Blawg Review #250


Blawg Review #250 
“The gem cannot be polished without friction, nor man perfected without trials.”

~ Chinese Proverb

The theme of this week’s Blawg Review is the Bushidō (武士道), or “the way of the warrior,” the moral code of the Samurai, the privileged warrior class of ancient Japan, whose philosophy of Bushidō emphasized loyalty, frugality, the mastery of martial arts, and “honor unto death.” (this is, after all, The Trial Warrior Blog). The author hopes that the suicidal rituals of hara-kiri or seppuku will not be required after reading this post.
While philosophy and swordsmanship are the most familiar aspects of Samurai culture, serenity of Japanese Shinto and Buddhism also played an integral role in the Samurai’s dedication to loyal service and the pursuit of justice. (William Scott Wilson, Ideals of the Samurai: Writings of Japanese Warriors (Kodansha, 1982)

Most lawyers will recognize the Samurai’s need for a moral code of conduct to govern the members of their profession. The Canadian Bar Association has recently updated its model CBA Code of Professional Conduct, which now includes Guidelines for Practicing Ethically with New Information Technologies (.pdf) Guidelines for Ethical Marketing Practices Using New Information Technologies (.pdf)

Ostensibly, Bushidō is the antecedent to modern “Rules of Professional Conduct”, but it:

“is not a written code; at best it consists of a few maxims handed down from mouth to mouth or coming from the pen of some well-known warrior or savant. More frequently it is a code unuttered and unwritten, possessing all the more the powerful sanction of veritable deed, and of a law written on the fleshly tablets of the heart. It was founded not on the creation of one brain, however able, or on the life of a single personage, however renowned. It was an organic growth of decades and centuries of military career.” (INAZO NITOBE, BUSHIDO: THE SOUL OF JAPAN (Kodansha Int’l Ltd. 2002) (1900) at 34-35.”

While researching for this Blawg Review, I came across The Samurai Creed:

I have no parents; I make the Heavens and the Earth my parents.
I have no home; I make the Tan T’ien my home.
I have no divine power; I make honesty my Divine Power.
I have no means; I make Docility my means.
I have no magic power; I make personality my Magic Power.
I have neither life nor death; I make A Um my Life and Death.


I have no body; I make Stoicism my Body.
I have no eyes; I make The Flash of Lightning my eyes.
I have no ears; I make Sensibility my Ears.
I have no limbs; I make Promptitude my Limbs.
I have no laws; I make Self-Protection my Laws.
I have no strategy; I make the Right to Kill and the Right to Restore Life my Strategy.
I have no designs; I make Seizing the Opportunity by the Forelock my Designs.
I have no miracles; I make Righteous Laws my Miracle.
I have no principles; I make Adaptability to all circumstances my Principle.
I have no tactics; I make Emptiness and Fullness my Tactics.


I have no talent; I make Ready Wit my Talent.
I have no friends; I make my Mind my Friend.
I have no enemy; I make Incautiousness my Enemy.
I have no armour; I make Benevolence my Armour.
I have no castle; I make Immovable Mind my Castle.
I have no sword; I make No Mind my Sword.

The spirit of the unwritten Bushidō moral code is based upon seven ubiquitous human virtues:

1. Rectitude 2. Courage 3. Benevolence 4. Respect 
5. Honesty 6. Honour 7. Loyalty

The common law adversarial legal system itself developed from the medieval antecedents of trial by ordeal, trial by fire, and trial by combat (see, Kadri, Sadakat. THE TRIAL: A HISTORY FROM SOCRATES TO O.J. SIMPSON (Random House, 2006); C. Pilarczyk, Ian. C. “Between a Rock and a Hot Place: Issues of Subjectivity and Rationality in the Medieval Ordeal by Hot Iron”, 25 Anglo-American Law Rev. 87-112 (1996); V. L. Ziegler, TRIAL BY FIRE AND BATTLE IN MEDIEVAL GERMAN LITERATURE, Camden House (2004); Evans, Donald, J. “Forgotten Trial Techniques: The Wager of Battle” ABA Journal 71:66 (May 1985)).

In feudal Japan, during the Kamakura shogunate (1185-1333) period, Samurai were often called upon to act as legal advocates in the Japanese feudal court system to resolve property disputes, although “sharpening one’s sword” took on a literal meaning with deadly consequences:

“Transferring his aggressively individualistic attitude from the battlefield to the court, the medieval samurai could be ferociously litigious. Whether he preferred lawsuits or contests of arms to resolve a conflict depended on the situation of the individual samurai. . . . Thus, the existence of a judicial system not only did not inhibit the spirit of personal responsibility and private retribution; it was built on the foundation of samurai self-determination.” Chenise S. Kanemoto, Bushido in the Courtroom: A Case for Virtue-Oriented Lawyering, 57 S.C. L. Rev. 357 (2005), at 357, fn. 1, citing EIKO IKEGAMI, THE TAMING OF THE SAMURAI 87 (Harvard Univ. Press 1997).

Apparently, the adage “a man’s home is his castle” applies depending on which side of the Atlantic you are on. The Volokh Conspiracy: Asset Forfeiture: “A License to Steal” discusses the more disturbing trend of asset forfeiture by the government, while Charon QC questions a recent comment by Conservative leader David Cameron that Burglars ‘leave their human rights outside’ when they break in to a property.”

Perhaps, Brian Inkster’s recent blogging about pending legislative changes in Scotland to Crofting Law dating back to 1886 may have some interesting historical parallels, or we may consider trying to “extract the cultural peat” of law and justice like the Lallands Peat Worrier http://lallandspeatworrier.blogspot.com/.

Thankfully, property law disputes no longer require martial artistry, although Chris Jaglowitz at Ontario Condo Law Blog does highlight the tension inherent in condo property rights in his post “Condo lien is not slander of title when the owner is in arrears”.

The blawgosphere did not disappoint in discussing the 7 Bushido virtues, or lack thereof, last week.

1. Rectitude

As Thomas Jefferson famously wrote in the Declaration of Independence:

We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, 
and by authority of the good people of these Colonies, solemnly publish and declare, 
That these United Colonies are, and of right ought to be Free and Independent States.

Diane Levin’s The Mediation Channel exemplifies rectitude as she recognizes Mediate.com as the institutional recipient of the prestigious Lawyer as Problem Solver Award.

Not all lawyers fit the bill, as the Lawyerist notes in “Buying Clients at Total Attorneys? Pssst, Buddy, Wanna Buy a Client” .

Even judges sometimes forget that they are subject to a judicial code of conduct. As Einstein once observed:“Relativity applies to physics, not ethics”- a valuable lesson learned for one judge as pointed out by LegalEthics.com in a recent post: Friending Judges at Legal Ethics.

Often, rectitude is in the eye of the beholder, at least when it comes to the issue of jury duty. Eric Turkewitz over at the New York Personal Injury Attorney Blog, poses the question of whether a sitting President should be required to sit on a jury. Turkewitz writes:

“But how about the President?

On the plus side of having him sit, it promotes jury duty and the concept that power is dispersed among the people. The distribution of power among the citizens and away from the Crown was the very essence of the Revolution. The Declaration of Independence, once you get past its magnificent opening, leads into its bill of particulars regarding the usurpations of power by King George with this:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States

And among that list of usurpations is this:
 

For depriving us in many cases, of the benefit of Trial by Jury

And this is not just enshrined in the Declaration, but the Bill of Rights. The Sixth Amendment protects those charged with crimes and the Seventh Amendment guarantees juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

Turkewitz concludes (correctly, in my view) that “…while I am a huge fan of the jury system, when it comes to the top honcho, I believe that deferment until he leaves office is appropriate.”

2. Courage

Winston Churchill once said that: “Courage is going from failure to failure without losing enthusiasm.”

I suppose we each gain courage and inspiration from overcoming our fears and facing the unknown. I remember the trepidation I felt over the course of my early legal career. First, getting into law school and realizing that it was nothing like undergraduate studies. Afterward, working hard and paying my way through law school by loading trucks and railway cars at the night shift down on the Toronto docks off Cherry Street, dreaming of landing an articling position with a downtown law firm. Then, fortunate enough to graduate and secure an associate position, ultimately realizing that it wasn’t all that it was cracked up to be, deciding to go into solo practice. Whether this is courage or just simply adulthood is a metaphor which resonates with many young grads in this difficult economy, as suggested in “Fresh Young Grad Charts His Own Course: As a Solo.

Scott Greenfield provides some much needed tough love to new lawyers thinking about blawging and offers sage advice about courage of one’s convictions and opinions in the blawgosphere:

“The blawgosphere is a tough place, where your peers may read your ideas and tell you that they are ugly. Butt ugly. That’s the way the place has operated since its doors opened, and it still functions that way today.
Write something and someone may disagree with you, and do so publicly on their blawg. Promote yourself and someone may knock you off your marketing pedestal and make you look like a fool. Or worse. None of the cheerleaders mention that there is no guarantee that you will find love or adoration online. None mention that you may well find yourself the butt of a thousand eyeballs if your well-written blawg post is not well-received.”

Mike, The Frugal Law Student offers his own two cents on the economics of law school in “Is Law School Worth The Cost?

Perhaps if law school or blawging doesn’t pan out, The Wall Street Journal Law Blog has a story about going from Big Law to Hollywood producer, although this sounds less like courage and more like ambition coupled with talent and a very big brain. “Mr DeMille, I’m ready for my close-up.” I still prefer Brian Cuban’s debut on “The Deep End” any day of the week.

The pressures of legal practice are well-known, including unrealistic client expectations, downward pressure on fees and escalating time demands. Jon Bloor presents a humorous angle on the effects of lawyer sleep deprivation in a cleverly entitled blog post “Lawyerstar Galactica” posted at his Peninsulawyer Blog. I wonder if the Cylons just got sick of having to respond “By Your Command” every time they had to do something.

Oscar Michelin at Courtroom Strategy Blog, offers a sound argument in favour of the civil trial system in “Why the Terror Over the Terror Trials? .

Perhaps we all need to take a Nietzschean view of lawyering, not unlike the superb law cartoonist, Charles Fincher in his Off the Law cartoon “Super Lawyers”at LaxComix.

3. Benevolence

Lawyers serve the public, although many are not public servants. The legal profession does step up to the plate often, as illustrated by Lawyers helping the country recover from the economic crisis.

Carolyn Elefant over at My Shingle offers some good advice about the benefits of discarding the Big Law “loss leaders” business model toward the greener pastures of boutique practice.

Mark Lewis at slaw.ca discusses how law schools still rely on private benefactors for their continued existence. (Alumni associations take note). Lewis reminds us that the first Friday in February is Munro Day, a Dalhousie holiday in honour of the benefactor who rescued the university from a precarious financial position in 1879.

4. Respect

Someone once said, “Respect is a two-way street.”

“Bleeding hearts in law school” is the title of a recent Law Is Cool blog post discussing the recent quote by Kory Teneycke, a former top adviser to PM Stephen Harper, who was interviewed on CTV’s Power Play about the Khadr decision. An interesting viewpoint on the respect for the criminal justice system from our Conservative government.

Benjy Radcliffe over at thecourt.ca offers a trenchant critique of the law enforcement and armed conflict paradigms underlying the political-legal debate on prosecuting alleged terrorists in “Umar Farouk Abdulmutallab: Enemy Combatant or Criminal?

Respect for the Geneva Convention against Torture and human right is the subject of Jack Balkin’s post at Balkinization:“John Yoo’s explanation of the purpose of the Torture Memos, and their actual purpose”.

At his BC Injury Law and ICBC Claims Blog, Erik Magraken presents a balanced analysis on discovery obligations and privacy rights in his post “More on BC Injury Claims and Discovery – Balancing Document Disclosure with Privacy

Over at Balkinization, Andrew Koppelman takes issue with Brian Leiter’s view that there is no good reason for law to single out religion for special treatment.

Michael J. Klarman, Kirkland & Ellis Professor of Law at Harvard Law School, at SCOTUSblog provides an incisive critique of the US Supreme Court decisions concluding that it continues to offer “no respect” to African Americans:

“I would draw three lessons from the last forty years of the Supreme Court’s racial jurisprudence. First, most of these rulings have been five to four. Had there been one more liberal justice, many of these cases likely would have been decided differently. It was not predestined that the Court would reject race-based affirmative action, prematurely terminate the school desegregation project, or reject the argument that the Constitution bars racially disparate impacts regardless of discriminatory motive. Constitutional interpretation involves judicial discretion; judicial discretion reflects political ideology; and conservative justices tend, unsurprisingly, to subscribe to the conservative racial ideology of the party that appointed them. That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation’s ugly history of white supremacy as something more to be repudiated than remedied.

Second, while the political composition of the U.S. Supreme Court is partly fortuitous, the victories of the conservative bloc of justices since 1970 have predominantly been a function of politics. Between 1968 and 2008, Republicans controlled the presidency for twenty-eight years, Democrats for only twelve. Of the fourteen appointments made to the Supreme Court between 1969 and 2006, twelve were made by Republican presidents, most of whom prided themselves on their conservative politics. Because constitutional interpretation is so inextricably fused with politics, it should come as no surprise that justices appointed by presidents for whom very few black people voted would decide race-inflected cases in ways that contravened the preferences of most African Americans.

Third, one has to wonder how much difference it would have made had the liberal justices triumphed on some of these racial issues. Public opposition to “busing the suburbs” was so intense by the early 1970s—think of the 1974 anti-busing riots in Boston, the so-called cradle of abolitionism—that a contrary decision in Milliken might either have spawned a constitutional amendment to overturn the ruling or inspired massive defiance. A conservative majority of justices has succeeded in invalidating most affirmative action plans reaching the Court, but even when the liberals have scored an occasional triumph, as with the University of Michigan Law School case in 2003, that result has been overturned at the polls, as most Americans seem inclined to support referenda forbidding benign racial preferences. Similarly, by the time the Court in 2007 invalidated race-based pupil assignment policies in grade schools that were designed to promote integration, only 5 or 10 percent of all school districts employed such policies; most of the country had already given up on racial integration.

In sum, while the last forty years of conservative hegemony on the Court has yielded racially regressive results pretty much across the board, one should not absolve the larger society that the Court serves of responsibility for such outcomes. The Supreme Court mirrors society at least as much as it shapes it. The conservative justices could not have foisted such a regressive racial jurisprudence on the American people without their acquiescence.”

Sobering thoughts, indeed.

Victoria Pynchon at Settle It Now Negotiation Blog considers respect for one’s adversary “Motion to Compel Lunch: Granted.” As David Mamet had Kevin Spacey immortally say: “go to LUNCH; GO to lunch; will you GO TO LUNCH”.

It would be the height of disrespect to not acknowledge the tremendous efforts of all the great blawgers who have contributed to the Blawg Review over the past few years. I stand on shoulders of giants, including 2009’s Blawg Review of the Year recipient, Kevin A. Thompson and his superb presentation of Blawg Review #213 at Cyberlaw Central.

5. Honesty

Criticizing without listening — but isn’t that what lawyers DO? Ernie the Attorney remarks on the kerfuffle over the incest trauma scholarship.

Scott Greenfield at Simple Justice considers the case of a homeless Fort Lauderdale man whose beating by police was caught on tape and released to the media by the public defender:

“You learn a few things after thirty years in the trenches. Finkelstein learned that he can’t trust the cops. He learned that even poor people, homeless people, are due the best efforts of his office. And he learned that without the eyes of the community watching as a deputy beat Gerald McGovern, nobody would ever believe that his client was the victim of a police beating. Howard Finkelstein knows what he’s talking about.

Without video, who would you believe? And so the defendant was released without bail and the charge dismissed, right? Well, not exactly. The judge ordered the defendant interviewed by pre-trial services to determine whether he should be released, and given a long history of warrants, chances are not good. Who cares if he didn’t commit a crime when there’s a potential warrant for failure to appear? I hope the food in Broward County jail is decent.”

Is it honest to let someone write a blawg or website for you? This issue takes centre stage in a number of blawgs which elicited considerable commentary, including Scott Greenfield at Simple Justice; Mark Bennett atDefending People and Social Media Tyro; Carolyn Elefant Jamison Koehler and elegantly summarized by Colin Samuels. Elefant and Bennett also demonstrated the importance of collegiality and civility when reasonable people disagree but hold each other in high professional esteem: UPDATE – I lost my temper [I Should Be Banned from the Blogosphere? As If...] : My Shingle.

After facing the Herculean task of writing my first Blawg Review, I am slightly inclined in favour of ghostblawging. Seriously, though, it seems counter-intuitive to publicize and promote one’s legal knowledge based upon an online professional persona, while allowing an unidentified ghost writer to churn out the blog content. If you don’t have time, then don’t bother.

On a related legal marketing note, while the road to hell may be paved with good intentions, Larry Bodine highlights creative legal marketing techniques in “Using judicial hellholes as marketing opportunities?” .

Admittedly, I watched the Saints come marching home last night at the Super Bowl. As Bitter Lawyer geared up to watch the Saints upset the Colts, it reminded them that the Super Bowl isn’t just the biggest media event of the year–it’s also a spawning ground for amazing lawsuits. So they made a list of the top six.

Madeleine Begun Kane at her Mad Kane’s Humor Blog also reminds us that humour is often the best weapon in “My New Policy” .

6. Honour

Much ink and in some instances, blood has been spilt over the honour, or dishonour of the justice system. Lurie Daniel-Favors presents a sobering analysis of racial profiling at The Race and Law Report in a post entitled Racial Profile Policing (or ?The It Is Only Barely Illegal To Illegally Beat Black People? Policing), who notes:

“Racial profiling happens when the police use their power to monitor and enforce the law against people of color differently and with less respect for their rights, than that which is used when White people and White communities are monitored.

Racial profiling happens any time the police act in ways towards Black and minority communities that they know they could not use in a White community.

So we have two forms of policing:

1) White Community Policing (“WCP): where the rules of innocence until proven guilty apply; and
2) Racial Profile Policing (“RPP”): where one is guilty of the crime of being a suspicious person of color – usually Black or Latino – until proven innocent.”

7. Loyalty

As this is Blawg Review #250, perhaps it’s fitting that we note here the loyalty of the Innocence Project to their clients, 250 of which have been exonerated after wrongful convictions: http://www.innocenceproject.org/Content/2354.php and http://www.innocenceproject.org/Content/2355.php.

Scott Greenfield discusses the case of Freddie Peacock who was recently exonerated after 33 years following a wrongful rape conviction in 1976. While Greenfield celebrates the 250th DNA Exoneration Nationwide, he also cautions that the criminal justice system remains flawed:

“Cases involving DNA are negligible, compared with those where no DNA is involved and yet convictions are obtained based upon the same flawed evidence, eyewitness misidentification, junk science and false confessions. No platitudes about how wonderful our system of justice is can overcome the fact that we continue to convict with bad evidence. Full prisons, and felons tainted for life, are its legacy.

The Innocence Project has done extraordinary work in freeing the innocent through DNA exonerations. But it’s not enough.”

Lack of scientific rigour and potential evidence contamination is also evident, as pointed out at Defrosting Cold Cases blog, discussing a recent Colorado case where DNA evidence being stored by the Colorado Springs Police Department was jeopardized by a faulty refrigerator.

Conclusion

Please join us for the next two Blawg Reviews also hosted by my fellow Canadian blawgers:
Feb 15 Canadian Trademark
Feb 22 Law Firm Web Strategy

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Corrigendum: Thanks to Diane Levin for the correction on Mediate.com as the recipient of the ABA Problem Solver Award

7 Responses to “Blawg Review #250”

  1. Diane Levin Says:

    Antonin, an outstanding edition of Blawg Review, with a unique theme. I applaud you! However, I would be displaying a woeful lack of rectitude were I not to point out it wasn't I who won the ABA Lawyer as Problem Solver Award. The honor goes to the deserving Mediate.com. My post saluted Mediate.com for this achievement. I appreciate the promotion, but it is wholly undeserved. Thanks though for the mention, Antonin. And thank you for this magnificent, epic presentation of Blawg Review. One of the very best I've yet seen – kudos, my friend.

  2. Asha S. Says:

    Great review! Just one quick note – I noted that the Race and Law Report post was actually written by Lurie Daniel-Favors at http://theraceandlawreport.solopracticeuniversity.com/. Other than that – fantastic work!

  3. Chris Jaglowitz Says:

    It’s probably trite, but those seven virtues of the Bushido are almost indistinguishable from the underlying virtues of the legal profession. I guess the only difference between us and the samauri is our choice of “weapon”. You've assembled a great collection of posts and have linked them very nicely. A great blawg review, Antonin!

  4. Erik Magraken Says:

    Very impressive Blawg Review Antonin! Great work and thanks for the mention.

  5. Vidocq Says:

    Thank you for mentioning my website!Aside from all the mentioned problems with DNA, we need to secure the right to post-conviction access to evidence for the defense. Great overview, again, thanks for the mention!

  6. Lallands Peat Worrier Says:

    I love the internet, partly for its capacity to generate curious connections which obliterate our geographically staked sense of distance and time. Thanks for the Scots Law citation, albeit from all the way across the wide whale roads of the Atlantic Ocean. Despite my increasingly diminishing legal professional capacity - which we might alternatively formulate as a gladsome release – I haven't quite given up my legalistic orientations. Its too fascinating.Cheerio,LPW

  7. Antonin Pribetic Says:

    Thanks for visiting my blawg, Lallands Peat Worrier and commenting on my Blawg Review #250. It's a sair fecht, but haste ye back.

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