Ciceronian Review

Special Indeed

From the NYT today:

Israel's return to Gaza is long overdue.

Israel's withdrawal from the Gaza Strip is almost a year old. From the very beginning, Qassam rockets rained down on the innocent civilians of Israeli cities like Sderot and nearby towns from nearby Gaza.

To this day, this hasn't stopped.

No country would sit still for what amounts to two Qassam rockets a day, every day.

Now with Hamas as the duly elected governing body, it appears as if the terror campaign out of Gaza has only increased.

Terrorism, intimidation and indiscriminate acts of violence must never be tolerated by any sovereign state.

The 'rain of rockets' has not resulted in casualties, or even significant property damage.  It therefore cannot support retaliatory actions which do cause significant numbers of deaths and injuries.  Terrorism, intimidation and indiscriminate acts of terror properly characterize Israeli policy toward the Palestinian population and Authority.  Justification for destruction of power and water facilities is not possible in these circumstances.  The underlying notion that one Israeli soldier has such value cannot be separated from a fundamentally racist view. 

 

Sand

Stopping electrical power and water will result in a number of avoidable deaths in the Gaza, as well as worsening the lives of a large number of people virtually all of whom are civilians and noncombatants.  I wonder how the calculation works which justifies such conduct; or is it the return of collective punishment?  I wonder why the conduct is acceptable elsewhere but not domestically?

Magical Thinking

Do you believe that bad thoughts are worse than bad acts?  Better actually to injure or kill than to intend such things?  That belief would seem a belief too far even for the most devout of Kantian or religious.  Lust in the heart may be a sin, but surely actually killing people is worse than wishing them dead.  The contrary belief seems to me evidence of derangement.  Yet such are the views commonly expressed in the letters to the NYT. 

Emperor Hadrian

Little Soul

Little soul little stray
little drifter
now where will you stay
all pale and all alone
after the way
you used to make fun of things

translation by W.S. Merwin

Poetry in April -- Luzi

This is from the April issue of Poetry, translation from the Italian by Dana Gioia.

Las Animas

Fire everywhere, soft fire of brushwood, fire
on walls where a faint shadow flickers
but lacks the strength to imprint itself, fire
in the distance rising and falling across the hills
like a bright thread through the spreading ashes,
fire in flakes from the trellised vines and branches.

Here neither before nor after its proper time
but now that everything in this festive,
sad valley exhausts its life, exhausts its fire,
I turn back and count my dead,
and their procession seems longer, trembling
leaf by leaf from the first felled tree.

Grant them peace, eternal peace, carry them
to safety -- far from the whirlwind
of ash and flame that twists choking
through the ravines, wandering the paths,
spinning aimlessly, then disappears.
Let death be the only death, nothing other
than death, beyond struggle, beyond life.
Grant them peace, eternal peace, appease them.

Down there where the harvest is thicker,
they plow, they roll their barrels to the spring,
they whisper in the quiet transformations
of each hour.  A young dog stretches out
in the corner of the garden for a nap.

A fire this gentle is barely enough, perhaps
not even enough, to cast light long
on this life's undergrowth.  Only another fire
can do the rest and the more --
to consume these remains, to change
them into light, clear and incorruptible.

Requiems from the dead for the living, requiems
in each flame for the living and the dead.
Stir the embers: night is here, the night
that spreads its pulsing webs between the mountains,
now the eyes fail, but from the heat,
from the darkness, they know what remains.

yes yes yes er no

June 19 New Yorker has a piece on the Joyce literary estate, its executor Stephen James Joyce, and the discontent among academics over SJJ's administration of the estate -- i.e., his persistent lack of cooperation with their investigations.  There is a lot of interesting material in the article, and it presents a reasonably complex description of SJJ.  Certainly at the outset he is quite sympathetic -- he properly notes that Dubliners, A portrait of the Artist as a Young Man and Ulysses are all simply good reading and there is no need for the overarching academic apparatuses of guides and interpretations.  But then we get to the real story.  SJJ does not like digging around in the family, has a strong sense of privacy and wants to wield his control over the estate to enforce that vision, which he does through copyright control.  After recitation of various projects run aground on the rocks of SJJ's refusals, the author gets us to the new meat:  the fight between Prof. Schloss and Joyce over her book about Lucia, with an outstanding supporting role by Prof. Lessig. 

Schloss's complaint seems to be that Joyce would not cooperate in her study of Lucia (as a misunderstood genius).  Bad of him, not to help her in book.  That she wants to use his property to advance her career and to sell her book does not get much notice here.  Schloss's aim, pretty plainly, is to profit from the Joyce estate, to exploit it for her own personal gain.  (She is after all, advancing her career, after all, and the book she produced was for a commercial market.)  Poor academic -- quiet, unassuming, and willing to expropriate what she wants for her own ends.  And so deeply committed to her own project that she wanted to be indemnified by her employer -- the university should carry the risk of her work.  That is ridiculous.  It does not determine what she works on, or how she does her work really.  (I also just do not believe that someone with a lifetime employment contract cannot find the money for a policy.)

To the rescue comes Lessig, who sees this as another opportunity to attack the extension of the copyright act.  The Copyright Act revisions are, as Lessig might not say, obscene.  The extension and expansion have no justification.  They were wrong on economic, policy, and theoretical grounds.  Whole-hearted endorsement from me on that score.    But the Act is there.  Now, it is whether there should be circumvention of the statute, and whether Schloss offers a case for the idea of copyright abuse.  The latter I very much doubt.  Actually, I very much doubt the idea of copyright abuse.  SJJ is  not blocking independent works, and hardly preventing competition.  As far as I can tell, everyone is still free to write what they like (even if they do not get to quote as much as they want) and free to investigate as they please.  Perhaps the theory just was not explained in the article.

That said, I do not think Joyce has it right.  His sense of privacy really a bit hypocritical.  He lives off the sales of the works, that is, interest in the books, out of which it is entirely expected there will be keen interest in the life of the author and his surrounding folk.  Blocking inquiry and blocking discussion (by blocking publication) seems worse than selfish.  Kind of thuggish.  Reminds me of Brittany Spears and her ilk:  she lives off interest in her and yet complains about lack of privacy.  You make your life being a public person, you don't get much privacy.  If you care all that much about privacy, find a new line of work. 

Seems the crankiness has rubbed off from the text to the reader.  Yikes!

Rosen's Rosey View Of No Roe

June Atlantic cover article was a piece by Jeffrey Rosen on what might occur should the Supreme Court reverse Roe.  Rosen's article, Life After Roe, is consistent with his other pieces about the Supreme Court in the Atlantic.   The basic idea is that the Supreme Court may well reverse Roe and so doing leave abortion as a state issue.  Rosen's take is that about a third of the states will criminalize, a third will legalize and a third will have somewhat more restrictive controls than presently available.  He continues the line that the Court's decision cut short a national political debate on the issue, and that once that is resumed, given the majority favoring at least first trimester abortion legality, that is where things will settle over the long run.  I do not think this is right, either about the history, the short term outcomes, or the underlying legal and political thinking.

There was not a "national debate" on the issue when Roe came down.  The decision itself made relatively little news -- it was not page one news, and mostly got inside and limited coverage.  Politicians rarely took positions on the question.  There was no strong religious interest in the subject.  There just was not a serious political engagement on the topic.  All of that followed the decision.  That claim -- that the Court cut short a debate -- is untenable as history.  The aim of the line is to compare reproductive rights to civil rights, and so ask for a long public engagement on the matter before decisive court action.  I do not think there is much useful in the way of an analogy here.  The "national debate" about civil rights is a long inglorious series of failures.  it elides the daily experiences and  any consideration of social activity.  There is no convincing way to place the Court's civil right decisions at the end of a national debate.  When Brown was handed down, it did not reflect a national consensus on civil rights.  Fifteen years later George Wallace ran a respectable (in every sense) campaign for the presidency based on defending Jim Crow.  As to abortion, the national debate came afterward, it was not cut short.  (Which is also true of civil rights, I think.)

It is optimistic to think that this Court would reverse Roe and leave anything in the hands of the states.  It did not do that with medical marijuana.  It did not do that with elections.  I do not think that is the likely outcome of a reversal.  The Court might hold that there is no constitutional interest in decision-making over reproduction, but that will not return the issue to the states.  For that, it must also hold that there is no constitutionally cognizable interest in fetal existence.  If there is, then it is hard to see how they could let the states legalize killing fetuses.  No state could legalize infanticide under this Court.

Rosen also glides past the politics of state legislation.  His belief that the majority will eventually carry the day is of a piece with eating in the long run.  It is pretty clear that legislation is held to intensely motivated minorities far more often than majorities. 

This article by Rosen fits with his other pieces, all of which have a theme sub voce, the right-wing court is not really so bad.  Kissinger is a good dinner guest, so he must not have been a criminal.  They are all nice, and none of them actually eat raw human flesh, so, really, they must be good.  And by the way, they are all brilliant.  Supreme Court smell-feasting. 

Right on Roe

The Autumn 2005 (9.1) issue of Green Bag has a very insightful and cogent review of What Roe v Wade Should Have Said.  The review is by David Garrow of Homerton College at Cambridge.  The review is sharp, clear, and very useful.  I will not repeat all of the important points, but several are worth noting here.  On the low end of the scale (meaning satisfies my interest in the ad hominem), Garrow gets it right about Cass Sunstein -- a vapid glib bit of bagatelle and not a serious thinker.  Why he gets published remains a mystery to me -- what Sunstein says is usually an mixture of the obvious and the hopelessly dopey.  But to the substance.  A key historical point Garrow makes, which I think is painful and true, is that abortion controls were not really on the way out.  A very large majority of states had criminalizing statutes, and the statutes were enforced (as far as such ever are, which is a separate and interesting question).  The line suggesting that the Supreme Court did not need to act because the states were about to get rid of statutes is incorrect.  Garrow is also right about the failure of left law teachers to give serious thought to what the Court could or should have done in the context.  Arguments about equal protection as a basis for reproductive rights just are not viable for that period.  There was no basis for thinking that equal protection went so far.  Whether an argument now would work is not useful when the project is rethinking what could have been done then.  His critique of right law teachers is equally pointed and equally correct.  The rhetoric of murder is a demonstration of personality disorder, despicable because insincere and pusillanimous.
Oh, and the review is well written.
I think Garrow's analysis of the comparison to civil rights could have been fleshed out a bit more.  The time frames need more exposition.

April in Firenze

A couple of weeks back I read Lauro Martines' Fire in the City.  The book is about the rise and fall of Savonarola.  (Bonfire of the vanities and all.)  A little piece of the remarkable history of Italy.  But a curious piece I think.  Florence of the Medicis would not seem to me to be the most hospitable place for a religious fellow of Savonarola's ilk.  He was quite against sumptuaries and wealth, etc.  Yet he holds immense influence over the city for several years.  Unfortunately the book is more about the politics of the period and Savonarola's place than about him.  I wonder what sort of biographies are available on the subject.  The politics are, I add, very interesting.  One cannot help but have some affection for a party who call themselves the Uglies.  One aspect I still find fascinating, and it is an aspect of Roman politics as well, is the adherence to personality -- the very limited political content of the various factions, and the preference for organizing around personality. 

An important turning point was a challenge by an anti-Savonarola cleric to a test of fire -- walk through a bonfire, and the survivor is favored by God.  One of Savonarola's colleagues was dippy enough to accept the challenge.  So, the city arranges things: large amounts of wood are brought in, soaked with tars, a walkway through the wood is made, spectators are arranged for, etc.  Of course nothing happens in the end, a lot of wrangling about wearing ecclesiastical robes and holding crosses.  The challenger never appears and no hot run is held.  For reasons that I do not fully grasp, people take this as Savonarola's fault, although his nimrod was at the ready for the hours of sanding around.  Shortly thereafter the Uglies and their colleagues destroy Savonarola. 
The book is fun to read, like Martines' previous book on the plot against Medici rule.

Rainbow

China Law Blog thinks I am applesauce:

 

Wrong. China's legal system is slowly improving. There is less corruption than widely believed (though still plenty). The courts in the more commercialized big cities are actually decent at handling commercial cases. China's commercial laws are actually not bad at all.

 

Read my posts in the "legal news" archive and see what you think.   

 

Also, ask yourself whether U.S. law is completely pure and after you answer no, ask if that is a requirement for a functioning legal system.

Never one to be deterred by inconvenient facts (none of which I know), I remain unconvinced.  Not that I think China is not improving slowly with respect to the development of a legal system.  But it does not have one yet.  The government is not bound by anything, and regularly turns the courts to entertaining marsupials.  A legal system takes a great deal more than dispute resolution on a sometime basis and only when the state (or its collection of family oligarchs) have no special interest.  I think that better describes the state of things there now.  Like the folks to the northwest, there are courts and lawyers, and prosecutors and the trappings for an as yet empty box.  On this, of course, I could be all mistaken, applesauce as the French say (I kind of like applesauce, but I can see why people who care about food would use the expression).

The other thing is that the state of law elsewhere does not depend in any interesting fashion on an assessment of affairs in the US.   I do not know what is meant by "purity", unless it is just the level of corruption.  Well, there is that here, and not all of it monetary.  But there is not the worry that filing a lawsuit will put one in jail or result in death. 

None of this should be taken as saying that CLB is a waste of time, or the like.  Nor is it to say China is today what it was twenty years ago.