I previously had the privilege of hosting Blawg Review No. 250 employing the theme of the Bushidō (武士道), or “the way of the warrior,” the moral code of the Samurai.
Similar to Christopher Columbus, who on this date back in 1492, received his commission of exploration from Spain; I invite you to join me on this Blawg Review journey, where we will explore two conflicting themes: The Power of Myth and the Myth of Power.
Before we embark, Canadian readers are reminded that April 30th is also tax filing day. You’re welcome.
The Power of Myth
Lawyers are essentially story-tellers. From drafting a contract, preparing a will, writing a legal brief, or addressing a jury, effective lawyers employ the art of persuasion.
In law school, most lawyers are taught Aristotelian method of persuasive argument based upon Aristotle’s On Rhetoric:
Ethos: credibility (or character) of the speaker
Pathos: emotional connection to the audience
Logos: logical argument
Beyond these three modes of persuasion, is a less used fourth mode: Mythos: noun \ˈmi-ˌthōs, -ˌthäs\ plural my·thoi.
Merriam-Webster online defines Mythos as:
2 : a pattern of beliefs expressing often symbolically the characteristic or prevalent attitudes in a group or culture
Life is about the struggle for or against power: financial, social, political, legal. Those who have power, crave more. Those who are powerless, yield or rebel.
Abraham Lincoln once said:
“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”
It is unsurprising, then, that history recalls many of whom have died fighting against the powers that be; whether the struggle is about property, class, religion, or money.
Where power resides in the State; wielded by the wealthy, the privileged, and oftentimes, the corrupt; lawyers play different roles in the theater of the Rule of Law. Some are foot soldiers, others, field marshals. The few who are elevated to the Bench become judges; some forgetting from whence they rose up.
Yet, all lawyers, ultimately, must either succumb or rebel against the myth that the law treats everyone equally.
The Rule of Law is merely an ancient meme, a totem, a datum stake thrust deep into the collective unconscious, forged in the fading histories of rebellion and revolution. When on this day in 1315 – Enguerrand de Marigny, a French chamberlain and minister of Philip IV the Fair. was arrested by Louis X of France at the instigation of Charles of Valois, he faced twenty-eight articles of accusation including charges of receiving bribes. He was refused a hearing and was almost spared only banishment to the island of Cyprus, until Charles then brought forward a charge of sorcery, condemning him to be hanged on the public gallows at Montfaucon, protesting that in all his acts he had only been carrying out Philip’s commands.
Was this a precursor to the Nuremberg defense or merely another example of betting on the wrong horse? As an aside, April 30th, 1945 also marks deaths of Adolf Hitler and Eva Braun, both of whom committed suicide in Das Führerbunker, as Soviet troops closed in on the Reich Chancellery; a fitting and deserved triumph of democracy over tyranny.
Sharing a similar fate to de Marigny, is my Croatian compatriot, Petar Zrinski, (Hungarian: Zrínyi Péter), Croatian Ban (or Viceroy) and writer who died on this day in 1671. A member of the Zrinski noble family, he was noted for his role in the attempted Croatian-Hungarian Zrinski-Frankopan Conspiracy. Petar had succeeded his brother Nikola Zrinski as Ban of Croatia after the latter died in the woods near Čakovec, fatally wounded by wild boar ( rumours claiming he was murdered by Habsburg agent were never substantiated). After the revolt collapsed, Zrinski and his co-conspirator, Fran Krsto Frankopan went to Vienna seeking a pardon from emperor Leopold I of the Habsburg dynasty. Initally offered safe conduct, they were quickly arrested and then sentenced them to death for high treason.
For Petar Zrinski the verdict was read as follows:
…he committed the greater sin than the others in aspiring to obtain the same station as his Majesty, that is, to be an independent Croatian ruler, and therefore he indeed deserves to be crowned not with a crown, but with a bloody sword. 
According to the Wikipedia entry:
In the view of Emperor Leopold, the Croats and Hungarians had forfeited their right to self-administration through their role in the attempted rebellion. Leopold suspended the constitution – already, the Zrinski trial had been conducted by an Austrian, not a Hungarian court – and ruled Hungary like a conquered province. Stephan Vajda, Felix Austria. Vienna, 1988, p. 136 (via Wikipedia)
To add further insult, Nikola Zrinski was in the running in the the Stephen Colbert Bridge-naming contest, but lost out to Stephen Colbert, only to have the bridge renamed “Megyeri Bridge“, even though that name did not make it to the second round.
April 30th also marks an auspicious day in American history In 1789, where on the balcony of Federal Hall on Wall Street in New York City, George Washington took the oath of office to become the first elected President of the United States.
In his First Inaugural Address, Washington said:
The preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.
Later that year, in a Message to the US Congress (9 July 1789), Washington eloquently wrote:
In executing the duties of my present important station, I can promise nothing but purity of intentions, and, in carrying these into effect, fidelity and diligence.
Soon thereafter, on April 30th, 1803, Manifest Destiny called upon our American cousins to purchase the Louisiana Territory from France for $15 million, more than doubling its size. Reports that “Freedom Fries” were part of the deal are unsubstantiated.
Some historical events are marked by epiphanies and correspondences: April 30th 311 marks the end the Diocletianic Persecution of Christians in the Roman Empire….while April 30, 1966 marks the establishment of The Church of Satan at the Black House in San Francisco, California.
The Myth of Power
What then is the “Rule of Law”? Is it a means of enforcing law and order? Is it about limiting abuse of governmental power? Is it about protecting individual liberties and freedoms?
Recently, Dr Eoin O’Dell, a Fellow and Senior Lecturer at the School of Law, Trinity College Dublin over at http://www.cearta.ie/ (the irish for rights) argued that “liberty, democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and that, not only are there the traditionally understood strong liberal and democratic justifications for freedom of expression, there are also equally strong free speech justifications founded in the rule of law.” He cites a definition by the late Law Lord,Tom Bingham, in his final book The Rule of Law (Allen Lane, 2010):
The law must be accessible, and so far as possible intelligible, clear and predictable (p37)
Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion (p48)
The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation (p55)
Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers[,] and not unreasonably (p60)
The law must afford adequate protection of fundamental rights (p66)
Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve (p85)
Adjudicative procedures provided by the state should be fair (p90)
The rule of law requires compliance by the state with its obligations in international law as in national law (p110).
“The law must be accessible, and so far as possible intelligible, clear and predictable”
UK Blawger Amanda Bancroft—who writes the excellent “Beneath The Wig” blog and is short-listed for this year’s Orwell Prize in Blogging—provides a balanced analysis of the recent controversy over the sentencing of Sheffield United footballer Ched Evans to five years for the rape of a 19 year old woman and subsequent outing of the rape victim on Twitter:
“The Director of End Violence Against Women, Holly Dustin, issued a statement saying:
“It has long been law that rape complainants are protected by lifetime anonymity and those who have named her have been reported to the police for committing a criminal offence. This raises serious questions about the adequacy of the criminal justice system to deal with offences that occur online and we are calling for an urgent review of laws and practices.”
Does it? Or actually does this statement simply display a misunderstanding of how law works?
Law isn’t a shield preventing a bad thing happening – it cannot stop people behaving in a certain way; it can only simply prescribe a punishment or remedy should people behave in a certain way. Our modern digital world enables us to see more easily behaviour we knew existed in any event. We have already criminalised that behaviour because we knew it existed.
In addition, the provision for life-long anonymity isn’t the only law which would apply to those tweets – there is the possibility of offences having been committed under section 127 Communications Act 2003, if the tweets can be deemed to be grossly offensive or of an indecent, obscene or menacing character, and under section 4A Public Order Act 1986 if the tweets can be deemed to contain threatening, abusive or insulting words.
While I have every sympathy for the complainant in this case, we really must stop and think about calling for new laws every time something we don’t like happens – especially when the call goes out before the criminal justice system has even had the opportunity to show what it can do in this situation. It really isn’t helpful, and it lessens the remainder of the message.”
“Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion”
Gabe Rottman at the ACLU Blog offers some great legal tips to the Occupy Movement in his post: Ready to Occupy? What You Need to Know about H.R. 347, the “Criminalizing Protest” Law.
Over at Probable Cause, Rick Horowitz asks “Who Says Crime Doesn’t Pay?” and indicts the entire criminal justice system:
Our legal system is corrupt. It is rotten to its core. And by “to its core,” I mean “judges,” who have become, at best, nothing more than rubber stamps on acts of the government; at worst, they go a step further and become the primary governmental tools for oppression.
They are not alone in constituting the corrupt core, of course. It is a witches’ brew comprised of many elements….”
“The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”
In his post at Simple Justice, “So Cops Lie, Eh?”, New York criminal defense lawyer Scott Greenfield has little patience for the myth of the law-abiding police. In his post, Greenfield comments on a recent Toronto Star article exposing persistent police prevarication:
The message sent is significantly different than the message received. Rarely do we find officers “visibly nervous, papers shaking in their hands.” If only this was the case. The cops who is nervous is either a rookie or suffering from bad sushi. The norm is clear, concise testimony presented with assurance and aplomb. It just happens to be a complete lie, but they feel no qualms about the fabrication as they are certain they are on the side of truth and justice. After all, the defendant is guilty and it’s their job to make sure he gets convicted. What’s another lie to make justice happen?
The irony is that we rely on oaths, as if we are still living in the Victorian era. Police officers take an oath of office, swearing to uphold the Constitution and the laws of their jurisdiction. On the witness stand, they swear to “tell the truth, the whole truth, and nothing but the truth.” And we, in our manifest naïveté, pretend that means they’re going to tell the truth.
Because why? They will feel just horrible for lying on the stand? They won’t sleep that night? They will have betrayed the higher being who guides their moral compass? Grow up.”
“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers[,] and not unreasonably”
Foster care advocate, John Dunn at Foster Care News relates a disturbing story involving the Children’s Aid Society of Ottawa, which has been involved with a parent in Ottawa for approximately two years. The parent complied with Society’s requirements and the Society recently moved to close his file with the court. The problem? A rogue children’s aid worker who won’t take no for an answer:
The court ordered the Society’s supervision order to be terminated and full custody of the child returned to the parent, however, since then, we have been told by the parent that the Society, through one of it’s workers, Mohammed Said, a child protection worker who is not registered with the College of Social Workers and Social Service Workers, called the parent to say that they want to come to the parent’s home for a visit, to see how that child was doing, and if the parent does not comply, things won’t go well for the parent and his child.
As a result, the parent has filed with the court, a motion seeking the following DECLARATIONS and ORDERS.
Legendary UK Law Blogger, ‘Charon QC’ (Mike Semple Piggot) has some nice words to say about his fellow UK lawyer, blogger and journalist, David Allen Green, in a post entitled: Law review: A study in good legal blog writing: NightJack by David Allen Green. Perhaps someday Green will unblock me on Twitter so I can write a nice post about his Jack of Kent Blog. For those following the Leveson Inquiry and the machinations of Rupert Murdoch in the wake of the phone hacking scandal, I highly recommend you also read Carl Gardner’s blog: Head of Legal. In a post entitled “Hunt’s handling of the NewsCorp-BSkyB deal was unlawful”, Gardner adeptly summarizes the applicable law and unabashedly concludes:
The point isn’t whether Jeremy Hunt had to act “quasi-judicially”. The point is that he had a duty to act fairly. But he appears to have been very much on NewsCorp’s side, and to have cooperated and colluded with them secretly in steering the decision-making process in NewsCorp’s favour. At the very least he allowed his adviser to do so by a culpable inattention to what was being said and to whom.
There must be, surely, at least a real possibility Jeremy Hunt was biased. That being so, he acted unlawfully in his conduct in this case.
“The law must afford adequate protection of fundamental rights”
Ken White at Popehat engages the issues of freedom of speech regularly. Sometimes, free speech is drowned out by keyboard warriors and internet trolls and takes on a more sinister life of its own. Compare this highly entertaining and persuasive ‘cease and desist’ letter written by Ken White posted at regretsy.com. Unfortunately, there are some who are far too willing to cross the line into unlawful threats, as both White and Greenfield point out.
RollOnFriday reports that global law firm “Baker & McKenzie is currently on the receiving end of an internet backlash after allegedly using rather heavy handed tactics against a Canberra blogger and Hasbro NERF gun obsessive.”
Where most blawgers benefit from constitutionally protected free speech and a free press, others do not. For example, a Thai journalist faces 50 years in jail because she didn’t delete anti-monarchy comments quickly enough. The ephemera of social media blogging, tweeting and Facebooking is highlighted in an Inforrm Blog post about a recent Malaysian court decision ordering a journalist to pay $100,000 in damages in a Twitter libel case.
Perhaps the best advice for blawgers comes from Professor Mark Pearson, author of the recently published book: “Blogging and Tweeting Without Getting Sued” who provides a useful social media legal risk 6-point scale.
“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”
George Washington once wrote:
“Few men have virtue to withstand the highest bidder.”
(Letter to Major-General Robert Howe (17 August 1779), published in “The Writings of George Washington”: 1778-1779, edited by Worthington Chauncey Ford (1890)
“Access to Justice” is another legal myth often trumpeted by law reformers. Few speak of “Equal Access to Justice” or the “Justice of Access”. Most of the time, the Blawgosphere is inundated with banal posts by self-styled law futurists; the Isaac Asimovs of the Legal Profession focus on alternative billing, while clients are transmogrified into faceless consumers in need of protection from the largesse of greedy lawyers. As a fan of free market competition, I think lawyers are regulated enough. If your fees are too high for the market to bear, there is always a social media law marketing gig waiting. Proportionality is the key when it comes to the economics of litigation. Construction law litigator and fellow Canadian blawger, Adam Zasada commenting on a recent Ontario decision involving excessive legal fees, cogently remarks:
This case, and countless others like it, exemplifies the need for both prospective Plaintiffs and Defendants in construction litigation to think very hard before they “dig in” for a long fight over what is, in the context of litigation, not a lot of money. Some people and companies are rich enough to have the privilege of throwing economics out the window in favour of principle – most, however, are not.
From a lawyer’s perspective, this case bolds, underlines, and then highlights the need to have very frank and very clear discussions with our clients about the potential course and costs of litigation – particularly when there are relatively small amounts of money is dispute – so that our clients can make informed decisions about how they want to proceed and how aggressive they want to be in trying to settle their disputes. Sometimes “small money” litigation will still go the long, expensive distance but at least the end result will then be no surprise to our clients…
Over at his informative and entertaining New York Personal Injury Attorney Blog, Eric Turkewitz discusses the recent implosion of BigLaw firm Dewey LeBoeuf, and offers some sage advice to solos and small firms:
Now this is the part that’s important: The time to think about that financing is not when you need the money, but when you don’t. If you wait until you are financially strapped and then go to the bank and ask for a line of credit, they will see your financial distress. And — this comes as a surprise to many — banks don’t want to lend money to people who really need it. They want to lend the money to those who look comfy and safe. Because the bank would like to get its money back one day with a little interest. I learned this one the hard way many, many years ago when I was a puppy lawyer.
The time to open that line of credit is: As soon as possible. This is true especially if you don’t need it. Because if you have any success at all as an attorney, one day you will. So open the line, and get occassional increases in it. Five years down the road when the money is truly needed, you’ll be ready.
The last thing a lawyer wants is to be desperate for money.That causes bad legal decisions. All of a sudden you might find yourself thinking that that auto case you took in three years ago and worked your butt off on and which you think your client should be entitled to the full 250K in insurance that is available, might be the one to settle now for the 100K offer. And you don’t want to be that lawyer. Ever.
At Philly Law Blog, Jordan Rushie offers some perspective recounting his first law job.
“Adjudicative procedures provided by the state should be fair”
Over at Human Rights in Ireland, Anne Neylon reports on the Court of Justice of the European Union (CJEU) judgment of the Grand Chamber, Kamberaj v IPES. Dealing with the equality provisions in Article 11 of the Long Term Residents Directive, as well as Article 34 of the EU Charter which relates to right to social and housing assistance, preclude a Member State from treating long-term resident third-country nationals and EU citizens differently for the purposes of the provision and allocation of housing benefit. Neylon concludes,
The judgment however still does not guarantee third country nationals’ access to all rights to which Union citizens are entitled. Nonetheless, it is interesting to note the manner in which the court uses the provisions relating to access to social assistance under the EU Charter alongside the concept of integration as it provided for in the LTR Directive to limit the ability of the state to deny access of long-term residents to certain rights enjoyed by EU citizens.
In recent years, it has been suggested that the idea of integration has been used to limit the rights of immigrants and refugees living in Member States by requiring them to undergo integration courses and tests, in some cases denying access to a long-term residence status if such requirements are not met. The ruling in Kamberaj however emphasises how the concept of integration can also be used to limit the power of Member States from discriminating against long-term resident third country nationals in terms of their access to social assistance.
Back in the USA, in a provocatively titled post: “The Real Crime About Prison Masturbation” Norm Pattis juxtaposes the dehumanizing effect of incarceration with the absurdity of a recent effort to criminalize prisoner’s onanistic behaviour.
Speaking of procedural fairness, or lack thereof, on May 9th, 2012, the Canadian Bar Association will host a program, chaired by Omar Khadr’s Canadian counsel, Brydie Bethel and John Norris entitled “Omar Khadr and the Meaning of Citizenship”.
“The rule of law requires compliance by the state with its obligations in international law as in national law”
Back in 2009, President Barack Obama, still basking in the afterglow of his new Presidency, released a Talking Points Memo welcoming senior staff. This is what President Obama pledged to the American people on the Rule of Law:
The directives I am giving my administration today on how to interpret the Freedom of Information Act will do just that. For a long time now, there’s been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.
To be sure, issues like personal privacy and national security must be treated with the care they demand. But the mere fact that you have the legal power to keep something secret does not mean you should always use it. The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.
I will also hold myself as President to a new standard of openness. Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.
Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency. [emphasis added]
On this day 22 years ago, Indonesian special forces assassinated, WestPapua nationalist & cultural leader Arnold Ap. On this day 8 years ago, the U.S. media released graphic photos of American soldiers abusing and sexually humiliating prisoners at Abu Ghraib prison.
Despite President Obama’s florid rhetoric, the Bush Doctrine remains and the interminable War on Terror continues to devolve into a Theater of the Absurd.
The lack of government accountability is taken on by Alex Abdo at the ACLU Blog in Twisted Logic and the New Book by the CIA Spy Who Destroyed Torture Tapes, and Glen Greenwald at salon.com in Crime boasting for profit.
Raffaela Wakeman at LawFare in a post entitled “Defense Counsel File Motions Closed-Door Military Commission Proceedings”, notes defense counsel for the five alleged 9/11 co-conspirators have filed several motions challenging the closed-door nature of some military commission proceedings.
Texas criminal defense lawyer Mark Bennett “doesn’t suffer fools gladly”. Over at Defending People, the title of the post says it all:” TSA Agents Violate Texas Law.
Dan Hull at What About Paris? notes that in Liberia: Reaction to Charles Taylor’s conviction at The Hague is mixed. Over at Opinio Juris, Kevin Jon Heller criticizes inaccurate media reporting Taylor is the first head of state judged by an international tribunal. Heller observes,
They should really do their research: the Nuremberg Tribunal convicted Karl Doenitz, the Commander in Chief of the German Navy, who served as the President of Germany for 23 days following Hitler’s suicide. Doenitz, Hitler’s chosen successor, was no mere figurehead; among other things, he ordered Alfred Jodl to unconditionally surrender the German armed forces to the Allies on 7 May 1945.
Get it right, media people! I’m keeping a list…
In another great Simple Justice post, Scott Greenfield takes on the issue of the New York State Bar Association ethics opinion on lawyers being mean to other lawyers. Greenfield charmingly writes,
“Are you people nuts?
Lawyers are perpetually accused of lacking the guts to out unethical practitioners within the profession, clucking about how bad some other lawyer is while being too chicken to grieve for fear that their fellow lawyers will think ill of them or that they live in a glass house. There may well be a very real question as to whether another lawyer’s conduct is so horrific that it merits a grievance, and we shouldn’t be rushing to file complaints about others just because they pissed us off on a case or called us a mean name (unless you’re a very delicate flower, in which case you might consider getting an office next to the appellate division).
But when a lawyer’s conduct is bad enough to justify a blog dedicated to how much you hate him, it’s time to put on your big boy pants and do something a bit more meaningful about it. We have a duty under Rule 8.3(a) to report our own, when there is a “substantial question” about the lawyer’s honesty, trustworthiness or fitness to practice. If he’s blog-worthy, my guess is a substantial question exists.
The issues raised are foundational. Don’t lie. Don’t deceive. Don’t misrepresent. Do lawyers really need to be reminded of this? Or is this about using the internet, the “truth-free zone” where anything goes and anybody can say anything, whether about themselves or others?
Or is this a question about whether lawyers are weenies, telling the truth but fearful that saying mean things will violate the rule against being a hater?”
Scott Henson, writing under the nom de plume, Grits for Breakfast, relates a story about a judge in Denton County, Texas who found two prosecutors had withheld evidence and committed prosecutorial misconduct, banning the pair from his courtroom for the offense and asks:
“My question: Given that the only prosecutor in memory publicly sanctioned by the state bar was Terry McEachern from the infamous Tulia drug stings – and that a recent survey of prosecutor misconduct findings by Texas appellate courts found no examples resulting in public state bar discipline - what are the odds the state bar publicly sanctions either or both of these prosecutors?
In some welcome news, Amnesty International thanks Governor Malloy for abolishing the death penalty in Connecticut. The allonymous Gideon at ‘a public defender’ blog, revisits the 25th anniversary of the United States Supreme Court decision in McCleskey v. Kemp, which, in his words, signifies “one if its most shameful opinions in recent history”… in which it willfully turned a blind eye to racial discrimination in death penalty cases and prohibited citizens from raising claims of racial bias leading to the imposition of death sentences…”
Down Under, Australian blawger and lecturer at James Cook University, Kate Galloway asks: “What is the ‘Truth About Marriage?’”, noting “ As I’ve written here before, marriage is, in my view, an institution of the law that seeks to subjugate women. In a related context, in my view, it is a relationship concerning property. Yet there is a very strong notion that marriage is so much more than this.”
To find some more great Australian blawgs, check out the list compiled over at Amicae Curiae.
Finally, departing from Blawg Review protocol, I commend readers to check out a recent guest post by Charles E. Johnson at The Trial Warrior Blog, which exemplifies the importance of trying to help others in need.
Thanks to Ed at Blawg Review for providing me with some great links that make up this modest effort. The next Blawg Review No. 320 slot remains open. I encourage you to take on the challenge. Here is more information on hosting a Blawg Review.