Signing Off

I’m sad to say that this is my last post for the blog.  I started this blog together with my solo law practice.  But I am moving abroad soon and will be closing down my law practice as well.  So I think it’s fitting that I should call it quits with the blog since the vehicle that brought it to life will no longer be around.  Not that I won’t have another blog but if I do it will be very different — in content at least — than what’s been written in this forum.

And what better time to say goodbye than on Election Day.  If there’s one thing I’ve learned writing for this blog over the past seven years it’s that change — in perspectives, in policies, and in humanity — comes slowly if at all.  Worse yet not all of that change is of the positive sort.  Nothing about this current election contest and the two candidates vying for the presidency inspires hope on either front.

If you’re looking for inspiration and hope for a brighter future though I have just the thing for you.  It’s the text of a speech given by one of the greatest jurists to have graced the bench of the federal courts.  His name is Learned Hand, and this is the speech, entitled “The Spirit of Liberty”, that he gave in Central Park on May 21, 1944 before, according to my source, “many thousands of people … including a large number of new citizens”:

We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion.  Some of us have chosen America as the land of our adoption; the rest have come from those who did the same.  For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land.  What was the object that nerved us, or those who went before us, to this choice?  We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves.  This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty?  I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.  These are false hopes; believe me these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.  While it lies there it needs no constitution, no law, no court to save it.  And what is this liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will; it is not freedom to do as one likes.  That is the denial of liberty, and leads straight to its overthrow.  A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

What then is the spirit of liberty?  I cannot define it; I can only tell you my own faith.  The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.  And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.

Thanks to everyone who has taken the time to read this blog.  I will miss writing for it even if I never really knew who, if anyone, ever read it.

Freedom’s Just Another Word for Nothing Left to Lose

If freedom means anything it means the right to commit violence in another person’s name.  This is a lesson that’s been passed on from one generation to the next since the time this country was first founded.  And it’s starting to bear fruit like there’s no tomorrow.  Of course I am referring to Omar Mateen whose final moments perfectly capture what it means to be free in this country: going down in a blaze of glory with gun in one hand and cell phone in the other.

But he’s certainly not the first of his kind, nor will he be the last.  Indeed, when it comes to committing violence in the name of others Mateen and his ilk don’t hold a candle to the grown ups in the room.  Hillary warned the other day of the prospect that Trump might be given the nuclear launch codes (or is it that he gets to push a  button, or both?).  Now there’s the ultimate expression of freedom: a democracy that guarantees persons of every sex, class, race, and religion the right to launch a nuclear attack — except of course if you’re rich, white and misogynistic, in which case you only get a taste of what it feels like to commit mass genocide.  Perhaps that’s for the best.  Do we really want Trump anywhere near a computer let alone one capable of launching missiles halfway around the world?

Speaking of weapons of mass destruction, we launched a few of those in Japan not too long ago and as a result won the war for the rest of the free world.  For that we will never apologize for what we did to the Japanese.  Not in a million years.  Better to just lecture them on the evils and immorality of nuclear war.  Anyway, if we had to apologize to Japan, then we’d be in for a doozy of an apology tour.  Vietnam would want in on the action, as would Iraq.  And that’s just for starters.  Who knows what other groups or countries might have a bone to pick with the U.S. government?

I imagine the patrons at Pulse whose night out became a night to forget would have some questions for their representatives in government. And to get them started, here’s one of my own: what’s scarier, Trump with the nuclear launch codes or Hillary as Dubya-lite? Here’s another: where are the guns for the good guys? If the logic is that we should arm the good guys with guns so they can then neutralize the bad guys with guns and if the government can’t protect the good guys without guns from the bad guys with guns then why isn’t the government making more of an effort to get the good guys their guns?  And here’s one last one: don’t forget the bullets! Ok that wasn’t a question but who cares.

My Commencement Speech

It’s that time of the year again when universities call on dignitaries and luminaries to give commencement speeches to their students.  Most of these speeches will be rambling, pointless and sleep-inducing.  Others less so.  And a select few — 10 or less I’d suppose — will actually make an imprint on the minds of those who hear them.  Doubtful that I will ever be a part of the exclusive club of commencement speakers, I have written a commencement speech that I wish was given to me during my graduation, and which, if ever called on to speak at a commencement ceremony, I’d give, in one form or another, to others.

I am grateful to be your commencement speaker for today.  Thanks are in order to the powers that be at Acme College who in asking me to come give this talk thought I’d have something useful to say to all of you.  That itself is a tall order and I hope I will be able to deliver.  At the very least, I will keep my remarks brief, since the only  thing worse than a boring commencement speech is a long and boring commencement speech.  

This means I’ll spare you with the useless advice, given by many a commencement speaker, about following your dreams and giving back to the community that gave you this wonderful college degree.  Such advice is useless mostly because you are being told that you should be selfish and selfless at the same time.  Talk about sending mixed signals.         

Not that there’s isn’t a middle ground.  There surely is.  I can envision a scenario where you might be able to pursue your  passion rather than, say, the work that was expected of you by your family and your peers, but still have the wherewithal and resources, perhaps because of the nature of your work or because of your general approach to life, that allows you to care for those around you.  By the phrase “those around you” I don’t necessarily mean your family members, who are of course important persons in your collective lives, but also those you might never meet in your life but whose destines are necessarily tied to your own. 

But living life as a series of rules is a bore, isn’t it?  After all, we spend a lot of our childhood and even our adult lives trying to live lives with no rules, or trying to break the rules that are imposed on us, as we all should.  We wouldn’t be where we are today if it weren’t for the rule-breakers who have populated this Earth, and still do for that matter.   

So no more rules or advice as far as I’m concerned.  Instead, I’d like to pause a moment and give you something of a quiz.  My apologies to those of you who thought his or her days of exams were finally over.  But don’t worry it’s a fairly short quiz and you won’t be graded on it — not now at least.  The quiz consists of one multiple choice question that you answer based on a fictitious story.  Anyway, it’s easier to give it than to explain it, so here goes.

Imagine you are a top scientist at a large corporation.  The company you work for happens to be one that makes and sells cigarettes among other tobacco products.  You are paid handsomely for the work that you do at the company, let’s give it a nice neutral name like Fairwood or FW for short.  Because of your salary your wife doesn’t need to work, you can send your kids to good schools and generally provide for your family as you see fit, without worries about how much it might cost you.  While working at FW you notice that the company is manipulating the ingredients it puts into its cigarettes to make them more addictive but also more toxic.  You feel uncomfortable about this development but know that if you raise concerns about it to upper management you will be putting your job in jeopardy and hence the money you make to support your family.  The question you need to answer then is what would you do if you were placed in this situation?  Would you:

a) Keep your mouth shut and continue doing what FW asks you to do to refine its new and improved brand of cigarettes in hope that doing so will earn you the promotion you had long sought. 

b) Keep your mouth shut but actively look for a similar position with another tobacco company in hope that your new employer has yet to catch on to the practice pioneered by your former employer of jacking up its cigarettes thereby extricating yourself from the moral quandary you faced at FW but still maintaining the kind of prestige and salary you enjoyed there.   

c) Quit your job in protest and go public with what FW has been doing with its cigarettes thereby destroying your career as a tobacco scientist and perhaps your entire scientific career, and guaranteeing that you will never see the kind of money you were able to make at FW and to which you and your family have grown accustomed. 

If you haven’t already guessed this scenario is based on a true story.  In that  story our scientist friend goes for option (c) — that is, he quits in protest and goes public with the dirty deeds of his former employer but sees his personal life deteriorate. 

If you too went for option (c) then congratulations your moral compass is rightly aligned.  If you selected option (a) congratulations are also in order since you will be well on your road to becoming filthy rich and having the kind of lifestyle that comes with being filthy rich.  If you answered option (b) your future is more murky; millionaire is not out of the question but neither is a ticket to the unemployment or social security office after you’ve outlived your usefulness in corporate America. 

So where’s the middle ground I talked about earlier in my speech?  I ask because your answer to that question is much more important than how you might have answered the quiz  I just gave you.  It’s a question that you will have to answer over and over again as you get older and are placed in situations of increasing responsibility in relation to your family members, your friends and your colleagues.  And where you come out on this question will shape in one way or another the kind of community in which we all live. 

Thanks for giving me the opportunity to give this talk, which, as I promised earlier, I want to be brief.  In any event I’m not sure I have anything else of use that I could say to you.  As you can probably tell I’m still learning about what it means to be a responsible human being.  And the older I get the more I feel as if I know less and less about that, or at least it sure seems that way.  To quote the great Kurt Vonnegut: “Whenever my children complain about the planet to me, I say ‘Shut up, I just got here myself’.”

Take care and good luck. 

Say It Plain

I came across a video clip the other day.  It was shot inside a Florida Starbucks and showed a woman telling off the Governor there who had come inside the Starbucks with a retinue of aides and guards to, I assume, order a caffeinated drink.  She calls him an “asshole” among other things and when the Governor tries to defend himself she uses his words against him, albeit inartfully.

What struck me about the events depicted in this video is the fact that someone who had something bad to say about the Governor actually said it, not just in private, but to the Governor’s face, unprompted and at the spur of the moment.

This all brought to mind some observations George Orwell made in his book  The Road to Wigan Pier about the differences in behavior between the working class and the middle class.  One such difference, which Orwell described as “disconcerting at first” is the “plain-spokeness [of the working-class] towards anyone they regard as an equal” so that “[i]f you offer a working man something he doesn’t want, he tells you that he doesn’t want it; a middle-class person would accept it to avoid giving offence.”

Orwell doesn’t mention what an upper-class person would do in such a situation but there shouldn’t be much dispute about what that would be: anything he or she damn well pleases, but more often than not, something along the lines of what Orwell says a working-class person would do.

I can’t say for sure that the woman depicted in the video is working-class.  She’s at a Starbucks for one thing.  And she seems to be fiddling around with a laptop, not the tool of choice for most working-class people.  But that doesn’t tell me anything about her background, how and where she was raised, what schools she went to, her family’s wealth or lack of it, etc. etc., — i.e., the most important clues to one’s class affiliation.

And what about the Governor being an “equal” to his critic?  Could it be that the woman — whether because of her class leanings or something else — saw the Governor as her equal so that she felt less inhibited in speaking her mind; less so, at least, than if she had encountered someone she did not see as an equal.  News reports suggest that the woman was at one time a member of the city council and had a reputation for, well, plain-spokenness.

But whatever the actual reasons for the woman’s “plain-spokenness” I suspect that most people would have just clammed up if allowed the opportunity to speak one’s mind to a public official.  I know I would have.  Partially for reasons related to class but also because of fear — fear of being beaten up or thrown in jail, or both.

But isn’t that itself a reason not to stay silent?  Giving into this fear only emboldens those who profit most from it, with the end result being an increasingly oppressive and authoritarian society.  One might argue that the working class should be the ones to speak out against such an injustice since they would have “less to lose” in the event they became the subject of any retaliatory conduct.  After all they are more likely to be unemployed or do less lucrative work than someone in the middle class. But it’s hard to imagine anyone would take this argument seriously.  This is because the middle class have just as much to lose as the working class in a society whose primary means of stifling dissent is the threat of violence.  Indeed, the only winners in a society like that are the ones in power.  Everyone else is for the most part expendable.

At Least We’re Not Earth

Here’s a premise for a movie:

The Chinese become the first ones to discover the existence of alien life forms in outer space.  Without telling anyone they develop the capability to track down and capture these alien life forms and succeed in bringing one back to Earth for further research.  They hope that in doing so they will gain the upper hand in becoming the sole superpower on this planet, leaving all other countries in the dust.  The Chinese give the alien the code name Alibaba 2.0.

Unfortunately for the Chinese Alibaba 2.0 manages to escape because the Chinese, in their haste to extract information from the alien, leave out critical parts in building their alien containment and research pod.  Alibaba 2.0 ventures out on to the streets of China but no one notices because everyone is too preoccupied with his or her smartphone.

The alien realizes that it can discover the key to happiness on Earth if it can gain access to the data stored on all these smartphones.  Fortunately for the alien it is imbued with a knowledge of technology far superior to anything that has ever crossed the minds of even the most respected and sought after scientists then living on Earth.  Using this superior intellect the alien creates a master key that will allow it to unlock even the most sophisticated encryption system that has at that point been devised by man.  With this key the alien is not only able to gain access to data stored on every single smartphone everywhere, it can also look at the most secretive files of every government on the planet.

The alien is shocked by what it discovers.  Among other things, the alien learns that Hillary Clinton, then the president of the United States, still the most powerful country on Earth, is also an alien but from Moron, one of the richest and most hated planets in the galaxy.  The inhabitants of Moron made a fortune after they created and flooded the interstellar market with the first ever talking pet rock.  This fad was short lived however and led mostly to the proliferation of space junk around the galaxy.  The alien also discovers that the Third Reich had developed the first atomic bomb, way before the U.S. did, and had buried stockpiles of this stuff in North Africa, and that the U.S. knew this all along but told no one so it would be the country with the most lethal and abundant nuclear arsenal.

Alibaba 2.0 concludes that the fate of civilization on Earth is doomed.  So it comes up with a plan that will save mankind from itself.  The details of this plan are top secret and no one knows of them except the alien itself.  Alibaba 2.0 dies before it can execute its plan, however.

The exact cause of the alien’s death remains a mystery but some believe that the alien’s own government ordered the hit after it learned of the alien’s plans to save mankind.  Without Earth and its hopeless plight the alien government believed that it would actually have to take on the tedious job of governing whereas in the past when things turned to shit it could just tell its populace: at least we’re not Earth.

A Breather, And Then Some

In 1986 the New York Mets won it all: their division, the league championship, the World Series, and the entire City of New York.  This had as much to do with the success of the team that year as it did with the colorful personalities that made up the ’86 Mets.  I wasn’t quite the baseball fan back then that I am now so my memories of the ’86 Mets are fuzzy at best.  What I remember most about the team are the individual players — their names, positions, and on some level their quirks or trademarks.  Back then there wasn’t much in the way of cable television and most of the Met games were shown on network TV (it was Channel 9, WWOR, when I was watching) so even casual television watchers came to learn something about the Mets.  At school, I recall the teachers combining classes and wheeling in a TV so the kids could watch the Met games although I suspect it was more for the teachers than anyone else.

I don’t know how much the 2015 Mets resemble the ’86 Mets.  I suspect not much although I think that’s more a product of generational differences than any lack of character on the part of today’s team.  Players today are more polished and guarded and it’s hard to tell what they’re really like off-the-field.

On-the-field is a whole different story.  And that’s perhaps where this year’s team is most similar to the one from ’86.  Both had a flair for the dramatic — whether intentional or not.  This year’s baseball dramatics came late for the Mets but it came with a bang, a pop, and most recently, a crunch, as in Utley’s slide/tackle and Tejada’s broken leg.  The ’86 Mets too had their share of on-the-field drama, the most memorable moment from that year being Mookie Wilson’s groundball that went through Bill Buckner’s legs during the 10th inning of Game Six of the World Series.  In describing the misplay afterwards, Buckner said “The ball went skip, skip and didn’t come up. The ball missed my glove. I can’t remember the last time I missed a ball like that, but I’ll remember that one.”

I realize as I am writing this that the season isn’t over for the Mets — not yet at least.  That may change come Thursday when they play the decisive game of the divisional series in LA against the Dodgers.  I wish them well.

In the meantime, here’s some inspirational reading for all those Met fans out there.  It’s a piece by the great sportswriter Roger Angell about Game Six of the 1986 National League Championship series between the Mets and the Astros, a sixteen inning affair that ended with a Met victory and the entire City of New York on the brink of pandemonium.

Home Again

There are many reasons why people want to emigrate to the United States.  One oft cited reason is abundance of economic opportunity.  Where one is perhaps stymied in his attempts to set up shop on a street in Bangladesh so that he will be able to make enough to support himself and his family, he will have no problem doing so in the United States.  Work hard, play by the rules, and the rewards will come your way.  This is the capitalist myth, aimed especially at immigrants, that has endured for as long as Ford has been making cars.  And it has worked — at least in luring immigrants to the United States.  What happens to most of them after they arrive and settle here is a different story.

I often wonder whether some immigrants now in the United States would not have been better off staying in their home countries.  Of course, there are many places that are not liveable even for the most resourceful and optimistic individuals.  I cannot tell you where those places might be from personal experience but if news accounts are to believed modern day Syria seems like an example of such a hellhole.  But what about other places where living conditions might be considered harsh but not unbearable to the point where one is in constant fear of being indiscriminately shot at, kidnapped or tortured?

It is true in many of these places you cannot have a house with a yard and two cars.  You are lucky if you can get a one bedroom apartment with your own bathroom and a separate kitchen.  You will either have to walk or to ride crowded buses and trains to most destinations you’d like to go to throughout the day.  What you eat for the day will be limited to what’s being served at the local food stand or cafeteria or what’s in stock at the local market.

Such living conditions certainly seem shabby when described in the abstract.  And all the more so when considered in tandem with images, littered all over the internet and publications, depicting homes in the West of uncompromising luxury.

The mindset of the immigrant who decides to escape such shabby living conditions in search of the gold-flecked frontiers of the United States is akin to what goes through the mind of a high schooler who is about to leave home for college.  For the student it is the excitement that she will no longer be bound by the rules and conventions that she had to observe while living at home.  No more curfews; no more dinner table rituals; no more lectures; no more chores.  It is the excitement of imminent freedom.

The same goes for the immigrant.  No doubt that with shabby living conditions come more rules and conventions that are meant to prevent conflict and maintain a certain level of social harmony.  To be able to free oneself from these social norms is understandably exciting.

But as is often the case, the immigrant eventually comes to his or her senses, as does the college student  It dawns on the immigrant that living in a place without the constraints that are often placed on one’s conduct in places that present more crowded, inhospitable living conditions make living a very lonely and purposeless endeavor.  And it dawns on the college student that life at home wasn’t so bad after all; that perhaps all those rules and conventions were in place for reasons, even if  some of those reasons never really made sense, and perhaps never will.


Jimmy Carter

‘Nuff Said.

Jimmy Carter for Cancer Survivor by Mike Lukovich

Padilla Retroactivity Making Another Trip to the Supreme Court?

Earlier this month the Ninth Circuit Court of Appeals decided the case of United States v. Chan.  That case involves a longtime U.S. green card holder and British national who is trying to get her prior convictions for perjury overturned.  The argument is that the lawyer who represented the green card holder misled her on what would happen to her immigration status if she decided to plead guilty, which she ultimately did.

The convictions at issue are old, dating back to 1993, but they are surfacing now because the immigration authorities recently initiated deportation proceedings against the green card holder, relying on the 1993 convictions.

The issue in the case is whether the green card holder is entitled to postconviction relief because her former attorney misled her about the immigration consequences of her prior convictions.  If she does, then there is a chance she may also be able to avoid deportation.

The district/trial court said no but the appeals court disagrees.  The appeals court rules that the green card holder is allowed to rely on and benefit from a Ninth Circuit decision that came out after the green card holder was convicted of perjury.

Generally, decisions that are issued after the event for which one seeks relief cannot be applied retroactively.  But there are exceptions to this rule, and in some cases the rule just doesn’t apply.  Here, the green card holder convinced the appeals court that the rule of non-retroactivity did not apply to the decision that she says is her key to overturning her perjury convictions.  That decision is United States v . Kwan, 407 F.3d 1005 (9th Cir. 2005).

There was a smattering of opinions in this case among the three judges who were on the appellate panel.  One judge (Bybee) agreed that Kwan could be applied retroactively but said that the green card holder could still benefit from Kwan on the basis of stare decisis — the latin phrase for “to stand by things decided” — because the two cases are identical.  When applied to court decisions this principle signifies that prior court decisions should control cases that come after it.  What Justice Roberts once likened to a judge who just calls balls and strikes (Roberts placed himself in that category of judges).

Another judge (Ikuta) disagreed with the majority’s retroacitivity analysis.  Ikuta acknowledged that the case before the court was a “sympathetic” one but thought the majority came out wrong in its legal analysis.

In any event, the significant aspect of the Ninth Circuit’s decision in Chan, aside from the benefit it confers to our green card holder, is that it deepens the split among the federal appeals courts on whether decisions making it unlawful for an attorney to affirmatively misadvise a client on immigration consequences can be applied retroactively.  I know, an issue that sounds like something only a lawyer, or a lawyer’s lawyer, would get excited about.  But its implications are considerable given that immigration continues to remove record numbers of foreign nationals from this country come hell or high water.  Right now, one appellate court has said yes to retroactivity (the Second Circuit), and another one has said no (the Seventh Circuit).  If you’re keeping score, that is 2 for retroactivity and 1 for non-retroactivity.

The existence of a circuit split also means that it makes it more likely that the Supreme Court will eventually step in to resolve the disagreements among the courts.  It did so once already on a very similar issue and ruled against retroactivity.  Might it do the same thing this time around?

It’s Such a Good Feeling

Not too long ago I transcribed for this blog a piece George Orwell wrote for Tribune, a British newspaper to which he was a regular contributor.  Orwell had his own column in the paper which he called As I Please and the piece at issue was one that Tribune thought best captured Orwell’s character and outlook, so much so that it re-printed the piece as its official obituary for Orwell following his death, one that came all too early.

At the end of this piece, Orwell quoted the following passage from The Thoughts of the Emperor Marcus Aurelius:

In the morning when thou risest unwillingly, let this thought be present — I am rising to the work of a human being.  Why then am I dissatisfied if I am going to do the things for which I exist and for which I was brought into the world?  Or have I been made for this, to lie in the bed-clothes and keep myself warm?  — But this is more pleasant — Dost thou exist then to take they pleasure, and not at all for action or exertion?  Dost thou not see the little plants, the little birds, the ants, the spiders, the bees working together to put in order their several parts of the universe? And art thou unwilling to do the work of a human being, and dost thou not make haste to do that which is according to nature?

There is a modern equivalent to this passage, and it comes from everyone’s favorite “neighbor” and TV personality Fred Rogers, more commonly known as Mister Rogers.  Among the many rituals Mister Rogers used to have on his television show was the one where he would sing a little tune while he changed his shoes and jacket as he came into and out of his television home.  The songs signaled to the audience the beginning and the end of another episode of Mister Roger’s Neighborhood, and always left the viewers with a sense of anticipation — to see what would be on today’s show, and when that show was over, the one after that.

The song Mister Rogers sang when it came time to leave and to say goodbye to his audience went something like this:

It’s such a good feeling to know you’re alive.
It’s such a happy feeling: You’re growing inside.
And when you wake up ready to say,
“I think I’ll make a snappy new day.”
It’s such a good feeling, a very good feeling,
The feeling you know that
I’ll be back,
When the day is new,
And I’ll have more ideas for you,
And  you’ll have things you’ll want to talk about,
I will too.

I miss Mister Rogers, and George Orwell for that matter.