f/k/a archives . . . real opinions & real haiku

September 30, 2007

more lawyers should “think like lawyers”

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 6:31 pm

Earlier this week, at Legal Blog Watch, Carolyn Elefant asked “Have You Learned to Think Like a Lawyer?.” She pointed to an upcoming law journal article with the title “Thinking Like a Lawyer: The Heuristics of Case Synthesis,” 40 Texas Tech Law Review (forthcoming 2007; 53-pp pdf.; abstract), by Jane K Gionfriddo, Boston College Law School Associate Professor of Legal Reasoning, Research & Writing. (And see, Law Librarian Blog & Future Lawyer) After noting that the current trend seems to be tilting the law school curriculum away from theoretical studies in favor of teaching “more practical skills,” Carolyn poses some important questions:

“Do you think law school teaches students to think too much like lawyers — or not enough? And is thinking like a lawyer a skill that some are born with — or one that can only be acquired through training and practice?”

For my money, there is no more practical skill than truly learning how to “think like a lawyer.” For me, thinking like a lawyer is a good and necessary thing for persons holding themselves out as lawyers, judges, and law professors. Indeed, far too many so-called legally-trained professionals do far too little thinking like a lawyer — as opposed to their sounding like they think a lawyer should, by employing various verbal tricks and affectations.

At a minimum, “thinking like a lawyer” should mean being able to:

  • recognize both the legal issues raised by a fact situation [“issue-spotting”] and the additional facts needed to offer a competent legal opinion on the matter
  • ascertain or discern which laws and judicial opinions are relevant in analyzing and solving a particular problem; and, as Prof. Gionfriddo explains, be able to properly “synthesize a series of cases.”
    • Also, know when you need to refer a matter to a lawyer with the expertise required to efficiently and competently handle a proffered or encountered matter
  • understand when and why an analogy is strong or weak
  • know when a factual distinction does or doesn’t make a legal difference, and be able to articulate why
  • recognize when factors other than the apparently applicable black-letter law or judicial precedent (e.g., equities, history, economics, social or political policy, etc.) need to be considered in deciding upon a course of action, giving advice to a client, or addressing a court, legislature or regulator.

If you closely listen to, or read, the discourse and legal argument of most law school graduates, it’s very difficult to conclude that they have had too much instruction in thinking like a lawyer or are using those skills excessively. Some readers might think this assertion is strange, coming from a haiku poet who is a “recovering” ex-lawyer, and who spent the last half of his legal career advocating the use of mediation over litigation. But, long-time visitors to this website shouldn’t be surprised. As I wrote in 2005, in “differences we can’t see,” when praising Adam Cohen’s New York Times op/ed column, “An SAT without analogies is like: (A) a confused citizenry,” March 13, 2005):

The most maddening and sad intellectual weakness I have seen in two years spent within the blogosphere has been the inability of so many young lawyers and law students to know when distinctions make a difference, and whether analogies are weak or strong. Thus, Adam Cohen’s op/ed piece in today’s NYT should be required reading for all educators and all who wish to fulfill the role of lawyer, pundit, politician or citizen competently.

Similarly, in “analogically correct” (April 12, 2005), I hailed publication of Harvard Law Professor Lloyd L. Weinreb‘s 2005 book Legal Reason: The Use of Analogy in Legal Argument (Cambridge Press 2005). In the face of arguments from heavy-hitters like Richard Posner, Edward Levi and Cass Sunstein against the use of analogical reasoning by judges and lawyers, Prof. Weinreb wrote Legal Reason to explain that the use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. I was pleased to say that the book “helps the reader learn how to separate the analogical chaff from the whole-grain variety (my lame comparison, not his).”

Cohen notes: “Intentionally misleading comparisons are becoming the dominant mode of public discourse. The ability to tell true analogies from false ones has never been more important.” I’m afraid, however, that either of two different-but-disturbing things are going on when we see misleading comparisons and faulty reasoning by lawyers and law students. They are:

  1. unaware of how poorly they reason and/or express their argument and reasoning; or
  2. they are in fact intentionally using misleading comparisons, because they believe that “thinking like a lawyer”(especially in our adversarial system) gives them license — or even an obligation — to do so

I’m afraid that every law student and graduate has faced the situation humorously mentioned by Future Lawyer Rick Georges: being chastised by a friend or loved one (and especially a spouse, significant other, or other romantic interest) for “thinking like a lawyer” in situations where doing so is purportedly inappropriate, irrelevant, or just plain annoying. Of course, the critics are often merely miffed over having their own faulty logic, missing elements, or weak arguments pointed out by their legally-trained companion. Admittedly, at times, the legal professional is indeed inserting an argumentative attitude into an inappropriate situation. But, more often, the problem is that the lay public is equating or mistaking “thinking like a lawyer” with thinking like a mediocre or incompetent lawyer, or a socially-or-morally-challenged one — one who is not aware that thinking like a lawyer does not mean forgetting or eschewing other human wisdom and virtues.

not grasping
the autumn evening…
the scarecrow

looks almost
like frogs hopping!
rain on the grass

………………………………… by Kobayashi Issa, translated by David G. Lanoue

A couple years ago, I ran across two thought-provoking law review articles with very different perspectives on legal thinking. The first isThinking Like A Lawyer: Second Thoughts,” 47 Mercer L. Rev. 511, by Univ. of West Virginia Law Prof. James R. Elkins. I’ve often referred to Jim Elkins at this weblog, because he is the lawyer-poetry maven behind Strangers to Us All, the website devoted to lawyers who write poetry, and editor of Legal Studies Forum, which has produced several volumes filled with lawyer poetry (including my own) (here, here and there). In his article, Jim Elkins says that “Law teachers advance ‘legal thinking’ by teaching their students that everyday thinking is inadequate and that images of law held by outsiders are naivé.” He warns:

Law teachers who seek to teach their students to “think like lawyers” should be honest with their students: legal thinking may not be a distinctive form of thought, and to the extent that it is a distinctive way of thinking, it may be a dangerous one. Law teachers who teach “legal thinking” should warn their students of the known hazards of legalistic thinking. When law teachers fail to warn their students about the questionable nature, limits, and dangers of “legal thinking,” they lead them astray.

The second article was written in response to Jim Elkins’s; it is “Uneasy Burden: What it Really Means to Learn to Think like a Lawyer,” 47 Mercer L. Rev. 543, by Peter R. Teachout, Professor of Law, Vermont Law School (Note: Prof. Teachout’s wife, Vermont Superior Court Judge Mary Teachout, was a favorite friend of mine three decades ago in law school, but I have never met Peter.) Prof. Teachout starts his article with two quotes:

If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer].

………………. Thomas Reed Powell

It imposes the uneasy burden and occasional joy of a complex double vision, a fluid, ambivalent response to men and events which represents, at its finest, a profoundly civilized adjustment to the cost of being human in this modern world.

………………………. Ralph Ellison

To my surprise, this aspiring haiku poet found himself nodding in agreement when reading Peter Teachout’s rebuttal to the Elkins article. Here are some excerpts that capture the essence of his argument, with which I agree, and which (along with Jim’s) deserves a full reading [emphases added]:

“Reduced to its essence, Elkins’ indictment of traditional legal education rests upon two core, Pirsig inspired [from Zen and the Art of Motorcycle Maintenance], claims. First, that legal education is morally incapacitating because it teaches us to keep radically separate that which is moral from that which is legal and, furthermore, to be concerned only with that which is legal. Second, that legal education is destructive of the self because it teaches us to deny every aspect of our response to experience except that which is purely and technically legal. Learning to think like a lawyer, under this view, is doubly disabling: not only does it prevent us from seeing and dealing intelligently with moral issues, it renders us incapable of responding to experience as human beings. But are these claims valid? Are these in fact the necessary consequences of “learning to think like a lawyer”? Is Elkins’ indictment, in short, a fair one?

“My own view, which I elaborate below, is that, carried along by Pirsig’s influence, Elkins ends up getting things exactly backwards. I know that there are radical positivists who insist that law ought to be kept entirely separate from morality, and I also know that there are bad law teachers — there are “Professor Lawsons” out there — and to that extent Elkins has a point. But the mainstream tradition of legal education in this country, it seems to me, has always emphasized the key role played by morality in the development and understanding of the law; it has always taught that we proceed at our hazard if we ignore the close and intimate interrelationship between the two. Indeed, I would go beyond mere rebuttal. Not only is a legal education not morally incapacitating as Elkins claims; if anything, I would argue, it offers those who take it seriously a more complex understanding of the moral dimensions of experience.”

“As Plato’s performance in the Gorgias demonstrates, as does [Justice Robert] Jackson’s performance [as the Chief United States Prosecutor] at Nuremberg, there is no inherent inconsistency between being thoughtful, focused, and self-critical on the one hand, and being poetic and caring and human on the other. Making connections between the imagination and the critical judgment, between the heart and the head, between feeling and thinking, may not always be easy, but that is not to say that such connections cannot be made.

“So the problem in the final analysis is not losing one’s poetic capacity, but finding ways to make connections between what one knows specially as a lawyer and everything else that one knows. This brings us, I think, to the core problem: It is not that the connections cannot be made, it is that they are not always easy to make. Indeed, there often exists a tension between how we see the world as lawyers and how we see it in our other capacities, which means that making connections– certainly, making them in a fresh and original way–often requires a considerable art.”

Do we need more and better “thinking like a lawyer” within the legal profession and at our law schools? If the term is understood the way Peter Teachout describes it, we surely do. [find more excerpts from the Teachout article below the fold, by clicking on the more link] As I said at the beginning of this piece, there is no more practical skill for a lawyer to possess than truly learning how to “think like a lawyer.” It is the core skill, the foundation, upon and around which all the other “practical skills” must be built. It is the skill that truly adds value to a problem presented by a client, and that is most likely to lead to viable, “winning” solutions. So, I may still get a bit annoyed when someone says that I “look like a lawyer.” But, I am proud to agree when I’m told “you think like a lawyer” — although I’m very likely to add, “like a good lawyer.”

[cover detail] Legal Reason: The Use of Analogy in Legal Argument , by Lloyd L. Weinreb (Cambridge Press 2005; cover design James F. Brisson)

p.s. Carolyn Elefant asked “is thinking like a lawyer a skill that some are born with — or one that can only be acquired through training and practice?” As often happens, Carolyn might be a bit more optimistic than I. It seems to me that some people are indeed born, or at least enter law school, already capable of “thinking like a lawyer” reasonably well, and able to improve even more with training and practice; that many of those who do not yet have the skill can, with competent training and diligent practice, become quite good by the time they graduate from law school or soon thereafter; but that there is a not-insignificant number of law students and graduates who apparently will simply never be able to competently think like a lawyer. Bar exams should be aimed at finding and filtering such poor thinkers out of the profession.

scarecrowHaikuN from The Scare Crow: A Collection of Haiku & Senryu (Leroy Kanterman, Ed., Hiroake Sato, translator, Red Moon Press, 1999):

a cricket
lending the scarecrow
a voice

……………………………………… by John Stevenson

seeding time
the farmer dresses the same
as the scarecrow

…………………………………….. by jim kacian

the scarecrow
moving backwards —
autumn rain

…………………………….. by gary hotham scare crow cover

in the west
battling like ancients monks

even the servant
poses like a saint…
new summer robe

………………………………… by Kobayashi Issa, translated by David G. Lanoue


they point out
the differences –
identical twins

……………………………….. by dagosan [March 23, 2005]

two voices that sound alike
make their way…
clouds of blossoms

like the humans
a monkey too
curled up for siesta

my shadow looks
like the Old Man’s!
first winter rain

cursing like sailors
at the plum tree…

autumn wind–
like the teeth of a comb
pilgrims from the north

like people scarecrowHaikuN
an upright scarecrow
can’t be found

like he just now
spotted a star…
croaking frog

in winter wind
they don’t seem like women…
around the fire

night after night
like pillows…
the autumn mountains

………………………………… by Kobayashi Issa, translated by David G. Lanoue

……. ….. Below the fold, you will find additional quotations from Prof. Peter Teachout’s article, including his explanation of the “sentimental fallacy.”



September 28, 2007

NY lawsuit challenges Albany County sex offender restrictions

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 11:30 am

ExitSignArrow A lawsuit was filed yesterday by the well-respected Albany, NY, lawyers Terry Kindlon and Kathy Manley, of Kindlon Shanks & Associates, challenging the sex offender residency restrictions imposed by Albany County — which prohibits Level 2 and Level 3 sex offenders from living within 1000 feet of schools and child care facilities. The plaintiff, who is seeking to file as an anonymous “John Doe”, is a Level 3 sex offender, who has had one sex offense (against a 14-year-old girl) 22 years ago, and has numerous special health care needs. He was contacted by Albany police and told he had one week to move from his current residence. Click for a combined 36-page pdf file of the Complaint & Affirmation (or Word versions of the Complaint and the Affirmation) in John Doe v. Albany County (Supreme Court for Albany, County, NY, filed Sept. 27, 2007).

update (Sept. 29, 2007): The Schenectady Gazette quotes attorney Kindlon that the Albany County Legislature created an “irrational situation and was not equipped or authorized to create a law like this.” NYCLU’s Melanie Trimble notes the case will “set a local precedent, even though the court is deciding for Albany County,” and adds “We need to protect those individuals who face serious adversity with these residency restrictions.”   “Suit challenges sex offender law: Lawyer, NYCLU hoping to set precedent,” B1, Sept. 29, 2007, reprinted)

Here is how Kathy Manley described the facts earlier this week, in an informal email on September 25th:

He is a Level 3 but has only ever been convicted of one sex offense (against a 14 year old girl) and his crime was 22 years ago. He has a lot of health problems and needs a phone line (so he can call in his blood pressure reading everyday) and a refrigerator (to keep his insulin – he has to give himself injections 3 times a day.)

He was living in Albany for 4 1/2 years with no problems when his building was sold and everyone was evicted last May. He’s on parole for 3 more years from his 1985 conviction and his old parole officer found him an apartment, where he’s been since May. But last month the police told him he had to leave by next week. . . . This man has given the police over 30 different addresses to check and they have told him that every one of them is in the excluded zone. They told him to try a couple areas of the city where there is no housing available to him. So he has been trying to do everything right, but has run out of options.

If they put him in a motel he probably won’t have the fridge and telephone he needs for his medical conditions. We tried to work it out with the DA’s Office but I was told today that no exceptions would be made.

Along with f/k/a‘s Editor, Kindlon and Manley had signed the New York Civil Liberties Union’s letter to Schenectady County in August, opposing that County’s tougher restrictions. (See our prior post.) The NYCLU letter stressed that the residency restrictions were unlawful as punitive ex post facto laws, and because the field has been preempted by state law and policy. Terry Kindlon expects to be in Albany County Supreme Court on Tuesday, October 2, seeking a preliminary injuction and Temporary Restraining Order.

autumn wind —
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta exitSignN

eviction notice —
a moth ricochets
in the lampshade

. ……………. by Alice FramptonThe Heron’s Nest (March 2004)

autumn evening —
yellow leaves cover
the plot reserved for me

Stillness of sand erasingS
in the hourglass bottom–
the sound of wind

Autumn cold; curtained window
of the fortuneteller
softly glowing

…………………… by Rebecca Lilly
“Autumn evening” — Shadwell Hills; Modern Haiku XXX:2, and A New Resonance 2
“Stillness of sand” – Acorn #18 (2007)
“autumn cold” – Shadwell Hills (Birch Prees Press, 2002)

September 27, 2007

obama promises strong antitrust enforcement

Filed under: lawyer news or ethics — David Giacalone @ 10:54 pm

The non-profit, nonpartisan American Antitrust Institute posted a two-page Statement of Senator Barack Obama on antitrust law and policy, at its website tonight (September 27, 2007). In his Statement, Obama promised that “As president, I will direct my administration to reinvigorate antitrust enforcement . . . so that all Americans benefit from a growing and healthy competitive freemarket economy.”

AAI had invited “all the presidential campaigns (except Fred Thompson, who wasn’t in the race when we wrote) to submit their candidates’ views on antitrust.” Although only Senator Barack Obama responded within AAI’s time frame, the organization (which does not endorse candidates), says it “will be pleased to publish any additional candidate statements.”

Sen. Obama stated that “Antitrust is the American way to make capitalism work for consumers. Unlike some forms of government regulation, it ensures that firms can reap the rewards of doing a better job. Most fundamentally, it insists that customers—not government bureaucrats, and not monopoly CEOs—are the judges of what best serves their needs.” After noting that America has been a longtime leader in antitrust,” with more than a century of “broad bipartisan support for vigorous antitrust enforcement, to protect competition and to foster innovation and economic growth,” the Senator charged that “Regrettably, the current administration has what may be the weakest record of antitrust enforcement of any administration in the last half century.”

Here are other points made in Sen. Obama’s Statement:  (more…)

how we treat “those people”

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 1:53 pm

QkeyNs sKeyNs A number of recent news items are simply too important to ignore. Our quickie treatment is related to the f/k/a Gang’s energy level, and not the importance of the issues, which include the treatment of immigrants, sex offenders, Iraqi war refugees, and the Jena Six:

  • The New York Times reported that “Towns Rethink Laws Against Illegal Immigrants” (Sept. 26, 2007), in an article that focuses on Riverside, NJ, which enacted legislation a year ago “penalizing anyone who employed or rented to an illegal immigrant.” As a result, “Within months, hundreds, if not thousands, of recent immigrants from Brazil and other Latin American countries had fled,” but

    “With the departure of so many people, the local economy suffered. Hair salons, restaurants and corner shops that catered to the immigrants saw business plummet; several closed. Once-boarded-up storefronts downtown were boarded up again.

    “Meanwhile, the town was hit with two lawsuits challenging the law. Legal bills began to pile up, straining the town’s already tight budget. Suddenly, many people — including some who originally favored the law — started having second thoughts.”

  • In what Robert Ambrogi calls a “blawgosphere coup,” the ImmigrationProf Blog has posted an “Exclusive Interview with Sen. Barack Obama” on the issue of immigration (Sept. 25, 2007). There are some interesting, mostly partisan, comments at the weblog. As part of his response (5 pp, pdf) to the proffered questions,
    Obama had this to say about Local Immigration Ordinances:

    I understand the frustration at the local level with the federal government’s failure to manage immigration. But managing immigration is a federal responsibility. These laws tend to lead to unintentional discrimination against Latinos and turn regular people into immigration enforcement officials. This is a national problem and it requires a national solution.

    The anti-immigrant law passed by Mayor Barletta [in Hazelton, PA] was unconstitutional and unworkable [and struck down last July by a federal district court in Lozano v. Hazelton] – and it underscores the need for comprehensive immigration reform so local communities do not continue to take matters into their own hands. We cannot put this off any longer. The ongoing problems with our immigration system are dividing our country, and distracting us from the work we need to do in other important areas such as health care, education, and jobs. We need to act urgently to create an immigration system that secures our borders and enforces our laws, reflects our best traditions as a nation of immigrants, and upholds the values and ideals that all Americans cherish. I have been fighting for that kind of system for several years now, and I will continue fighting for that kind of system until we pass comprehensive immigration reform once and for all.

a day without a mexican,” 2004 (discussed ad agitam in this post)

small town
my accent starts
a conversation

…………………. by Yu Changfrogpond XXIX: 1 (2006)

  • Roger Cohen’s op/ed column at NYT asks “Refugees? What Refugees?” (Sept. 27, 2007) and tells of Sweden’s efforts to help Iraqi War refugees. Cohen notes “Of all the Iraq war scandals, America’s failure to do more for refugees, including thousands who put their lives at risk for the U.S., stands out for its moral bankruptcy. Last time I checked, Sweden did not invade Iraq. Its generosity shames President Bush’s fear-infused nation.”

a long trip
the final flip
of the map

behind barbed wire
the banter of baseball
in two languages

………………………………. by jim kacian
“a long trip” – frogpond XXIX: 2 (2006)

  • The Supreme Judicial Court of Maine handed down a decision this week relating to Sex Offender Registries that could have a major impact on sex offender laws, with its focus on their potentially significant punitive effects. See John Doe v. District Attorney (2007 ME 139, decided Sept. 25, 2007, 39-pp, pdf.). In “Registry for sex crimes on trial” (Sept. 26, 2007), the Bangor Daily News has a good summary of the facts and issues raised. Here are some major excerpts:

    Maine’s sex offender law could be unconstitutional because it retroactively increases criminal punishments for people who already have completed their sentences for sex crimes, the state supreme court said Tuesday.

    The decision, a setback for the sex offender registry, comes less than two years after a 20-year-old Canadian man killed two sex offenders in Maine after randomly getting their names from the state’s online sex offender registry.

    But in a 39-page ruling, supreme court justices ordered that the complaint be sent back to the lower court for further proceedings.

      The majority opinion, agreed to by seven of the nine justices, stated that Doe should be given a chance to prove that the sex offender law is punitive. . . .

    “Doe should be given the opportunity to develop the record and to prove, if he can, the excessiveness of [the law] in relationship to its stated goal of protecting the public from potentially dangerous registrants,” they wrote.

    A concurring opinion, written by Justices Donald Alexander and Warren Silver, was stronger in its wording.

    Alexander and Silver wrote that amendments to the law over the years have retroactively enhanced criminal punishments by changing a 15-year registration requirement to lifetime state supervision and removing the opportunity for waiving the registration requirement upon a showing of rehabilitation or other good cause.

    They further wrote that the law exposes registrants to punishments “similar to the shaming and ridicule penalties of colonial times by identifying and targeting them on the Internet, subjecting them to the documented risk of retribution and vigilante violence.”

    Furthermore, they wrote, the Maine Constitution’s Declaration of Rights protects the right of “pursuing and obtaining safety and happiness.”

    “For lifetime registrants, the [sex offender law] takes away that possibility and the prospect of redemption,” they wrote.

    • At his Sex Crimes weblog, Prof. Corey Rayburn Yung, “Registration Decision in Maine,” explains the potential significance of the case, noting that it “forces lower courts to confront the real-world effects of registration and notification. This has often been the poorest portion of previous rulings about registration laws as judges have tried to separate secondary effects from their opinions.”

an old song
in our second language
starry night

cemetery road
the chain gang
breaks for lunch

……………………….. by Peggy Lyles
“an old song” To Hear the Rain (Brooks Books, 2002)
“cemetery road” – Modern Haiku 37:3 (Autumn 2006)

  • Justice in Jena? I found yesterday NYT op/ed piece by Reed Walters, the district attorney of LaSalle Parish, to be thoughtful, respectful of those who disagree, and quite persuasive.
    It deserves to be read in full. Walters states, among other things:

    “I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people.

    “But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.

    “Similarly, the United States attorney for the Western District of Louisiana, who is African-American, found no federal law against what was done.”

    There is far too much racism in the United States, and it often shows up in our criminal justice system. But, I am not convinced that the Jena Six have been the victims of racial bias. Some have pointed to the fact that the teen who had been attacked by the Six went to a prom the same night, suggesting that it could not have been a serious attack. [Of course, you don’t have to seriously injure someone to be guilty of attempted murder (shooting a gun and missing is a prime example) — using force that is likely to be deadly suffices. Although, I agree that “attempted murder” may have been overcharging, I believe it was done to bring the 16-year-old ringleader into adult court, not because he was black.] Here’s Walters’ description of the attack, which he says was no “schoolboy fight:”

    “The victim in this crime, who has been all but forgotten amid the focus on the defendants, was a young man named Justin Barker, who was not involved in the nooses incident three months earlier. According to all the credible evidence I am aware of, after lunch, he walked to his next class. As he passed through the gymnasium door to the outside, he was blindsided and knocked unconscious by a vicious blow to the head thrown by Mychal Bell. While lying on the ground unaware of what was happening to him, he was brutally kicked by at least six people.

    “. . . Only the intervention of an uninvolved student protected Mr. Barker from severe injury or death. There was serious bodily harm inflicted with a dangerous weapon — the definition of aggravated second-degree battery. Mr. Bell’s conviction on that charge as an adult has been overturned, but I considered adult status appropriate because of his role as the instigator of the attack, the seriousness of the charge and his prior criminal record.”

  • For an interesting article on racial bigotry, see “Why Few People Are Devoid Of Racial Bias” (Science Daily, Sept. 26, 2007, from a report Psychological Science, a journal of the Association for Psychological Science) In it, “The authors investigate how some individuals are able to avoid prejudicial biases despite the pervasive human tendency to favor one’s own group.” The articles says: What is remarkable about the findings is that only seven percent did not show any racial bias (as measured by implicit and explicit psychological tests), and that nonbiased individuals differed from biased individuals in a psychologically fundamental way — they were less likely to form negative affective associations in general.

mops and pails–
the wren goes on singing
with straw in its beak

grey Atlantic
a pelican crosses
the rainbow

in the dream
they called me “brother”–
pounding rain

………………………………………………… by Peggy Lyles
“mops and pails–” – Frogpond XXVIII:2 (Spring/Summer 2005)
“grey Atlantic” – Mainichi Daily News (July 2007)
“in the dream” –The Poetic Image, Birmingham Words Pamplet #1 (May 2006)

Must be Magic: Finally, like other members of the Clear Channel chain, the Albany NY talk-news radio station, 810WGY.com, is offering a sneak preview of Bruce Springsteen’s “Magic” album, which is scheduled to be released on October 2, 2007, as he launches the US/Europe Magic Tour. (pre-order “Magic” here)

missing in action
she dusts off his guitar,
returns it to the shelf

……………………… by Randy Brooks

old rocker —
gray ponytail
keeps the beat

…………………. by dagosan

missing in action
she dusts off his guitar,
returns it to the shelf

……………………… by Randy Brooks

turning off the music
a few miles before
getting there

on the way
to hear the music…

…………………. by Tom Clausen
from being there (Swamp Press, 2005)

September 26, 2007

in case you’re missing tonight’s Harvest Moon

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 1:33 pm

not only waiting
for the harvest moon to rise…

harvest moon–
in pampas grass shadows
drinking sake

harvest moon
on the mountain scarecrow’s

“Gimme that harvest moon!”
cries the crying

………………………………… by Kobayashi Issa, translated by David G. Lanoue

Special thanks for the Harvest Moon image to Don Weeks of the Schenectady, NY, radio station 810 WGY, who didn’t want nature’s failure to cooperate to deprive his listeners of their Harvest Moon. Don has been the Capital Region’s favorite wake-up broadcaster for many years — and, he’s not even gross or angry! (He is witty and insightful, though, and willing to by silly.)

I’ll be out under our rainy clouds this evening going to my first class as a student in many years — Spanish for Beginners, taught by Mildred Chang for the Schenectady public school district’s adult/continuing education program. You are all duly deputized by Mama G. to nag me about doing my homework.

For more Harvest Moon haiku, go to our postings from prior years

  1. this moon’s for you!
  2. more harvest moon haiku
  3. don’t forget to look up
  4. moon cakes, harvest moons & more

And find dozens more at David G. Lanoue’s Haiku of Kobayshi Issa website.

Moon lanterns at Beijing’s Lugou Bridge [larger, in color, from WashPost, by China Photos/Getty Images]

Afterthought: It looks like dagosan is not the only person who thinks traditional Chinese moon cakes are less than a total taste treat. See “In China, a Moon Cake Makeover: For Mid-Autumn Festival, Bakers Replace Traditional Fillings With Trendier Fare,” Washington Post, Sept. 26, 2007 (hat tip to Roberta Beary). As the WaPo Article explains:

“[J]ust off Peace Avenue in a neighborhood cluttered with Western chain stores, employees at an ice cream shop were busy packaging hundreds of red boxes of moon cakes filled with green tea ice cream and Belgian chocolate ice cream. In the fancy shops of upscale hotels and the stores of the Beijing pastry chain Wei Duo Mei, moon cakes filled with abalone, dried scallops, pineapple, New Zealand cheese and Japanese coffee were flying off the shelves, at prices of up to $39 for a box of eight.

“As millions of Chinese buy and exchange moon cakes this week as part of a business networking ritual, companies are inventing a growing number of nontraditional pastries to try to keep young people interested in the traditional holiday.”

harvest moon party –
the hostess stares and stares
at the cloud cover

………………………………………… by dagosan

update (Sept. 27, 2007): With a little persistence, I did get to see the Harvest Moon last night in all its glory in the real world sky over Schenectady. Although it was covered by clouds at 7 PM and 8 PM, the clouds cleared in just the right spot around 9 PM, and the Harvest Moon appeared in the window above my computer, luring me back outside. Shortly thereafter, a slight haze covered the moon, creating another beautiful image. Now, if only I knew a haiku poet who could record the moment for me.

update (Oct. 1, 2007):   Verlyn Klinkenborg has an intriguing op/ed piece in today’s New York Times, called
Watching the Full Moon Rise Over the Northeast Corridor” (October 1, 2007) .   She notes, while describing viewing the moon from a fast passenger train, that “Something about the moon brings to life one metaphor after another.”  And continues:

“For at one point, just as darkness was really taking hold, I let myself say — and it was a cliché, of course—that this moon was as ripe as a tropical fruit. And yet it really was exactly the color of the flesh of a tropical fruit I had bought the night before. The fruit was called a mamey sapote, which comes from Central and South America. Unpeeled, it looks like an oversized and perfectly oval potato. But under the rind is a deep mahogany seed and the mildly sweet flesh of a ripe September moon, which is slightly aphrodisiacal they say.

“Not only was the moon that night the color of the pulp of a softening mamey. It also wore the same open-mouthed expression as the woman behind the cash register when she realized that the mamey she was ringing up on Broadway cost some 500 times more than it did in the markets at home in Ecuador.”

The piece ends: “But soon it rose into some new analogy, some new association, and by then I had fallen asleep.”

bar admission: kinky discipline and a new dvd

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:33 am
  • update (Sept. 27, 2007): Nobody in the blawgisphere covers spanking by the bench and bar like David Lat at Above the Law. Today, he continues his coverage of the Spanking Judge, Herman Thomas of Mobile County, Alabama, including links to a couple of songs about the good judge — “Hand me the Paddle” and “Spank Me” — by former paralegal Jolene Roxbury. Judge Thomas is alleged to have “periodically removed prisoners from Mobile County Metro Jail and spanked them in a room at the courthouse.” You can get the details from Lat, with links to Mainstream Media sources.
    • blue heron
      all paddles
      at rest
    • autumn colors
      we paddle closer
      to the mountain

    ……………………………………………………….. by Yu Chang . .
    “blue heron” – Shiki Haikusphere 10th Anniversary Anthology (2007)
    “autumn colors” – Frogpond (Winter 2007)

Is the Ex-Spanker-Ex-Priest Fit to be a Lawyer? Way back in 2004, ethicalEsq spent some time wondering about the possible effects of bankruptcy and substance abuse on a law student’s admission to the Bar, and got spanked by some testy and touchy recent law grads. ( See this post, where I coined the aphorism “sometimes, silence isn’t golden, it’s yellow“). A decision by the Iowa Supreme Court last week (via Mike Frisch at the Legal Profession Blog), raised a different issue concerning the character/fitness requirement for becoming a lawyer:

Does conduct that took place 17 years or more ago, on trips with teen-agers, such as “[bare-bottom] spankings, tickling, push-ups and sit-ups as disciplinary techniques” (and finagling neck and foot massages out of teen-agers under his supervision), which might be considered child sexual abuse today, and resulted in the expulsion from the Catholic priesthood many years later, but not criminal conviction, disqualify the bar applicant from taking the bar exam on the basis of inappropriate character? In Iowa (with similar requirements in all states), “Those who apply for admission to the bar must demonstrate their honesty, integrity, and trustworthiness. . . . because attorneys are put in a position of considerable influence over their clients, whose trust in them must remain inviolate.”

Iowa’s Bar Examiners concluded that the abuses of parishioners’ trust “were so serious that Nash remains unfit to practice law notwithstanding his completion of a treatment program, his many subsequent years of appropriate priest-parishioner trust relationships, and his apology to those harmed by his earlier actions.”

In the Matter of MICHAEL PATRICK NASH, (Supt. Ct. Iowa, No. 102 / 07-0286, September 21, 2007; 51-page decision, pdf., including a dissent) Mr Nash was granted permission to take the State bar examination, after the Court disagreed with the State Board of Bar Examiners, and concluded that Nash had “satisfied his burden to demonstrate his good moral character and fitness to practice law.” The Court stated:

“While we certainly do not condone Nash’s disciplinary techniques, we do not believe such non-criminal acts from seventeen (or more) years ago reflect poorly on his present moral character and fitness to practice law. Nash utilized the techniques when he was a relatively young and inexperienced priest dealing with misbehaving teenagers in remote logging camps of southeast Alaska in the 1980s. While those methods of discipline would certainly be considered inappropriate by today’s standards, when viewed in the social and historical context in which they were applied, they appear significantly less sinister.”

Mr. Nash has consistently denied that there was any sexual context to the discipline or massages (admittedly, it is difficult for me to find that assertion credible). However, he did admit that such conduct might indeed be deemed child sexual abuse in 2007. Based on that fact, and failure to submit to extensive observation and evaluation, one justice dissented.

me in one hand
a belt in the other
dad sings a lullaby

…………………….. by roberta beary -from Taboo Haiku

I’m not sure how I would have voted. For the past few months (starting here), I’ve been writing about sex offender residency restrictions. Very few people want a sex offender living next door (or even a thousand feet away), even when the crime happened many years ago and the offender has led an admirable life ever since. I imagine that many members of the public would also shy away from hiring a lawyer who was an ex-priest defrocked for kinky discipline procedures with adolescents — but that really isn’t the proper test. Although I am strongly against imposing residency restrictions on sex offenders, I do believe that violations of professional trust in a law graduate’s past need to be given close scrutiny. Here is more of the Iowa Supreme Court’s reasoning in its Nash decision:

“We believe Nash’s conduct over the past seventeen years is the best indicator of his present moral character and fitness to practice law. While passage of time between an act of misconduct and submission of an application for admission to the bar alone will usually not be sufficient evidence of present good moral character, see In re King, 136 P.3d 878, 885 (Ariz. 2006), we are convinced Nash came to understand certain disciplinary techniques crossed appropriate pastoral boundaries. Following his treatment experience, Nash voluntarily avoided one-on-one interactions with parish children to avoid the appearance of impropriety. In 2006, as soon as the Catholic Church allowed him to speak with anyone involved in its investigation, Nash issued a written apology to the children whom he had improperly disciplined. He has earned and maintained the support, admiration, and trust of nearly eighty individuals who testified and wrote letters supporting his admission to the bar.”

The priest-parishioner relationship, especially with children, is certainly even more “sacred” than the lawyer-client relationship. Violations committed while a priest are quite telling when asking whether a person can be trusted to properly treat and protect a client. On the other hand, 17 years of good conduct and respected positions certainly do mean something. I’d like to hear your thoughts, and any additional questions or procedures you would require Mr. Nash to face prior to being granted admission to the Bar.

Another case handled the same day by the Iowa Supreme Court was a lot easier. In Disciplinary Board v. Blazek ( No. 107 / 07-0507, September 21, 2007), Michael Blazek had been convicted of: (1) attempted enticement of a minor for sex, (2) traveling in interstate commerce to engage in sex with a minor, (3) receipt of visual depictions of minors engaging in sexually explicit conduct, and (4) possession of visual depictions of minors engaging in sexually explicit conduct. He clearly deserved to be disbarred. What surprised me was learning that Blazek had pled guilty in 1997 to “a felony charge of knowingly engaging in sexual contact with a child under twelve.” That incident “stemmed from a family reunion on a cruise ship where Blazek sexually assaulted his eleven-year-old nephew by fondling the boy’s bare buttocks and genitals.” Remarkably, in 1997, the Court had merely “suspended Blazek’s law license indefinitely with no possibility of reinstatement for two years.” Thirty months later, he was allowed to resume practicing law. They sure were a lot more lenient in Iowa than I would have been with the first-time sex offender Blazek.

A Movie, Not Just a Joke: “A Lawyer Walks Into a Bar . . . “ I haven’t yet seen the documentary A Lawyer Walks Into a Bar . . . , but I want to, after hearing about it from the likes of weblawyer Robert Ambrogi [at both his Lawsites weblog (Sept. 21, 2007) and LegalBlogWatch (Feb. 22, 2007)] and the anonymously-omnipresent Blawg Review Editor. Bob told us over the weekend that A Lawyer Walks Into A Bar, which is directed by Eric Chaikin (who gave us the entertaining 2005 film “Word Wars – Tiles and Tribulations on the Scrabble Game Circuit“) is now available on dvd (e.g., at Amazon.com). Here’s a summary of the New York Times review:

Writer-director Eric Chaikin’s feature-length documentary A Lawyer Walks Into A Bar. . . offers a witty, seriocomic look at myriad aspects of the American legal process and judicial system. It hones in on six individuals, all prospective attorneys at the time of the film’s production, and follows them through trials and travails as they approach and take the formidable bar. Chaikin then uses the subjects’ stories as springboards to broader digressions on U.S. litigation. The film features a myriad of celebrity guest appearances, from both well-respected attorneys and entertainers. Participants include: attorneys Alan Dershowitz, Mark Lanier and Joe Jamail; comics Eddie Griffin and Michael Ian Black; TV commentators John Stossel and Nancy Grace, and many others.

Click for the trailer and select clips, a synopsis of the film, a glimpse of the six bar applicants, and the related weblog. I’d like to see non-lawyer Chaikin’s perspective on the legal system, lawyers and the bar examination process. And, whether out of empathy or schadenfreude, I’m curious about the exam travails of the six main characters (four of whom are women). It’s been 31 years since I took the District of Columbia bar exam and was waiting for the results. Despite telling myself that I’d never be in the bottom 40 percent of any group taking any test, it was a stress-inducing process. On the other hand, I expect the experience of watching A Lawyer Walks Into A Bar to be enjoyable and cathartic. Naturally, I’ll tell you its grade after I see it. And, I’m going to ask my public library to purchase a few copies.

Like atheists in fox holes, a lot of rather non-religious law students seem to turn to the heavens for assistance when taking the bar exam. Although I’m not a believer in divine intervention (for baseball batters, Emmy nominees, or test takers), I tried to help the prayer-inclined back in 2005, with my post “wanted a law school exam prayer.” You might want to check it out (no guarantee of results, of course).

even the pigeon
says a prayer

……………… by Kobayashi Issa, translated by David G. Lanoue

silent prayer–
the quiet humming
of the ceiling fan

…………………….. by Lee Gurga – – Fresh Scent

long winter –
prayer bundles sway
in the cedars
…………………….. by Billie Wilson

Speaking of Spanking (and silly geese, but not bar admissions): Yesterday’s Overlawyered.com Roundup (Sept. 25, 2007) pointed to the farmer who filed a lawsuit over the use of his picture, with a goose, on an irreverent greetings card. Click to see the cover of the card from Roanoke.com and read the story. The card’s message: “Since it’s your birthday, you decide — Would you rather get spanked . . . [inside the card] or goosed.”

According ot the Roanoke Times, “In Virginia, using an image for advertising or trade requires a signed release.” The issue is whether poultry farmer Andrew Marsinko gave permission for the taking and use of the photo, which was snapped at the 1996 State Fair of Virginia, by Washington, D.C., photographer John Burwell, who had been hired to take promotional photos for the fair. Marsinko is seeking $7.5 million in damages from Burwell and the companies that used the image. [Walter Olsen has collected other links to lawsuits brought by unwilling photographees, here.]

I have no legal insights into Marsinko’s case or the policy issues. Nonetheless, I’ve been rather goose-silly lately over at the MagnaPoets Japanese Form group weblog. See there and here for poems, and here for the prose-with-poem haibun “bad for the gander.” Here are just a few of the resulting haiku:

the power boat’s wake —
a pair of ducks
gets goosed

– goslings goose gander
glide under the bridge

honking out my window –
geese above
cabbie below

…………………………… by david giacalone, a/k/a dagosan

September 25, 2007

reminders: moon cakes, harvest moon, lawyer poets & more

Filed under: Haiga or Haibun,Haiku or Senryu,q.s. quickies — David Giacalone @ 2:22 pm

A few friendly, helpful, inspiring reminders from the f/k/a Gang (penned while procrastinating over a more substantive posting):

ChinaMoonN As we wrote a week ago: The Chinese Mid-Autumn Festival, during which families traditionally get together and eat moon cakes, is celebrated and concluded tonight.

cutting the moon cake
just like my mother
Mid Autumn Festival

………………………………… by yu chang Upstate Dim Sum 2002/I

The Harvest Moon will arrive in all its glory tomorrow night, September 26, 2007. The moon has been especially bright and beautiful here in Upstate New York all this week. Sadly, cloud covering will probably block our view of the Harvest Moon tomorrow. So, the f/k/a Gang will be out pre-Mooning over the Harvest Moon this evening.

.. … We have accumulated Harvest Moon lore and scores of Harvest Moon haiku over the past few years. To find them, go to

  1. this moon’s for you!
  2. more harvest moon haiku
  3. don’t forget to look up

his frail hands
the last harvest

of the harvest moon
the barn door open

harvest moon
a spider farms
the wall ivy

…………………………………………………… by Laryalee Fraser full moon neg
“harvest moon/spider”- Haiku Harvest (fall/winter/05)
“sway” Roadrunner Haiku Journal (Nov. 2006 Issue VI:4)
“his frail hands” – Simply Haiku (autumn 2004)

(large) In “Poetic Justice: Another Verse,” Bob Ambrogi told us yesterday at LegalBlogWatch (Sept. 24, 2007) , that “poetry is sweeping the profession.” Frankly, it looks more like bad doggerel and parody verse is sweeping the profession. However, this is a great chance to remind you that you can read thousands of real poems by real lawyer-poets online at the fabulous Law in Popular Culture Collection at the Tarlton Law Library of the University of Texas (Austin).

Over the past few years, we’ve told you (here, here and there) about three gigantic collections of lawyer poetry published by Law Prof. Jim Elkins, at West Virginia Law School, in the Legal Studies Forum (also see his online website about lawyer-poets, Strangers to Us All). The Tarlton Library has reproduced each of the LSF poetry volumes online — well over a thousand pages of text — and you can find them here:

Now forget billable hours for awhile, and commune with your Muse (and bookmark the pages).

The Unworn Necklace, Roberta Beary‘s first collected volume of haiku and senryu is finally available. (Snapshot Press, August 2007, order form) We first told you about the upcoming book, and posted five poems from it, when Robert’s manuscript won 1st Prize in the Snapshot Press Haiku Competition for 2006. A copy just arrived directly from the author yesterday (many thanks, RB!), so you can bet that we’ll soon have much more to say, once the entire 69-poem collection is savored and digested by the entire f/k/a Gang. Meanwhile, here are two poems honoring the current change of season and celestial show:

another summer over
red dahlias
fill a vase

harvest moon
the long pull
of faraway children

necklaceG ………………… by Roberta Beary from The Unworn Necklace (Snapshots Press, 2007; order)
“harvest moon” – The Heron’s Nest (Special Mention, 2006 Readers’ Choice Awards)

Some of you seem to have missed (judging from the sad dearth of click-throughs) this blurb from our recent post about the 2007 Annual Meeting of the Haiku Society of America:

Just Fell Off the Haiga Truck” (Sept. 14, 2007) To celebrate my attendance at the 2007 HSA Annual Meeting, I’ve mocked up a little two-sided, one-page, trifold brochure called “Just Fell Off the Haiga Truck.” It is filled with haiku and senryu that I originally wrote for haiga created using my brother Arthur’s photography (and occasionally Mama G’s). The hope is that the poems will stand up on their own, as good haiga poetry should. The brochure can be printed out if you click on the link above. It contains thumbnail images and hyperlinks to more than a dozen haiga.

haiku party . . .
I’ll cut
and you choose

……………………………. dagosan – similar haiga at MagnaPoetsJf

. . . Finally, a few of dagosan‘s Harvest Moon haiku:

three-headed stranger –
on his shoulders a pumpkin
and a harvest moon

double-dribble –
harvest moon hanging
on the rim

harvest moon party – full moon neg
the hostess stares
at the cloud cover

night game –
bocce balls kissing
the harvest moon

September 24, 2007

jury’s in: Blawg Review #127 is not guilty of thematic excess

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:58 am

When you go around doing a lot of assuming, your mental baggage will sometimes impede the journey down the road toward enlightenment.  So, even opinionated pundits (and crusty curmudgeons) need to travel with eyes and mind open. Fueled with copious amounts of caffeine, my eyes were sufficiently open this Monday morning to discover an important truth: despite assumptions and experience that might suggest otherwise, not every theme-oriented edition of Blawg Review is “annoying, strained and distracting.”

Exhibit A is “Blawg Review #127” at the Deliberations weblog (Sept. 24, 2007), where trial lawyer and jury maven Anne Reed offers her “list of 17 Best Tips For Voir Dire, as inspired and illustrated by some terrific law bloggers.” Anne’s first jury selection rule: “Assume Nothing.”

A brief stop at Blawg Review #127 will yield not only a quick review of notions important in choosing a jury (or trying to understand and persuade any group of people), but some great tips on interesting, recent law-related weblog materials. For example:

  • If you want to renew your respect for the jury system, or just learn about a commemorative stamp that is neither too cloying nor too obscure to use on your holiday mailings this year, see Eric Turkewitz’s post about the new Jury Duty 41-cent stamp (buy it here).

tagging along
with an ice cream cone
the senior partner

……………………………….. by barry george

Here are Deliberations top rules on jury selection. At Blawg Review #127, each of them is accompanied by a pointer to a worthwhile recent weblawg posting. Here, some of them are accompanied by a haiku or senryu by recovering (perhaps soon relapsing) lawyer, Barry George.

1. Assume nothing

long deposition–
the lawyer’s
“at the risk of repeating myself”

2. Look for leaders . . .

choppy river —
bursts of the coxswain’s orders
on the wind

……………….…… by Barry George – The Heron’s Nest Vol. IX: 3 (September 2007).

3. . . . and dissenters

4. Watch for points of view

retired Reds scout –
still eyeing the field
through dark glasses

………………………………… by Barry George – Mayfly #23;

5. Look for skills

my nephew’s fastball –
I hand back his glove
and keep the sting

………………………………… by Barry George – bottle rockets #11

6. Notice how they process information

Making change
the conductor
shifts his toothpick

……………………………… by Barry George – the loose thread: RMA 2001;
Modern Haiku XXXII:1

7. Know what generational differences mean, and don’t

ocean sundown–
a child jumping up
for one last look

………… by Barry George – Tinywords.com (Sept. 12, 2007)

8. Pay attention to the quiet ones

9. Remember they have lives

the late glare
of a summer sidewalk —
winos pool their change

….. barry george – The Heron’s Nest VIII:4 (Dec. 2006)

10. Not all jurors are like you

cats at twilight–
I am the magician
filling their bowls

…………………………. by barry george – Simply Haiku

11. Some just want to get back to work

spelling test
the teacher’s
squeaky shoes

……………….. by Barry George from A New Resonance 2; Frogpond XXIII:3

12. Learn the publicity, whether it’s national . . .

extended drought
the wake of a goose
drifts toward shore

………………………… by Barry George – The Heron’s Nest (Oct. 2002)

13. . . . or local

14. They want the big picture

wind chimes
sharper, clearer
after snow

…………………………… barry george — the heron’s nest VI: 6 (June 2002)

15. If you’re lucky, you’ll have a juror artist

strung across the art room–
winter rain

……………………. by Barry George – simply haiku (Oct. 2003)

16. Make a good impression

the accused teen
and his lawyer…
dressed for spring

……………………….. by barry george

17. Remember the majesty

pink begonias
the grey fall

…………………….. by barry george – Simply Haiku

Many thanks to Anne Reed for including our post on the Saiban-in jury system that is coming to Japan in Blawg Review #127, and for her generous words about this weblog, under Rule 15: “If you’re lucky, you’ll have a juror artist.” Anne is the curator of The American Gallery of Juror Art (“art done by actual jurors while on actual jury duty”), and I’m sure she would appreciate any samples you might want to bring to her attention. In closing, I’m still not ready to give up my preference for non-themed editions of Blawg Review (dissent, Susan Cartier Liebel). One rule that Anne almost certainly subscribes to is “lawyer know thyself.” Just as some lawyers shouldn’t try to be stand-up comedians or great orators in front of juries, some lawyer webloggers need to do a reality check before they introduce themselves to the weblogging world through the prism of a theme-based Blawg Review. Anne has the skill and panache to pull it off. But not every lawyer (or, please, law professor) does.

September 23, 2007

r.i.p. Bip: marcel marceau dies at 84

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 7:44 am

Marcel Marceau as Bip (Reuters photo)

For many reasons, seeing Marcel Marceau perform at the Kennedy Center in Washington, D.C., circa 1980, was one of the most memorable events of my life (thank you, Ana). Marceau was always the exception to my oft-stated impatience with mimes. Marcel Marceau will be missed by millions; he helped to popularize and perfect his craft. See “Marcel Marceau, Acclaimed Mime, Is Dead at 84” (New York Times, Sept. 23, 2007); and Ann Althouse, “Silenced“, who says “Show some unspoken love today,” and has an excellent YouTube video).

“In mime, Marceau said, gestures express the essence of the soul’s most secret aspiration. ‘To mime the wind, one becomes a tempest. To mime a fish, you throw yourself into the sea’.”

the mime
in our mittens

………………….. by John Stevenson – Quiet Enough (Red Moon Press, 2004)

sudden lightning–
the street mime

…………………… by Michael Dylan Welch – from snow on the water: RMA 1997

winter fog
everyone crowds around
the mime

……………………………….. by ed markowski

samurai sword
done in ink —
he adds a drop of red

………………………….. by Yu Chang – Upstate Dim Sum 2007/I

autumn equinox
not even the mime
can balance the egg

…………………….. by dagosan [In mem., Marcel Marceau; see MagnaPoets JF, Sept. 23, 2007]

afterwords: A few more quotes from Marcel Marceau:

I have designed my style pantomimes as white ink drawings on black backgrounds, so that man’s destiny appears as a thread lost in an endless labyrinth.”

Never get a mime talking. He won’t stop.”

“Do not the most moving moments of our lives find us all without words?”

September 22, 2007

the saiban-in jury system is coming to a reluctant Japan

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 10:42 pm

To this day, we value harmony,” she said, and, referring to a haiku by Basho, Japan’s greatest poet, she added, “In Japan, to not speak is considered a virtue.” …… Fusako Kimura, 73, quoted in New York Times,Japan Learns Dreaded Task of Jury Duty” (July 16, 2007).

noisy reed thrush–
the big river flows
in silence

how quiet
the light blue morning-glory…
such good manners

losing the contest
I discover
the lord’s mum won
……………………………………….. by Kobayshi Issa, translated by David G. Lanoue

Milwaukee trial lawyer Anne Reed will be hosting Blawg Review #127 on Monday, September 24, 2007, at her juries and jury trial weblog called Deliberations. In my pre-Blawg-Review stop at Deliberations today, I discovered a fascinating topic that should interest f/k/a readers, whether they care about legal systems or Japanese culture: “Juries In A Quiet Land: ‘Saiban-In’ Comes To Japan” (Deliberations, September 20, 2007). [And see, Rough justice in Japan, BBC radio broadcast (September 2007; via Foley Square weblog] As they explain at the Japan Juries and Democracy Program webpage of the University of Montana’s Mansfield Center:

“Japan is in the middle of a dramatic reform of its judicial system that would have appealed to the democratic instincts of Mike Mansfield. In 2001, the Japanese Diet enacted the Saiban-In law (“Lay Assessors Act“), which takes effect in [May] 2009. This law creates a new quasi-jury system in Japan whereby persons charged with major crimes will have both their guilt and sentence determined by a judicial panel composed of three professional judges and six lay persons, rather than by professional judges alone. Japan had a classic jury system briefly in the pre-war period, but the return to citizen participation in the judicial process is a big break with the past and signifies a bold commitment to promote democracy.”

A recent New York Times article gives further details, noting that “In the new system, judges and jurors, with one vote each, will decide cases by a simple majority. Jurors can ask questions in the courtroom, and through their numbers can effectively overrule the judges. Even though all three judges may rule that a defendant is guilty in a case, a not-guilty ruling by at least five of the jurors will prevail. The only exception involves a guilty ruling: even if all six jurors vote guilty, the ruling will not stand unless at least one of the three judges shares that verdict.” This sounds like a major breakthrough for citizen participation in the judicial system, but the Times voices a concern that is also heard throughout Japan:

“But for it to work, the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority.

“To win over a skeptical public, Japan’s courts have held some 500 mock trials across the country. . . . Still, polls show that 80 percent are dreading the change and do not want to serve as jurors, a reluctance that was on display among the mock jurors here.”

“. . . . ‘There is no denying that great submissiveness is part of the national character,’ Judge [Tomonao Onizawa, who is the councilor general at the Supreme Court] said. But, he added, ‘I think this will change gradually.’

“But opponents say that change is unlikely because the judges will overwhelm the jurors. Many favor an American-style jury system, which would separate argument-averse Japanese from the judges.”

Japan’s Ministry of Justice has launched a major campaign to educate the public, including pamphlets, slick advertisements,

and even movies.

having a jumping contest
a night burglar
a cuckoo

locked in a staring contest
and a frog

soon enough
the man-killing man too…
just dew on the grass

in hell’s mirror
the plum-blossom thief’s

mother cat
steals for her kittens…
run faster!

………………… by Kobayshi Issa, translate d by David G. Lanoue

For additional information on Saiban-in, see:

  • Foley Sqaure, the informative weblog of attorney Robert E. Precht, which focuses on “blogging on Japan’s new jury system called saigan-in.” Precht is associated with the Maureen & Mike Mansfield Center at the University of Montana, and “has been making monthly trips to Japan to talk to lawyers, judges, and citizen groups about the U.S. jury system.”
    Kent Anderson and Emma Saint*
  • The Japan Juries and Democracy Program of the University of Montana’s Mansfield Center, which “will join with colleagues at the UM School of Law, the Mansfield Foundation, and relevant Japanese organizations – including the Japanese Bar Association – to help prepare Japanese judges, prosecutors, defense lawyers and lay people prepare for this significant transition. The UM units will also join in collaborative research on the potentially far-reaching legal and social changes that ensue.”
  • Wikipedia’s entry The Jury in Japan
  • The workshop held a year ago today at Cornell Law School, titled “Citizen Participation in East Asian Legal Systems,” sponsored by the Clarke Program in East Asian Law and Culture (September 22-23, 2006), and organized by professor Valerie Hans.

In a recent posting at Foley Square, “Kyoto Bar Association” (September 12, 2007), Precht describes a presentation he made to the Kyoto bar group. In part he noted that:

“Many people think that Japanese citizens won’t speak up in front of the professional judges, but defense lawyers can help educate the lay members of the saiban-in panel and appeal to them directly. Lawyers can ask the citizens to pay attention to particular pieces of evidence, and lawyers can give the citizens clear choices to make in deliberations. If lawyers do that, it will be difficult for the professional judges to tell the citizens to ignore defense arguments. In a very real sense, it is the responsibility of defense lawyers to give citizens opinions and to empower them to express the opinions.” (emphasis added)

In her Deliberations posting this week on Saiban-In, jury expert Anne Reed says “If you think the jury system can be problematic here, imagine starting a jury system from scratch — in a culture known for a level of deference and reticence that would bring most American jury deliberations to a standstill. That’s what they’re trying to do in Japan.” She emphasizes:

“Significant” barely conveys how big this change is. The transition isn’t just from judges to juries; it’s from writing to talk, lawyers to witnesses, authority figures to ordinary people, years to days.

I plead virtually total ignorance of Japanese culture and society. But, I know that many of our Honored Guest Poets and other haiku aficionados who read f/k/a are steeped in Japanese ways and have studied their culture and language, often living there for extended periods. I would love to hear from anyone who — perhaps after spending significant time among citizens of Japan, or even judging haiku or renku contests with Japanese haijin — have insights or opinions to offer on how the jury system is likely to work in that nation. Please use our Comment section or email me with your ideas.

In the meantime, perhaps Master Issa can shed some light on Japanese perspectives on the justice system and attitudes toward authority and social harmony:

used to losing
I’m peaceful, calm…
mum contest

lit by the mosquito-murdering
my white hair

it’s a man-killing
mushroom, true…
but pretty!

a reed thrush–
chasing the incompetent

filled with shame
flat to the ground…
the thief cat

unaware of the thief’s
eyes, melons
cooling in water

the thief
is just as he is…
hazy moon

the mountain moon
gives the blossom thief

even for stealing water
for my rice field…
I take my parasol

in the misty day
no window can be seen…
a prison
……………………………………….. by Kobayshi Issa, translate d by David G. Lanoue

September 21, 2007

the hands of women by pamela miller ness

Filed under: Book Reviews,Haiku or Senryu — David Giacalone @ 10:38 pm

To mark the activities of Haiku North America 2007, in August 2007, our honored guest poet Pamela Miller Ness (current President of the Haiku Society of America, and editor/publisher of Red Lights Tanka Journal) had 250 copies of the chapbook The Hands of Women printed by Swamp Press/Lily Pond Press. This loving commemoration of the “needlewomen” in Pamela’s life is a remarkable sequence of 6 haiku and 4 tanka, which I wanted to share with the readers of f/k/a. When I asked Pamela if I could post her chapbook in full, she immediately and generously gave her permission. Therefore, you will find The Hands of Women reprinted below in its entirety. Many thanks to Pamela.

. . . . . .

. . . . . . . .

first day of the year
I take up my needles
and knit a row

She knits
a Fair Isle sweater
each stitch formed
by the hands of women
who have gone before.

first day of spring
I wind the ball
of lime green yarn

of her 80th year
she knits a shawl
all the colors
of the rainbow

hurricane over
the click click click
of knitting needles

the wee hours
weaving loose ends
into my knitting

she knits a scarf
the color of sky

winter solstice
I unravel my knitting
and begin again

Midwinter dusk:
you practice flute,
I crochet . . .
would that it could
always be so.

Binding off
the baby blanket
I wind
and store the unused yarn.
Last day of the year.

my mother & grandmothers
and all the needlewomen
who have gone before

by Pamela Miller NessThe Hands of Women
(Lily Pond Press/Swamp Press, August 2007)

Some of these poems have appeared in
Mariposa, Modern English Tanka,
Modern Haiku, Penumbra,
Sixty Sunflowers
(TSA Members
Antholgy) & Solaris Hill

If you would like a letter-press printed copy of Pamela’s chapbook The Hands of Women, please contact her directly at – DeuceDK AT aol DOT com . The $5.00 price includes an envelope for gift-giving and postage. Even if the “needlewomen” [or needlemen] you know aren’t yet haiku and tanka lovers, they will appreciate this beautifully-written and printed chapbook.

limiting terms and seasons

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 12:52 pm

Summer officially ends early Sunday morning, September 23. If you’re looking for a collection of haiku and senryu focused on the autumn equinox, end of summer and/or the start of fall, try our post from a year ago, “autumnal equinox haiku.”

cut grass
i sweep away
summer’s end
. . ………………………. . . Roberta Beary – The Heron’s Nest (Sept. 2005)

autumn equinox
making a new arrangement
out of the old

. . . . Pamela Miller Ness – The Heron’s Nest (Dec. 2003)

Haiku poets, and most sentient beings, love the changing of the seasons. Not liking hot weather, I especially enjoy the transition into Fall. On the other end of the human spectrum, however, many judges having become very negative about some things ending — especially, their life tenure on the bench, through artificial means like term limits.

JohnRobertsPix A prime example is Chief Justice John Roberts, who apparently has equated judicial terms limits with an assault on judicial independence and gets the topic into every public presentation. The lastest example came two days ago at Syracuse University, where he was helping to open a new building at the S.I. Newhouse School of Public Communications. See “Chief justice stresses judicial independence: Without it, he says, a society’s “noble promises” of freedom are worthless,” Syracuse Post-Standard (Sept. 20, 2007); journalist professor Mark Obbie’s LawBeat weblog, But enough about you . . . (Sept. 19, 2007).

Robert Ambrogi has a good summary of media reaction to the Roberts’ speech in “Roberts Gets Lesson in Free Speech” (LegalBlogWatch, Sept. 20, 2007):

From reports of those who attended, the message of his speech came down to this: the First Amendment means nothing without an independent judiciary to uphold it. From that followed this secondary message: Term limits for judges threaten judicial independence and therefore threaten the First Amendment.

Bob excerpts negative reactions by Obbie and Mauro, as well as Slate‘s Dahlia Lithwick, who pointedly pointed out in “Telling It Like It Isn’t: John Roberts speaks out. A little” (Sept. 19, 2007):

“The chief justice doesn’t explain today how twisting the ambiguous language of ‘Bong hits 4 Jesus’ into a pro-drug message in order to suppress it protects us from the tyrannical linguistic preferences of the ruling elites.”

We clearly do need strong judges to help assure our First Amendment and other constitutional rights. But I frankly do not see the connection between term limits on judges and the continued protection of those rights. Indeed, one reason that so many people are talking about limiting the time a Supreme Court justice can remain on that bench is precisely the fact that certain conservative justices who seem quite unfriendly to First Amendment and similar rights may very well be with us, curtailing those rights, for decades to come.

Yes, there could be political reasons for limiting the term of judges. But, term limitations that apply across the board to all judges serving on a particular court, or all federal courts, would seem to have little to do with how a particular judge or a full court will rule in a particular matter or series of cases. Knowing you only have X years to spend on a court might motivate you to want to make sure you make your mark — but, I do not see how it limits judicial independence. It, in fact, helps limit executive powers, since no President will be able to affect court decisions three or four decades in the future by packing a court with youthful jurists.

autumn equinox —
waking to
summer’s last cricket

fall’s first sunset — .
driving due west

. . . ………………………………………… dagosan
“last cricket” – Nisqually Delta Review (2006)

September 20, 2007

how do Your Morals affect Your Politics?

Filed under: Haiku or Senryu,viewpoint — David Giacalone @ 9:37 am

  In an attempt to be a good citizen, I had planned to spend some serious time yesterday learning about the recently-released Hillary Clinton health care proposal and how it compares with those of other presidential candidates. [Starting with discussion by Washington Post columnist Steven Pearlstein, “A Healthy Dose of Hillary” and by David Brooks at the New York Times, “Hillary Clinton, From Revolution to Evolution” (Sept. 19, 2007).] I was even going to delve into the very useful Public Agenda Health Care Issue Guide.

I quickly found myself in agreement with Pearlstein’s conclusion in WaPo that:

“The rap on Hillary Clinton — the reason even Democrats haven’t warmed to her — is that everything she does seems driven by political calculation. Now with a well-crafted proposal on a signature issue, Clinton has the opportunity to prove that she can also be the leader who is willing to tell voters the hard truths they have suspected all along but don’t want to confront.”

But, alas (and, definitely, alack), both my flesh and spirit were weak, and I was rather easily led astray, when tempted by a subject that is simply a lot more interesting to my curious and optimistically-skeptical brain: Is ‘Do Unto Others’ Written Into Our Genes? (New York Times, by Nicholas Wade, Sept. 18, 2007) The NYT article focuses on the work of social psychologist Jonathan Haidt of the University of Virginia, a proponent of positive psychology, and author of “The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom” (“a book about how to construct a life of virtue, happiness, fulfillment, and meaning.”). Haidt (pronouced like “height”) “has been constructing a broad evolutionary view of morality that traces its connections both to religion and to politics.” Looking at situations that cause almost universal disgust in human beings, Haidt became interested in the phenomenon of moral dumbfounding — “when people feel strongly that something is wrong but cannot explain why.”

Dumbfounding led him to view morality as driven by two separate mental systems, one ancient and one modern, though the mind is scarcely aware of the difference. The ancient system, which he calls moral intuition, is based on the emotion-laden moral behaviors that evolved before the development of language. The modern system — he calls it moral judgment — came after language, when people became able to articulate why something was right or wrong.”

According to the NYT Article, “Dr. Haidt combed the literature of anthropology and psychology for ideas about morality throughout the world. He identified five components of morality that were common to most cultures. Some concerned the protection of individuals, others the ties that bind a group together.” (emphasis added)

“Of the moral systems that protect individuals, one is concerned with preventing harm to the person and the other with reciprocity and fairness. Less familiar are the three systems that promote behaviors developed for strengthening the group. These are loyalty to the in-group, respect for authority and hierarchy, and a sense of purity or sanctity.”

Of particular interest to political pundits and junkies, “Dr. Haidt has detected a striking political dimension to morality.” Working with grad student Jesse Graham, he found that self-proclaimed:

  • “[L]iberals attached great weight to the two moral systems protective of individuals — those of not harming others and of doing as you would be done by. But liberals assigned much less importance to the three moral systems that protect the group, those of loyalty, respect for authority and purity.”
  • “Conservatives placed value on all five moral systems but they assigned less weight than liberals to the moralities protective of individuals.”

Haidt, who calls himself a moderate liberal, believes that “extreme liberals” attach almost no importance to the moral systems that protect the group. [Note: that sounds like Libertarians.] The article explains, that “Because conservatives do give some weight to individual protections, they often have a better understanding of liberal views than liberals do of conservative attitudes, in his view.” Dr. Haidt insists that societies need both kinds of personalities.

According to the Times, Haidt is “aware that many people — including ‘the politically homogeneous discipline of psychology’ — equate morality with justice, rights and the welfare of the individual, and dismiss everything else as mere social convention. But many societies around the world do in fact behave as if loyalty, respect for authority and sanctity are moral concepts, Dr. Haidt notes, and this justifies taking a wider view of the moral domain.” Haidt points out:

“Notions of disgust and purity are widespread outside Western cultures. ‘Educated liberals are the only group to say, “I find that disgusting but that doesn’t make it wrong”,’ Dr. Haidt said.” [An example given: a hungry third-world family eats its pet dog after it is injured and dies, basically reducing it to roadkill. Most of us would be disgusted by their diner entree, but why?]

Read the full article to hear from Haidt’s critics. [Note: I am not impressed by those who say Haidt misses the fact that liberals support social programs and government intervention. It seems rather obvious that they do so in order to protect individuals and promote their welfare.]

I think Dr. Haidt has given us an interesting additional perspective to help understand how our own or other people’s world-views emerged and affect their attitudes and politics. You might want to compare his approach to the insight offered by David Callahan in his The Moral Center – the public/electorate is not so much split between liberals and conservatives, as between “The Cares [about the fate of all Americans]” and “The Care Nots.”

As I wrote in the post towards a “democratic morality” and majority, on the night of George W. Bush’s re-election in 2004, liberals and Democrats need to acknowledge and emphasize the values that we share with a broad portion of the American public. To build a Democratic majority, we must maintain a conversation with people of good will and strong personal ethics, who are deeply committed to their social and family responsibilities, and then to “build a broad consensus on values and morality — social and personal — that can make America stronger and more united. Haidt’s analysis should assist the process of understanding each other.

If you are wondering how Haidt’s analysis might apply to yourself or your family and friends, I suggest you head over to the YourMorals.org website, which offers several tests that allow you to Explore Your Morals — “where you can learn about your own morality while contributing to scientific research on moral psychology.” The website is a collaboration among several social psychologists who study morality and politics.
The main questionnaire at YourMorals.org — the one that is the foundation of Haidt’s conclusions about the relationship between ideology or politics and morals, and that they hope you’ll start with — is its Moral Foundations Questionnaire. It should take about 20 minutes to complete, and helps you identify “What underlies the virtues and issues you care about? Why do you have the political orientation that you do?” It might be interesting and enjoyable to sit down with the test and a few friends some time soon, perhaps on a cold, rainy autumn weekend. Other tests offered from their Explore Your Morals page include:

  • Presidential Candidates and Morality Survey (Which candidates for President in 2008 do you prefer? What do you think about morality and politics?)
  • Sacredness Survey (What would you do for a million dollars/?)
  • Identification with Humanity Scale (What groups are you most loyal to? Whom do you identify with most?)
  • Moral Scenarios #1 (How would you judge people who face these dilemmas?
  • Preference for the Merit Principle (How do you believe rewards should be distributed in society?)

I’d love to know how Hillary Clinton (as well as Obama, Edwards and others) would score on YourMorals’ surveys, and what conclusions she would draw from the evaluation. [Would her morality lead her, as WaPo‘s Steven Pearlstein wonders, to share with voters “the hard truths they have suspected all along but don’t want to confront”?] Right now, though, I’m going to simply share some haiku from the person who comes to mind (without controversy or “negatives”) when the haijin community hears the word “Hilary” — Union College’s music professor and composer, Hilary Tann. Here’s a selection from the most recent edition of Upstate Dim Sum, a biannual anthology of the work of the four-member Route 9 Haiku Group:

downtime –
the contours of your face
by firelight

Valentine’s Day —
our first bluebird
at the feeder

All Saints Day —
the hay bale
sprouts green

quiet day
the leaves
where they fall

his shirts
in a line —
the urge to hug

………………… by Hilary Tann from Upstate Dim Sum 2007/1

p.s. On a mostly unrelated topic: I was surprised this morning to see that someone came to this website after Googling <most famous barrister of all time>, and clicking on the #1 result, which was our post “top twenty law review articles of all time” (April 11, 2007). [I had been discussing BabyBarista and getting rid of wigs in civil matters in the UK and said: “That reminds me of a question I’ve often wanted to ask UK lawyers: Do they mind that Horace Rumpole is the most famous barrister in America? Is he the most famous in Britain, too?”] Following that referral back to its source, I discovered that UK’s The Lawyer recently had an article proclaiming, “Revealed: UK’s most famous lawyer” (Sept. 12, 2007). They used the dubious measurement of “mentions in the press in 2006” (what took them so long compiling the results?, one might ask). Tony Blair’s wife Cherie Booth QC [347 mentions] and Heather Mills’ divorce solicitor Anthony Julius [195] “battled for the title of the UK’s most famous lawyer.” But note: Jack Straw, incoming Lord Chancellor and Justice Minister had 4616 mentions.

Rumpole No matter what those iffy numbers may tell you about current lawyer fame, I have the feeling that Horace Rumpole may in fact be the “most famous barrister of all time” (with Perry Mason the most famous U.S. lawyer?). Rumpole is surely a great role model.

  • Finally, also unrelated to Morals and Politics, but worth a mention: Hat tip to Anastasia at Lawsagna, for her helpful review of the latest edition of The Complete Lawyer magazine.

September 19, 2007

we’ve expanded the f/k/a baseball haiku page

Filed under: Haiku or Senryu — David Giacalone @ 3:39 pm

at bat neg Whether the last weeks of the season have whet your baseball appetite, your team is already out of the running, or (like Prof. Yabut) you’re not really much of a fan at all, you might want to check out the f/k/a baseball haiku page, which was revamped and expanded overnight. The page now has more than 80 haiku and senryu about baseball, from fifteen members of the f/k/a family of poets [from Roberta Beary, to Peggy Lyles, to Billie Wilson, with a male haijin or two in between]. As haikuEsq likes to say, “You don’t have to love baseball or haiku to enjoy real haiku about baseball.

Technical problems have made it a bit difficult to read and impossible to edit or add to our Baseball Haiku Page for quite awhile, but we’ve apparently got the formatting under control, in time for the MLB playoffs and World Series. As new poems are submitted or published by our Honored Guests Poets, or penned by dagosan, they will be included on the page, and first placed at the top in the Recent Additions section. Here’s what you’ll find in at the top of the BHPage today:

recent additions:


pitching change
a butterfly follows a wave
through the upper deck

hangovers in suits umpireS
climb onto the team bus
summer morning

…………………………………. by Lee GurgaBaseball Haiku (2007)

season’s end
every pennant on the stadium roof
pointing south


………………………………… by ed markowski

Holy Cow!
the infield chatter

[in mem. Phil Rizzuto, August 2007]

infielderF …………………………………. by david giacalone


time out
the setting sun
takes center field

………………………………………. by Peggy Lyles – Modern Haiku 38:1 (2007)

update (Sept. 23, 2007): See Raymond Pettibon’s Baseball Is Immortal

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