Blawg Review 325.4

File:BM, AES Egyptian Sulpture ~ Colossal bust of Ramesses II, the 'Younger Memnon' (1250 BC) (Room 4).jpg

The Younger Memnon statue of Ramesses II in the British Museum. Its imminent arrival in London may have inspired the poem (Image via Wikipedia)

Shelley’s “Ozymandias”

I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desart. Near them, on the sand,
Half sunk, a shattered visage lies, whose frown,
And wrinkled lip, and sneer of cold command,
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them and the heart that fed:
And on the pedestal these words appear:
“My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!”
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare
The lone and level sands stretch far away.

“Ozymandias”, the famous sonnet written by English romantic poet Percy Bysshe Shelley (1792–1822), was first published in the January 11, 1818 issue of The Examiner in London, and later in Shelley’s 1819 collection “Rosalind and Helen, A Modern Eclogue; with Other Poems”. It  also forms part of a posthumous compilation of his poems published in 1826.

Percy Bysshe Shelley imbibed his radical philo...

Written in atypical iambic pentameter, “Ozymandias” is said to have been inspired by the British Museum’s acquisition of a large fragment of a statue of Egyptian pharaoh Ramesses II from the thirteenth-century B.C.E:

Weighing 7.25 tons, this fragment of his statue was cut from a single block of two-coloured granite. He is shown wearing the nemes head-dress surmounted by a cobra diadem.

The sculptor has used a slight variation of normal conventions to relate his work to the viewer, angling the eyes down slightly, so that the statue relates more to those looking at it.

It was retrieved from the mortuary temple of Ramesses at Thebes (the ‘Ramesseum’) by Giovanni Belzoni in 1816. Belzoni wrote a fascinating account of his struggle to remove it, both literally, given its colossal size, and politically. The hole on the right of the torso is said to have been made by members of Napoleon’s expedition to Egypt at the end of the eighteenth century, in an unsuccessful attempt to remove the statue.

Ozymandias also featured prominently in a trailer for an episode of Breaking Bad:

As Katy Waldman at Slate writes,

Here is the joke, says [Romantic scholar Paul] Fry: Confronted by such a tapestry of unreliability, we think we have attained insight into Ozymandias. The sculptor was taken in too, when he tried to commit a version of his ruler to stone. But time warped his handiwork just as surely as it will reframe Shelley’s poem, muddle our recollections, and drag the leavings of our own lives through “lone and level sands.” (Are you laughing yet?) For Fry, in other words, “Ozymandias” links together a chain of egomaniacs who believe they have arrived at a stable form of knowing. It coaxes us into a glib understanding of its subject that it does not necessarily share—and the trench between that easy, seductive judgment and the truth (whatever it is) is the real irony.

Ramses II has not, actually, been forgotten. Nor was his ghost receding in Shelley’s time: The ancient Egyptians fascinated Napoleon, who brought archeologist-historians with him when he invaded Egypt in 1798, and Lord Byron, whose journals are littered with speculation about long-dead civilizations. (In fact, Byron’s adventures in Greece, Albania, and Turkey the year before the sonnet was written led Fry to wonder whether this “Napoleon of verse” was the “traveler from an antique land.”) And while the 18th-century “relic” poem—of which “Ozymandias” is an exemplar—has a memento mori, all-is-ephemeral vibe, sonnets traditionally celebrate the perseverance of art across centuries, even across the threshold separating life from death. So if Ozymandias and his sculptor were not right, they weren’t entirely wrong, either.

No, not that Ozymandias, but I did enjoy watching “The Watchmen”.

So why choose Ozymandias as the theme for my posthumous Blawg Review tribute?

Aside from the obscurity of the multiple perspectives—the anonymity of the story-teller, the traveller and the subject— Shelley’s poem presents an intriguing counterpoise to the late Editor of Blawg Review, our beloved “Ed Post”. Ed could be  the speaker who meets the traveler, or the traveler himself. Ed was peripatetic both in real life and virtual life. He met many of us, yet none, as far as I know, knew him. He travelled extensively and was fond of posting photographs, always obscuring his features, so the eye was forced to see a broader perspective.

One thing does remain. While traditional legal writing in the form of law reviews, case comments and firm newsletters may end up in the dustbin of legal history, legal blogging (blawging) is vital to the future of the legal profession   Blawg Review remains a monument to Ed’s legacy, his dedication and  perseverance. Ed Post was an important part of the Blawgosphere.  We may not really know the man, his family or his close friends, but we know Ed through Blawg Review and how it brought us together, if only for a time. We, the members of the Blawgosphere, will remember Blawg Review:

Monuments to great kings fade; mighty empires rise, decline and inevitably fall. All that remains is art…and the art of blawging.

And so, dear readers, what follows are some of last week’s posts that represent the best of the Blawgosphere:

In a post entitled “Too Much Transparency”, Scott Greenfield at Simple Justice exposes the fallibility of  judges and judicial-decision making. Highlighting Judge Posner’s apparent admission that his decision in the controversial 2007 case involving Indiana’s voter ID law was wrong, Scott poses a broader question:

While it’s good to know that Judge Posner shares, at least to the extent that serves his interests, a concern about the lack of empiricism in the courtroom, and to that extent his transparency serves to enhance our sense of integrity in the legal system in that the courts may be coming around, it’s unfortunate that at the same time, he cut his legs off by backtracking and spinning when butthurt got the better of him.

So while I still maintain that a certain amount of transparency is good and provides a positive benefit, there is a line beyond which a judge shouldn’t go.  This was it, and the lesson comes at Judge Posner’s expense.

Over at slaw.ca, Allan Rouben writes about the fallibility of Law Society of Upper Canada prosecutors following a hearing that lasted over 2 ½ years and 130 days of hearing, ultimately leading to a dismissal of all charges against two Torys LLP lawyers:

The reasons for judgment raise this basic question: Why did the Law Society continue with the prosecution for as long as it did?

No doubt, the Law Society had ample grounds for looking into the matters and perhaps commencing the proceedings. The transactions at issue, particularly the non-competition payments to principals of the company, were under intense scrutiny. However, that is not the end of the matter. Prosecutors have a continuing duty to review the evidence to ensure that the grounds which justified the laying of a charge continue to exist.

 Over at The Volokh Conspiracy, Will Baude writes about an amusing, but effective, response from criminal defence counsel to  a Tennessee prosecutor in the case of State v. Powell, who had apparently moved to preclude the defense from referring to his side as “the government.”

The government has moved to ban the word “government.” The State of Tennessee offers precisely zero legal authority for its rather nitpicky position, and the defense can find none. The Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff’s proposed ban on speech would violate the First Amendment. The motion should be denied.

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code. First, the Defendant no longer wants to be called “the Defendant.” This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. D.P. The word “defendant” should be banned. At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title “Mister.”

Alternatively, he may be called simply “the Citizen Accused.” This latter title sounds more respectable than the criminal “Defendant.” The designation “That innocent man” would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a “lawyer,” or a “defense
attorney.” Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the “Defender of the Innocent.” This title seems particularly appropriate, because every Citizen Accused is presumed innocent.

Alternatively, counsel would also accept the designation “Guardian of the Realm.”

Further, the Citizen Accused humbly requests an appropriate military title for his own
representative, to match that of the opposing counsel. Whenever addressed by name, the name ”Captain Justice” will be appropriate. While less impressive than “General,” still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.

Along these same lines, even the term “defense” does not sound very likeable. The whole
idea of being defensive, comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself “the Resistance.” Obviously, this terminology need only extend throughout the duration of the trial — not to any pre-trial motions. During its heroic struggle against the State, the Resistance goes on the attack, not just the defense.

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance,
primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

Alice Wooley at slaw.ca writes about the antithesis of ethical lawyering: Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

Rick Horowitz at Probable Cause, in response to Scott Greenfield’s post:  For Whom The Light Shines,  considers the ethos of “Spewing Over Systemic Failure” and remarks,

Because I have been trying to restrain myself from spewing, I have found it hard to blog. Whenever I start to write about something that I think needs to be talked about, the bile begins to boil, and I start to spew.

My experience — I am in courtrooms in California almost every day of the year — is that the system is a complete failure at what it is supposed to be doing. In fact, it is worse than a failure, because it is creating the very thing that it should be trying to prevent: a lawless society.

You see, no one really needs me to say that “if the government will not follow its own laws, neither should anyone else.” It’s just the natural consequence of an arbitrary system whereby a particular group of people — judges, police officers, prosecutors, politicians, the oligarchs of modern America — lords it over the rest of us. It is what happens as people chafe under those who believe they are our “Overlords.”

Mark Bennett, over at Defending People, relates his tremendous victory before the Texas Court of Crim­i­nal Appeals that “cul­mi­nated four years of appel­late lit­i­ga­tion on the uncon­sti­tu­tion­al­ity under the First Amend­ment of the “talk­ing dirty” por­tion of Texas’s “online solic­i­ta­tion of a minor” statute, Texas Penal Code Sec­tion 33.021(b).” Mark then outlines “What Happens Next”.  Kudos to a superb criminal defense lawyer and First Amendment advocate.

The allonymous Gideon at a public defender analyzes the recent reversal of fortune and new trial ordered for Kennedy cousin, Michael Skakel due to the alleged ineffectiveness of counsel by famed celebrity lawyer, Mickey Sherman:

The real question, of course, is whether this will survive appellate review. I think the fact that it clocks in at 136 pages already gives the ruling a strong chance of survival4. Think of the work it will take to undo it. It’s possible – and if there ever was a case where it would happen, it would be this – but I think it’s somewhat unlikely. Further bolstering its chances are the other parts of the ruling where Judge Bishop finds either that Sherman did nothing wrong or that he did, but it didn’t affect the trial.

However one cannot come away without the sense that Sherman’s performance was so below par that it fundamentally affected the reliability of the outcome and called into question the fairness of the trial.

And that is something we should all be concerned about, whether the defendant is a Kennedy cousin or just your cousin.

Ken White at Popehat provides an authoritative First Amendment and prior restraint analysis in his post: Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction. Ken concludes:

So What?

Why should you care that Roger Shuler — a crazy, creepy, vexatious litigant who may well have defamed Mr. Riley out of political spite — has been arrested for defying an injunction?

You should care because the injunction was absurdly unconstitutional, and apparently derived through raw political power. You should care because such abuses will never be confined to those few people we can all agree are creepy, crazy, and vexatious. You should care because every time they are successful such abuses become easier and more common. You should care because each such case is another line in a footnote in thenext prior restraint order by the next Judge Neilson urged by the nextRiley, prohibiting someone else on pain of jail from speaking. You should care because each such case emboldens and encourages plaintiffs to seek prior restraint against criticism. You should care because in our legal system no man is an island, and each man’s censorship diminishes our collective right to speak, because we are all involved in the legal norms that protect freedom.

I hope that Roger Shuler’s case will attract attention and some competent counsel. Orders such as Judge Neilson’s should not issue without consequence — whether that consequence is reversal or infamy. Mr. Riley should get his day in court, and should — if he can convince a jury that Roger Shuler defamed him — collect appropriate relief. But we should not stand by while he obtains prior restraint that weakens all of our rights.

By the way, though Roger Shuler wraps himself in the First Amendment and bemoans how defamation suits against him are intended to chill speech, he’s a fair-weather friend of free speech. When vexatious litigant and unrepentant domestic terrorist Brett Kimberlin abused the legal system to silence his political opponents, Shuler reacts with amusement and applause — because Kimberlin hates the people Shuler hates and mouths the words Shuler wants to hear. But he wants you to be outraged that political opponents are abusing the court system to silence him. In short, Shuler is a hypocritical asshole. That’s okay. In addition to protecting crazy, creepy, vexatious people, the First Amendment also protects hypocritical assholes. Good thing for most of us, really.5

Fellow international litigator, Ted Folkman at Letters Blogatory, comments on a New Jersey jurisdictional decision involving a patent infringement lawsuit against a Quebec defendant. Alas, no reference to poutine, curling or maple syrup may be found in the U.S. District Court decision.

For those with an interest in environmental law, jurisdiction, political intrigue, ghostwriting, bribery and judicial corruption, you need look no further than Ted Folkman’s insightful series of posts on the Lago Agrio saga and Chevron’s multi-jurisdictional efforts to block enforcement of  a $19 Billion Ecuador judgment. Ted’s recent post:  Lago Agrio: More on the Corroboration of Judge Guerra’s Claims is a must read, as is Manuel A. Gómez’s post at Opinio Juris called: The “Amparization” of the Justice System in Latin America and International Arbitration.

Please read the next in the series of the Blawg Review tribute by my friend and colleague, Brian Tannebaum at My Law Licence:

http://mylawlicense.blogspot.ca/2013/11/blawg-review-3255.html

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