Ciceronian Review

There Was a Partner

The Al Jazeera release of documents re Israel/Palestine negotiations is not getting as much coverage as I would have expected.  And the coverage all focuses on the effect of disclosure of Palestinian positions to the Palestinian public.  No doubt, there is plenty there to consider, and the reactions are important, I think.  As one might expect, there is a certain amount of outrage (real and feigned) about the extent of concessions by the PA.  Those concessions are interesting -- much more extensive and greater than I would have expected in light of the public positions of the interlocutors.  (Of course settlement talks tend to diverge significantly from the public stances.)  I don't know whether the concessions were wise, under the circumstances (not saying they were unwise, I just have not come to a conclusion on the question).  What is clear to me is that all the talk by Israeli government et al that there was no Palestinian partner was false.  The documents show an interlocutor committed to reaching an agreement at the cost of considerable sacrifice.  All of which is introduction to what is most interesting to me at this point -- the absence of discussion of the Israeli side of the negotiations.  The news coverage on that aspect is very skimpy.  Does the material released by Al Jazeera not provide any information about the Israeli responses and offers?  Are the reporters not interested?  According to the reports I've read, the Palestinian side offered  major concessions on land and population -- giving up claims on almost all of Jerusalem and re settlements, gave up any military force, and only a token right of return.  What kinds of responses did they get?

My speculation is that the problem for the PA in these documents will be short-lived, and not serious.  The revelations will be a long term problem for Israel.  I understand that more documents are to come.  In any event, it is a much more interesting set of disclosures than the Wikileaks set of diplomatic cables.

Terror in Moscow

This is part of the reason that airport security is in large part theater.  Terrorism does not need airplanes.  Population concentrations will do, and even that is not necessary.  The infrastructure of economies provide lots of targets, if that is what one is after -- tunnels and trains, and so on.  I suppose there was little or none of this sort of terror in the Stalinist states, but an overwhelming amount of other kinds.  

 

Philosophyical Poetry

Cabaret Ludwig

 

I’ll fly off to a fjord in Norway

Post “Oh the pain” above the doorway

If you insist on going your way,

                        For this is not a duck.

 

That is what cowards say, and realists

Who run away, shun the appeal its

Rare white fur holds, although they fell it’s

                        A rabbit full of pluck.

 

Let’s multiply, let’s twitch our noses,

Let’s walk among the night’s dark roses,

Though where the oldest story goes is

                        A place where tongues migh cluck.

 

I’ve had my share of quacks and hisses;

Whereof mouth cannot speak, it kisses;

Hop to it, man, and realize this is

                        A lovely bit of luck.

 

 

Rachel Wetzsteon

 

Sour Apples

The Utah Court of Appeals handed  down another decision today returning a case for resentencing of the defendant because the sentence of the trial court was too low -- Williams. 

¶3 Rule 22(e) of the Utah Rules of Appellate Procedure provides that this
court may correct an illegal sentence, or a sentence imposed in an illegal manner,
at any time. See Utah R. App. P. 22(e). A sentence is illegal, and therefore void,
when it is "beyond the authorized statutory range." State v. Thorkelson, 2004 UT
App 9, ¶ 15, 84 P.3d 854. The Utah Supreme Court has clarified that a sentence
less than that sentence mandated by statute constitutes an illegal sentence
because it does not comply with the requirements of the statute. See State v.
Babbel, 813 P.2d 86, 87 (Utah 1991).

I have already noted that I think the interpretation of the "beyond the authorized statutory range" should not mean or include "less than the statutory range" if ordinary English applies.  The State Supreme Court has repeatedly held that statutes are to be interpreted according to the ordinary meaning of the words, where possible.  But set that aside.  What is a bit disturbing in Williams is that the citations in Paragraph 3 look like mistakes.  Here is the cite paragraph in Thorkelson:

¶ 15 While rule 22(e) allows a court to review an illegal sentence at any time, it must be “narrowly circumscribed” to prevent abuse.  State v. Telford, 2002 UT 51,¶ 5, 48 P.3d 228. The Utah Supreme Court has held that a rule 22(e) illegal sentence is a “patently” illegal sentence, State v. Brooks, 908 P.2d 856, 860 (Utah 1995), or a “manifestly” illegal sentence, Telford, 2002 UT 51 at ¶ 5, 48 P.3d 228. A “patently” or “manifestly” illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction, or (2) where the sentence is beyond the authorized statutory range. See id. at n. 1. Thorkelson's challenges to his sentences involve neither situation. Rather, the errors raised by Thorkelson can be described as ordinary or “run-of-the-mill” errors regularly reviewed on appeal under rule 4(a) of the Utah Rules of Appellate Procedure.

That paragraph provides no support for the notion that a too-short sentence is "beyond the statutory range".  All it says is that illegal sentences are appealable and illegal sentences are those rendered by a court without jurisdiction or which are beyond the statutory provisiosns.  As Williams involves a too-short sentence, Thorkelson is of no interest.  So, then, what about Babbel?  There we have a discussion of illegal sentences, viz., that an illegal sentence is void, ab initio apparently, and so the (trial?) court retains jurisdiction to correct and impose a legal sentence.  By implication, I suppose, an illegal sentence is one too lenient.  That decision was under a statute, not a Rule of Criminal Procedure.  It also seems to assume the conclusion rather than offer any explanation or justification.  The old statute and the current rule use the language 'beyond'. What is bothersome is not the result but the road to it.  As the Court elsewhere dwells at length on the doctrine that ordinary English is to govern, why the departure?  As the Court controls the Rules, why not fix the language?

 

Robin Lasser

Most of the time when I look at conceptual art, I get bored.  And that has usually carried over to the school of staged photography.  The work too often depends essentially on the accompanying text explaining what one is supposed to think about the images, which by that point are entirely dispensable.  In the March 2011 issue of Color, however, my predispositions were put by the side.  The issue (not up on-line yet I think) has a spread of images by Robin Lasser with text by Trena Noval.  The images come from several different projects by Lasser, two of which I think powerful and successful -- Floating World, and Eating DIsorders.  The Floating Worlds images involve placement of constructed lit tents in urban locations.  There is a discussion with images here. The project, no doubt, has a narrative element, or rather, an attached disquisition and polemic about shelter and geography.  I think this project works because the images lead back to the other content, and both sides stand independently.  (I should note that there are very different qualities to the images in the magazine and those on the sites linked to above; unfortunately.)  The images are well made (art least those I've seen), formal composition, and so on.  After the images, the text was something I wanted to read.

The other project -- Eating Disorders -- is also worth the look.  And it is even more surprising for me, because on the surface it reeks of Holzer.  Holzer is the apex of postcard makers, but that is it.  These pieces jump above that, they are more than odd advertising slogans.  I am doubtful that I can yet explain or identify why Lasser's work strikes me so differently from Holzer.

Mommy Meanest

All the reviews and articles about Chua's mean mothering program seem to assume that whether one's children are bright is just a matter of parenting.  What if Amy Chua's spawn had been dullards?  How would tossing them out in the cold or demanding hours of piano practice have mattered? 

Fees

Gilbert Development is a long complicated case about real estate sales, fiduciary duties, and contracts.  I’m not going to talk about the facts or those aspects of the law.  What I found interesting is the Court of Appeals’ discussion of the award of attorney’s fees to the prevailing party (reasonable fees award under contract).  The discussion does not even start until paragraph 44 of the opinion, so you have to go a good way into the opinion to find the fee discussion.  It is quite interesting, and in some places troubling.  Among other points, the Court holds that fees are recoverable for vindication of contract rights – kind of boilerplate.  An unsuccessful motion for summary judgment is not under that description.  (¶ 52)  In this instance the Court points to a number of factors leading to the conclusion – the motion was denied, of course, but also that although the claim at issue was dismissed two years later, there was nothing showing a connection between the dismissal and the motion, and that the trial court never adopted the major argument of the motion.  That seems reasonable – no vindication no fees. 

Consider, however, how likely it is that the paragraph will next show up in an argument that fee recovery is limited to successful dispositive and non-dispositive motions.  The argument will be that a motion that does not get granted should not be included in fees.  The possibility is raised by the cursory treatment by the Court of Appeals of the trial court’s explanation of how and why unsuccessful motions, even for summary judgment, are valuable and advance both the case and the vindicated claims.  The trial court’s explanation is summarized without comment and then ignored.  The Court of Appeals treats that part of the decision below as just stuff to recite, and then drop.  That is problematic because of implications, beyond the inevitable efforts to expand (and efforts to expand by losing sides will be inevitable and pervasive).  It suggests that fee requests will need to be even more detailed and even more difficult to obtain: even more detailed time keeping and allocations, ever more detailed memoranda memorializing strategic values of motions, ever longer chains linking motions or other work to ultimate outcomes.  Where the case is simple, those conditions may be easy to satisfy, but in complex cases (like Gilbert) that can be an enormous undertaking.  In Gilbert the fee request included a 67-page declaration justifying fees – people went over every time entry covering six years.  Coupled with the increasing bar on block billing, attorneys need to start recording time with it in mind that there may be a fee recovery, and that means ever longer entries broken into ever small segments and ever longer applications and ever longer oppositions and ever greater burdens on the trial courts.  Judges do have to assess whether the fees are reasonable, but I am a little worried that they have insufficient understanding of the increasing burdens they are creating.  (It is unclear whether the preparation of a fee request is a recoverable expenditure of fees.)

I should also note that the Court of Appeals took the right course on the “locality” factor:  the trial court can consider whether the case justified counsel from elsewhere who charged rates appropriate for their home, that there is no presumption in favor of the rates in the immediate vicinity of the courthouse.  

Still Morning

Reading Edge of Canaan coincides with the King holiday. The country has come a very long ways in the last forty years. The history is worth returning to, in part because we all often think of history as last year and not more.  Even forty or fifty years is rather short, and even so illuminating.  On race and sex, it is very different country, and for the better.  There are not lynchings, and no one is being shot for voting or trying to vote, and no one is beaten to death for walking into the wrong neighborhood.  Issues of race and sex are not gone, but they are quite different than they were forty years ago.  We are worse off in some respects, most importantly in terms of widening divides of wealth and hardening distaste for lower economic classes.  We should remember the remarkable accomplishments of the period. 

And I think we should remember what that older world was like. What would it be like now if originalists held the Supreme Court then?  Hard to see Gideon, or Loving, or any of the rest.  Racial covenants in property would have been left in place, bars on interracial marriage would have remained; no 'one man, one vote'.  Maybe the social world would have changed, but it is foolish to suppose that inevitable or that it would have been on the same time frame.  Decisions of the courts affect public attitudes -- do not dictate but do affect.  It was the Court's actions that gave some cover to the politics. Perhaps the same popular shifts would have come -- I am a bit doubtful -- California passed propositions against fair housing, after all.  

So two points: First, that we have a better country because of King and those who went before and with him pushing changes of civil rights.  It is an appropriate holiday.  Second, that it is a bit of sleight of hand to act as though the commitments of originalism are genuinely such as to lead us to the great social reforms of the 1960s and forward, that there is any intellectually consistent route from the original meaning or methods to where we are now. It is not the New Deal that is in danger. 

Goodbye Simpson

A.W.B. Simpson died this week.  Simpson was a professor at Oxford, working in legal history and jurisprudence.  I particularly liked his Cannibalism and the Common Law and his Legal Theory and Legal History.  I think the works are an interesting starting place for exploring two things: first, the distances between legal theory or doctrine, on the one hand, and the cases about which the former are supposed to be, on the other; and, second, the distance between the facts and the cases.  A fair portion of philosophy of law would benefit from more respect for history, and for practice.  A lower regard for pure theory. 

 

Protection

Ever wondered about the fair market value of your house, the one which will be foreclosed on because you can’t pay all those law school loans?  As Utah is a deficiency state, the question may be of interest.  In Capital Assets, the Court of Appeals held that fair market value is the same for foreclosure purposes as for accounting – the price at which a willing seller and buyer in an arm’s length negotiation arrive.  That is, subject to any existing encumbrances, which a willing buyer should care about.  Not so controversial one would think.  In Capital Assets, a junior lien-holder foreclosed on a $1.5 million note, taking the property with a $1 million credit bid, and then seeking the remaining $500,000 from the borrowers (deficiency).  Owners said that the demand failed because the unencumbered fair market value exceeded what as owed.  The property was worth about $2 million unencumbered.  (Paragraph 3.)  The deficiency statute allows the lender to go after the amount by which the total of encumbrances (secured debt) exceeds fair market value.  (Paragraph 6.)  The court sees this as a protection for the debtor – a foreclosing lender may not low-bid and collect the difference from the borrower, as the deficiency is just the difference between remaining debt amount and fair market price.  True, but non-deficiency is what would protect the debtor.  Anyway, this protection of the debtor means, in this case, that the debtor owes $500,000 rather than nothing. The lender has the property, albeit subject to a prior lien of over $1 million – which makes the whole transaction interesting: why do the parties think that the property will be worth in excess of $2 million (the break even point)?