitzjames Stephen, Liberty, Equality, Fraternity (Liberty Classics 1993) 163.

Baronet Stephen (1829-1894) was a Victorian lawyer, judge and legal historian. His Liberty, Equality, Fraternity is a counter-argument to Mill's On Liberty. Much beloved of a certain breed of conservative, Stephen is worth reading, even though history has judged Mill the emphatic winner of their argument. 

Marshall -- The Court dares not usurp power, but also does not shrink from its duty

"That this court does not usurp power is most true. That this court dares not shrink from its duty is not less true.

No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self reproach, would drain it to the bottom. But if he has no choice in the case; if there is no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated in the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."

Chief Justice John Marshall, sitting as United States District Court Judge in United States v. Burr, excluding testimony prior to submitting the case to the jury, quoted in Smith, John Marshall: Definer of a Nation 372 (1996). Burr was acquitted. President Jefferson, Marshall's second cousin, was incensed, and Marshall was excoriated by the Republican press and burned in effigy.   

Hicks, The Universality of Law

"A distinguishing characteristic of law is its universality. Avoid the law as we will, it nevertheless creeps into the language and thought of our daily lives, and becomes part of our domestic, social and political environment. Throughout the ages, it has been a progressive, mobile thing, the result and expression of civilization rather than its source. Law is not divorced from life; it is an intimate part of it. Law is a subject which in every era forms an essential stratum of the structure of society. Cleave down through any part of this structure, seeking the foundations upon which modern philosophy, religion, history, economics and sociology are built, and you come to a lawyer of law -- not lawyer's law alone, but the people's law -- law which is the product of human experience. That there is a legal side ot nearly every subject of investigation and research is a conclusion that cannot be escaped."

Frederick C. Hicks, Men and Books Famous in the Law (1921) at 17, from the chapter "Human Appeal of Law Books." Hicks was the law librarian of Columbia Law School, as well as Yale, and was the driving force behind modern legal research.

According to Stacy Etheredge in her article "Frederick C. Hicks: The Dean of Law Librarians" (http://www.aallnet.org/products/pub_llj_v98n02/2006-18.pdf):

"Although his name and life are probably known to some, he is one of the figures from our history who is in potential danger of becoming nothing more than a dusty name in old issues of Law Library Journal for no reason other than the passage of time. But if there is one individual from the first half of the
twentieth century who deserves to have new life breathed into him for the benefit of law librarians everywhere, it is Frederick Hicks.

Measured by any standard, the magnitude of Hicks’s accomplishments is astounding. He was law librarian at two of the most important academic law libraries in the country, Columbia and Yale, for a combined total of more than thirty-one years. He not only wrote what was considered for decades to be the seminal book on legal research but, perhaps more important, he was also the primary force behind the nascent movement of teaching legal research in law schools."

Einstein - Individuality

• "In teaching history, there should be extensive discussion of personalities who benefited mankind through independence of character and judgment." Letter to Vivian Anderson, May 12, 1953.

• "Imagination is more important than knowledge." Viereck, Glimpses of the Great (1930) at 377.

• "Long live impudence! It is my guardian angel in this world." Letter to Mileva Maric, December 12, 1901.

• "It is important to foster individuality, for only the individual can produce the new ideas." Message for Ben Scheman Dinner, March 1952.

• "To punish me for my contempt of authority, fate has made me an authority myself." Hoffman and Dukas, Albert Einstein: Creator and Rebel (1972) at 24.

All quoted in Isaacson, Einstein: His Life and Universe (2007).

G. B. Shaw, Maxims for Revolutionists - a selection

17.  Democracy substitutes election by the incompetent many for appointment by the corrupt few.

***

42.  Do not give your children moral and religious instruction unless you are quite sure they will not take it too seriously. Better be the mother of Henri Quatre and Nell Gwynne than of Robespierre and Queen Mary Tudor.

***

87.  Self-denial is not a virtue: it is only the effect of prudence on rascality.

***

151.  Do not waste your time on Social Questions. What is the matter with the poor is Poverty: what is the matter with the rich is Uselessness.

***

169.  It is dangerous to be sincere unless you are also stupid.

***

Appended to Man and Superman (1902-1903) maxims available online at http://www.bartleby.com/157/6.html; text of play available online at http://www.gutenberg.org/catalog/world/readfile?fk_files=226129

Bayes' Theorem - how to update or revise probabilities based upon new evidence

P(A|B) = P(A) x P(B|A)/{P(B|A) x P(A)}+{P(B|not A) x (P(not A)}

"[T]his equation says that the truth of our hypothesis given the evidence (the term to the left of the equals sign) can be determined by its previous probability (the first term on the right) times a 'learning factor' (the remaining, thickety term). If we can find probabilities to define our original state of mind and estimate the probabilities for the evidence appearing given our hypothesis, we now have a method fro tracking our reasons to believe in guilt or innocence as each new fact appears before us.

How could this work in practice? The old woman's body was found in her apartment, brutally hacked; we know the student, Raskelnikov, had been quarreling with her - something to do with money. Then again, she was a pawnbroker; she could have had many enemies among the poor in the neighborhood- all desperate, all in her debt -- many no doubt rough men in hard trades. The boy stands in the dock; he seems more pitiable than frightening, his hands none too clean, but soft. Maybe he did it; maybe he didn't-our opinion is evenly balanced.

Then the forensic expert testifies about the ax; the latent fingerprints on it are similar to Raskelnikovs's. But are they his? The expert, a scrupulous scientist, will not say; all that his statistics can justify is a statement that such a match would appear by chance only one time in a thousand.

We slot our probabilities into Bayes' formula; P(A|B) is our new hypothesis about the suspects' guilt, given the fingerprint evidence; P(A) is our previous view (.5), P(B|A) is the chance of a fingerprint match, given he was guilty (1); P(B|notA) is the chance of a fingerprint match given he was not guilty (.0001); and P(not A) is our previous view of Raskelnikov's innocence (.5). Put it all together:

P(A|B) = (.5) x 1/({1x.5} + {.0001 x .5}) = .9999

[in English, the probability of guilt given the fingerprint match = the probability of guilt times (the probability of a fingerprint match given guilt divided by the sum of (the probability of fingerprint match given guilt times the probability of guilt) plus (the probability of fingerprint match given not guilt times the probability of not guilt))

The iron door swings shut and the haggard figure joins the chain of convicts headed for Siberia." 

M. Kaplan and E. Kaplan, Chances Are... Adventures in Probability (Penguin 2006) 186-187.

Oliver Wendell Holmes - Absolute Truth

When I say that a thing is true, I mean that I cannot help believing it. I am stating an experience as to which there is no choice. But as there are many things that I cannot help doing that the universe can, I do not venture to assume that my inabilities in the way of thought are inabilities of the universe. I therefore define the truth as the system of my limitations, and leave absolute truth for those who are better equipped. With absolute truth I leave absolute ideals of conduct equally on one side.

Oliver Wendell Holmes, "Ideals and Doubts", Collected Legal Papers, pp. 304-305.

Reinhold Niebuhr - Power Breeds Dishonesty

"Men will not cease to be dishonest, merely because their dishonesties have been revealed or because they have discovered their own deceptions. Wherever men hold unequal power in society, they will strive to maintain it. They will use whatever means are most convenient to that end and will seek to justify them by the most plausible arguments they are able to devise."

Reinhold Niebuhr, Moral Man & Immoral Society (Westminster John Knox Press 2001) at 34.

Colin Powell - Closing Guatanamo

"Guantanamo has become a major, major problem for America’s perception as it’s seen, the way the world perceives America. And if it was up to me, I would close Guantanamo not tomorrow, but this afternoon. I’d close it. And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system. The concern was, 'Well, then they’ll have access to lawyers, then they’ll have access to writs of habeas corpus.' So what? Let them. Isn’t that what our system’s all about?"

Colin Powell, Meet the Press June 10, 2007, available online at http://www.msnbc.msn.com/id/19092206/page/4/.

Hoffer, The True Believer

"The readiness for self sacrifice is contingent on an imperviousness to the realities of life. He who is free to draw conclusions from his individual experience and observation is no usually hospitable to the idea of martyrdom. For self sacrifice is an unreasonable act. It cannot be the end product of a process of probing and deliberating. All active mass movements strive, therefore, to interpose a fact-proof screen between the faithful and the realities of the world. They do this by claiming the ultimate and absolute truth is already embodied in their doctrine and that there is no truth or certitude outside it."

Eric Hoffer, The True Believer (Perennial Classics 2002) at 79. Hoffer was a self taught thinker who was awarded the Presidential Medal of Freedom in 1983. The True Believer provides a lot of insight into the Falwells, Robinsons and Bin Ladens of our world.

The Common Law Tradition

"Gentlemen of the, the lawyers have talked to you of law. It is not the law we want, but justice. They would govern us by the Common Law of England. Trust me, gentlemen, common sense is a much safer guide for us, the common sense of [the towns] which have sent us here to try  this case between two of our neighbors. It is our business to do justice between the parties not by any quirks of the law out of Coke or Blackstone -- books I have never read and ever will -- but by common sense as between man and man."

Charge of John Dudley, farmer, trader, and New Hampshire Associate Judge from 1785-1797, quoted in Warren, History of the American Bar (Little Brown 1911) at 136. When the lawyers objected to this manner of charge to the jury, Judge Dudley responded:

"Let me advise you young man, not to come here with your new-fangled law -- you must try your cases as others do, by the court and jury."

What Separation of Powers? - The Onion

"In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers.

'As president, I strongly believe that my  first duty as president is to support and serve the president,' Bush said during a televised address from the East Room of the White House shortly after signing his executive order. 'I promise the American people that I will not abuse this new power, unless it becomes necessary to grant myself the power to do so at a later time.'

 ***

'This is a clear case of President Bush having carte blanche to grant himself complete discretion to enact laws to increase his power,' Senate Minority Leader Harry Reid (D-NV) said. 'The only thing we can do now is withhold our ability to grant him more authority to grant himself more power.'

'Unless he authorizes himself to strip us of that power,' Reid added.

Despite criticism, Bush took his first official action under the new law Tuesday, signing an executive order ordering that the chief executive be able to order more executive orders.

In addition, Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power, with or without presidential approval."

The Onion, August 1, 2006 (available online at http://www.theonion.com/content/node/51140)

How long will Congress continue to follow the bankrupt and immoral interpretations of John Yoo, chief apologist for torture and chief theorist behind the unconstitutional power grabs by the executive branch? What does it say for our country that the best sources of commentary on serious constitutional issues are The Onion and Comedy Central?  

Is Torture Evidence Admissible?

"It trivializes the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer."

Lord Bingham of Cornhill, Appellate Committee of the House of Lords, as reported in the 12/9/2005 New York Times at A6, col. 1.  Lord Bingham is unique in having occupied all three of the highest judicial offices in England and Wales, and is considered by many to be the UK's most distinguished judge.

It is disturbing indeed that the use of torture has been advanced by some in this country as reasonable and necessary to win the so-called war on terror. What can be more terrible than the governmental use of torture?

Judicial Legislation

As all lawyers are aware, a large part and, as many would add, the best part of the law of England is judge-made law -- that is to say, consists of rules to be collection from the judgments of the Courts. . . the fruit of judicial  legislation.

A.V. Dicey, Law and Public Opinion in England During the 19th Century (MacMillan 1914) 361-362. Albert Venn Dicey (1835–1922) was a professor of law at Oxford University and a leading English constitutional scholar. English Constitutional law, unlike our own, is largely uncodified. The role of judges in writing law, albeit incrementally and with caution, is an integral part of our common law system, and a bulwark against oppression from the executive or from ill-considered majoritarian legislation.

A Bulwark of Liberty

"[Despite abuses], no better means have ever been invented for the discovery of truth than that of cross examination. No more efficacious test of credibility has ever been devised. It is a typically Anglo-Saxon weapon.

It is a sword for cutting through and destroying perjury. It is a bulwark of liberty. Let us find the men to man this rampart and hold it at all costs."

Lloyd Paul Stryker, The Art of Advocacy (Simon & Schuster 1954) at 84. Stryker was one of the giants of NY trial practice in the mid 20th century. Like all leading trial practitioners, he felt that cross examination was essential to accurate fact-finding. As Professor Wigmore observed, cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of the truth."

Sifton - Americans Should Not Give Up Rights for Supposed Safety:

"Especially after the Bolshevik revolution, fear and reaction counseled, even encouraged, capitulation on the civil-liberties front: they always do. This reflexive nastiness seems regularly to appear among us in stressful times, and it is with us again today. It always hits hardest at those who are unprotected and unable to defend themselves -- poor working people without safety nets, often recent immigrants, people considered 'alien' and therefore perhaps hostile, people who question the powers that be. Suddenly they are the targets of cynically imposed law-and-order maneuvers, torrents of hate speech are flushed in their direction, and they are threatened with the loss of the very freedom the United States is pledged to assure them. Today this means Arabs, or Muslims, or South Asians, or Mexicans; in the early years of the twentieth century it meant the laboring poor from whatever land, but especially Germans and southeastern Europeans. 

To my father [theologian Reinhold Niebuhr] and his colleagues, this was all wrong. It was certainly un-Christian, and it was surely unconstitutional. Threats to civil liberties had to be opposed, and opposed vigorously. Americans should not have to accept infringements on their constitutional rights as the price to pay for their supposed safety -- and in any case, we have all learned and relearned at great cost that none of us is every truly safe."

Elisabeth Sifton, The Serenity Prayer: Faith and Politics in times of Peace and War (WW Norton 2003) at 21-22 (emphasis added). Although Franklin probably never said it, there can no doubt that he would agree, that those who would trade their liberty for their security deserve neither.

Rafael Sabatini, Scaramouche, "Lawyers are notoriously unable to observe the law."

"'And yet,' interposed the villainous-looking fellow who played Scaramouche, 'by your own confessing you don't hesitate, yourself, to trespass upon [the Marquis De La Tour d"Azyr's] property.'

'Ah, but then, you see, I am a lawyer. And lawyers are notoriously unable to observe the law, just as actors are notoriously unable to act. Moreover, sir, nature imposes her limits upon us, and nature conquers respect for the law as she conquers all else....'"

Rafael Sabatini, Scaramouche (1921) (Barnes & Noble ed. 2005) at 97. The character Scaramouche is stock character of Itialian farce, a cowardly, foolish and egotistical boaster who is constantly bludgeoned by Harlequin. In Sabatini's swash-buckling historical novel set in the years leading up to the French Revolution of 1789, Scaramouche is one of many roles assumed by the protagonist, trained as a lawyer and "born with a gift of laughter and a sense that the world was mad." As indeed it is.

Our Independent Press

"There is no such thing, at this date of the world's history, in America, as an independent press. . . . The business of the journalist is to destroy truth; to lie outright; to pervert; to vilify; to fawn at the feet of Mammon. . . . We are the tools and vassals for rich men behind the scenes. We are jumping jacks, they pull the strings and we dance. Our talents, our possibilities and our lives are all the property of other men. We are intellectual prostitutes."

John Swinton, toast to New York Press Club (1953) (quoted in Lapham, Gag Rule: On the Suppression of Dissent and the Stifling of Democracy(2004) 99 n. *). Swinton had been a chief of staff for the New York Times. 

Jane Addams on George Washington's Birthday:

"What is a great man who has made his mark upon history? Every time, if we think far enough, he is a man who has looked through the confusion of the moment and seen the moral issue involved; he is a man who has refused to have his sense of justice distorted; he has listened to his conscience until conscience becomes a trumpet call to like-minded men, so that they gather around him and together, with mutual purpose and mutual aid, they make a new period in history."

Jane Addams, Address on February 23, 1903 at Union League Club, Chicago, from Safire, Lend Me Your Ears: Great Speeches in History (1992) at 180.

Pope Benedict - Denigration of Law is an Instrument of Dictatorship

"In the so called years of struggle (the years preceding the Second World War), law was consciously castigated and placed in opposition to so-called healthy popular feeling. The Fuhrer was successively declared the only source of law and, as a result, absolute power replaced law. The denigration of law is never in any way at the service of liberty, but is always an instrument of dictatorship. To eliminate law is to despise man; where there is no law, there is no liberty."

Cardinal Joseph Ratzinger, now Pope Benedict XVI, receiving an honorary Juris Doctorate from LUMSA School of Law in Rome in November 1999, printed in J. L. Allen, The Rise of Benedict XVI (Doubleday 2005) 177. 

Justice Stephen Breyer - Literalism Undermines the Constitution

"'Literalism has a tendency to undermine the constitution's efforts to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively. Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves."

Justice Stephen Breyer, Active Liberty (Knopf 2005) 131-132. As Justice Breyer points out, the school of constitutional interpretation known as original intent is based on historical fiction and borne of a desire to control judicial subjectivity -- in other words, the same sort of results-oriented jurisprudence that the school claims to combat.  

Dickens - Lawyers as Mirrors

"'We, in our profession, are little else than mirrors, after all, . . .; but we are generally consulted by angry and quarrelsome people who are not in their best looks, and it's rather hard to quarrel with us if we reflect unpleasant aspects. I think,' said Mr. Snitchey, 'that I speak for Self and Craggs?'

Decidedly,' said Craggs."

Charles Dickens, The Battle of Life, from Christmas Books (Oxford U. Press) 256. Dickens was a leading court reporter of his day and had an intimate knowledge of the legal profession, which figures prominently in many of his works.

John Mortimer - Lying: 

"To be convicted of being a serious liar you have to make a statement that you didn't believe in or you know to be untrue. So members of the Flat Earth Society or those who, like the great Sir Arthur Conan Doyle, assure us that the dead are readily available to speak at seances and that there are fairies at the bottom of the garden, are not liars. The statements they make may be untrue but they are convinced that they are telling the truth. In fact, they are in the same position, I think, as many unreliable witnesses . . . [who] are convinced of the version of events most favorable to themselves and become sure that it must be the truth."

John Mortimer, Where There's a Will: Thoughts on the Good Life (Viking 2005) 83-84. Mortimer, of course, is a former barrister and the creator of the immortal Horace Rumpole. 

This quote brings to mind the instructions of another immortal, George Costanza, on how to beat the polygraph test:  

"Jerry: So George, how do I beat this lie detector?

George: I'm sorry, Jerry I can't help you.

Jerry: Come on, you've got the gift. You're the only one that can help me.

George: Jerry, I can't. It's like saying to Pavorotti, 'Teach me to sing like you.'

Jerry: All right, well I've got to go take this test. I can't believe I'm doing this.

George: Jerry, just remember. It's not a lie... if you believe it."

Seinfeld Episode 102, "The Beard" (writer: Carol Leifer; first air date: February 9, 1995). 

Phil Hartman, Unfrozen Caveman Lawyer

"Ladies and gentlemen of the jury, I'm just a caveman. I fell on some ice and later got thawed out by some of your scientists. Your world frightens and confuses me! Sometimes the honking horns of your traffic make me want to get out of my BMW.. and run off into the hills, or wherever.. Sometimes when I get a message on my fax machine, I wonder: Did little demons get inside and type it? I don't know! My primitive mind can't grasp these concepts. But there is one thing I do know - when a man like my client slips and falls on a sidewalk in front of a public library, then he is entitled to no less than two million in compensatory damages, and two million in punitive damages. Thank you."

Saturday Night Live, November 23, 1991.

Dworkin, Why does morality matter?

"If . . . you believe that it is of objective importance how you live, then what reason do you have for believing this? What further convictions might you have that explain and justify this belief? You began dying the day you were born, and that dying will not take very long. Why should it matter what you make of your terribly brief life?"

Ronald Dworkin, Is Democracy Possible Here? (Princeton U. Press 2006) at 14. A leading legal philosopher, Dworkin suggests that American political discourse can rise above its current shameful state if the disputants can agree to agree on two fundamental principals that they likely do share, namely (1) that each human life, without exception, has a special kind of objective value; and (2) that each person has personal responsibility to realize the success of his own life, including deciding what kind of life to live. These two principals, according to Dworkin, are the basic conditions of human dignity.

Amos Oz - How to Cure a Fanatic

"The essence of fanaticism lies in the desire to force other people to change. The common inclination to improve your neighbor, mend your spouse, engineer your child, or straighten up your brother, rather than let them be. The fanatic is a most unselfish creature. The fanatic is a great altruist. Often the fanatic is more interested in you than in himself."

Amos Oz, How to Cure a Fanatic (Princeton U. Press 2006) at 57.

And, we might add, the fanatic frequently suffers from the same faults he wants to cure in others, but can't bear to face in himself. As the saying goes, point a finger at someone and three point back at you.

The "Magic Moment" - Kurt Vonnegut

"In every big transaction," said [Professor] Leech, "there is a magic moment during which a man has surrendered a treasure, and during which the man who is due to receive it has not yet done so. An alert lawyer will make that moment his own, possessing the treasure for a magic microsecond, taking a little of it, passing it on. If the man who is to receive the treasure is unused to wealth, has an inferiority complex and shapeless feelings of guilt, as most people do, the lawyer can often take as much as half the bundle, and still receive the recipient's blubbering thanks."

Kurt Vonnegut, God Bless You, Mr. Rosewater (1966) (Dial Press ed. 2006) at 4-5. We should all take care concerning our advisors, when our individual magic moments arise.

McElhaney on Confabulation

"'Confabulation,' said Angus, 'Unconsciously replacing fact with fantasy in your memory is a natural human tendency. Everybody does it to some extent. It's not intentionally lying -- although there is plenty of that going around, as well. Confabulation is subconsciously 'improving' the story so it fits our psychological needs better than what actually happened.

Lawyers make it worse by failing to work with their witnesses before trial by reviewing their documents, statements and depositions with them. It's one of the best ways to make your opponent's case look good.'"

James W. McElhaney, June 2006 ABA Journal at 24. Professor McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law, and a frequent lecturer and writer on deposition and trial practice. His delightful monthly columns in the ABA Journal and Litigation magazine are entertaining and illuminating for both the novice and the experienced attorney.

Campbell on Coke:

"[H]is mind was never opened to the contemplations of philosophy; he had no genuine taste for elegant literature; and his disposition was selfish, overbearing, and arrogant. From his odious defects, justice has hardly been done to his merits. Shocked by his harrow-minded reasoning, disgusted by his utter contempt for method and for style in his compositions, and sympathizing with the individuals whom he insulted, we are apt to forget that 'without Sir Edward Coke the law by this time had been like a ship without ballast'". . . 

1 Campbell, Lives of the Chief Justices of England (Phila. 1851) at 208. Sir Edward Coke was a nasty piece of work in many ways -- zealous prosecutor of Sir Walter Raleigh (ultimately executed for treason), bitter enemy of Sir Francis Bacon, and, as indicated above, "selfish, overbearing, and arrogant" -- but he was also a bulwark of the Common Law against overbearing encroachments by the Queen. He vindicated the principle that royal proclamations in violation of the law are null and void. We could use his like in 21st Century America, where the executive branch seeks unchecked powers and many seem willing to grant them in the dubious trust that an unrestrained executive will result in greater safety.