Ciceronian Review

Memorable

Sonoma Fire

Large moon the deep orange of embers.                                                                                                          Also the scent.                                                                                                                                                  The griefs of others -- beautiful, at a distance.

    by Jane Hirschfield.

 

Just right.  Reminds me of the Marin fires and the Berkeley fires. 

Grey Atlantic

I have stopped reading Atlantic Magazine.  Actually, I stopped about eight months ago.  Megan McCardle is one of the reasons.  Kate Flannigan is another reason.  And Ben Witte.  And the fact that the articles have turned become too short to say much (which might be good given that the writers are saying much less).  I should note, however, that the magazine has gained readers I believe, so losing the likes of me has improved the economics of the magazine.

McCardle is a reason to stop reading Atlantic because she says things which are thoughtless, and over and over.  In one of her essays she argues that lack of medical insurance has no connection to mortality rates.  If this was true, it would be remarkable.  But it isn’t.  It is an example of not bothering to think about what is front of her.  If medical insurance has no effect on mortality, then a couple of other things follow, because for that to be true certain other things need to be true as well.  One of which is that medical insurance has no effect on access to medical care, or that medical care has no effect on mortality.  It cannot be that medical insurance has no connection to either of those alternatives.  We also know that Ms. McCardle thinks that medical care does affect mortality – she likes to whine about her insurer not wanting to fund her medical care.  Then there are her magically convenient conversations on buses. 

 

 

Someone Else's Good Poem

Litany

 

O you gods, you long-limbed animals, you

astride the sea and you unhammocked

in the cyprus grove and you with your hair

full of horses, please.  My thoughts have turned

from the savor of plums to the merits

of pity – touch and interrupt me,

chasten me with waking, humble me

for wonder again.  Seed god and husk god,

god of the open palm, you know me, you

know my mettle.  See, my wrists are small.

O you, with glass-colored wind at your call

and you, whose voice is soft as a turned page,

whose voice unrolls paper, whose voice returns

air to its forms, send me a word for faith

that also means his thrum, his coax and surge

and her soft hollow, please – friend gods, lend me

a word that means whiat I would aask him for

so when he says: You give it all away,

I can say: I am not sorry. I sing.

 

 

By Rebecca Lindenberg

Big Lobby

The December 2010 issue of Art in America has an interesting essay by Peter Plagens on the failure of new American museums (and additions).  As architecture, that is, as museums, I think the essay is right.  American art museums are increasingly badly designed buildings.  Make a distinction here between the buildings as architecture and the buildings as art objects.  Maybe they succeed in the latter sense, some of them at least.  I am a bit doubtful, but at least that category is truer to what the architects seem to be aiming at.  The argument of the essay is that American museums are far more expensive than corresponding efforts overseas, the results are inferior buildings and inferior museum buildings.  One get massive buildings with remarkably small amounts of gallery or display space.  Instead, the buildings include giant entries, entryways that soar three stories.  This is largely useless space.  The galleries, in contrast, are modest  and disorganized.  The latter point is important to visitors.  The galleries have no natural flow, and include little or nothing to indicate to visitors where they should go or how to get about the museum.  My experience is consistent with the observations of the essay.  MoMA’s addition does not appreciably increase what is on display, and it does not really have a natural progression.  True, the entry space has been put to use.  Credit due.  But put to use how?  Performance pieces are mounted that interpret movement, that have no real place inside the museum.  (The monetizing of performance art is, in its way, shocking.  The notion that there is a museum (or part of a museum) devoted to curating or preserving art that by its nature was ephemeral performance, art of a moment, is both bizarre and a sad indication of the intellectual bankruptcy of the art profession.  Enough of that digression.  The massively expensive buildings do not enhance access to or understanding of the contents of the buildings – the art.  Some of the problem, I think, is that museums want new buildings that are themselves attractions, more than they want new improved space for the art already in the museum.  (So I do not think that the figure to hold up, pace Plagens, is Geary.)  It is not just boards of museums and the absurdly wealthy folk funding the things, another piece is the weakness of architectural criticism.  It is a good indicator of how serious the problems are in the critical world when a building housing hundreds of workers is praised without any notice that it has just two bathrooms.  It is as though the architects and their critics have come to think that the little drawings of people they place in around their designs are real. 

 

 

Contracts For Some

The news carries a nice illustration of intellectual incoherence by conservatives.  The litigation involving the former senior management of Fannie Mae has cost $100 million in legal fees, to date.  (Set aside the whether the defense of any such small set of individuals would warrant such expenditures.)  The reason the defense must be paid is because it is in the contracts the executives were given.  Quite like the reason the bankers and traders who crashed their respective companies and the economy had ot be given bonuses.  It was in the contracts.  Contracts are sacred.  Contrast that attitude with the view about contracts with public employees.  Those contracts are not sacred.  Wisconsin, New Jersey, and son, the contracts with public employees are no more than chips to be tossed on the fire.  Where it would be horrible for a government to interfere in at all with the contracts of bankers and traders, it is just good policy to interfere with the contracts of public employees.  (It is even worse -- a bank bailing out someone properly may impose onerous conditions and strip out rights and compensation -- when the new money has a different source, then the same conduct is horrifying.)  It looks like it is class warfare, of the usual sort.

There are two other aspects of the assault on public employeesI find curious.  The first is the notion that they are not taxpayers.  As far as I can tell, public employees are subject to almost all of the same taxes as are others (the only exception I know of is that some categories do not pay into social security, and get nothing out).  The second thing I find curious is that these reductions in the safety and compensation of public employment is not expected to seriously degrade the quality and dedication of the employees.  Teachers are supposed to be dedicated and hardworking at the same time that pay and benefits are reduced.  So it is the dregs that are wanted?  

To Weigh or Not to Weigh

Olsen is a kind of companion case to Gilbert and a useful case about fee determinations in Utah.  It is also a very sad case and a lovely illustration of how nutty clients make money for no one but the lawyers.  (At least, I hope the lawyers were paid on an hourly basis -- if not, then it is an example of a case in which everyone involved loses.)  The case is a fight arising from the sale of a house.  Putting it in an overly simple form, the sellers make an offer of judgment at $5,000 following answer, which is rejected.  After twenty months of discovery and a three day trial, we get judgment in favor of buyers for $754.77 on claims of $23,831.98 -- 3% of the initial claims.  As always the sales agreement has an attorney's fees provision allowing the prevailing party's costs and reasonable attorney's fees.  "The question on appeal is whether the Sellers, having defeated 97% of Buyer's claims while not pursuing a claim of their own are the prevailing party for purposes of a contractual attorney's fee provision."  There are plenty of cases to look to, with language that makes one sigh.  There are Utah cases which call a prevailing party the one who did better than a draw, with a draw being half the amount of the demand (what?!), or awarding to the party who achieves genuine success, or which identify the prevailing party to be the one who is the comparative winner.  Olson goes for "a flexible and reasoned approach" which is the comparative winner -- balance the amounts sought proportionally with what was recovered.  Sellers are the winners and get their costs and fees.  There is much to be said for the Court of Appeals' decision.  It does seem weird to award fees to a party who manages to collect just 3% of what they claimed, just as there are circumstances that one would call a draw.  But, and of course there is a but, these flexible and reasoned approaches make for a good deal more work for both trial courts and lawyers, and undermine the (or one important) point of fee provisions.  There is more work for the trial court and the lawyers because any case which does not have a clear and easy winner will now have a round of briefing and argument on who prevailed.  Not simple briefs, but a bunch of cites to cases all about comparing recoveries and real benefits (what if there is both money and an injunction or declaratory relief involved?!).  I wonder what sort of favor it is to expand the discretion of the trial court.  Which leads to the problem of incentives.  A major reason to include fee provisions is to give parties a moment's pause before proceeding to litigation -- the lawyers will advise that fees will be a significant additional issue and should be weighed - you lose more than the case.  But if it becomes more likely that there will not be an award of fees, that disincentive to sue is weakened.  

Olsen is also about people -- clients -- who have little sense.  More than two years of litigation over $23,000 is not sensible.   

Just Is

Dworkin's essay in the NYRB about, I think, how one ought to live, gives some attention to Hume and Hobbes, which is something of a change for philosophy in that journal.  It is usually resolute Kantins crashing into resolute Utilitarians.  It is nice to see something different mentioned.  Yet, it is not quite enough to do what should be done even in such a short essay.  Hume's moral theory is not just about feeling sympathy, Hume's "principle" is not in Hume.  "Hume's principle that no amount of empirical discovery about the state of the world can establosh conclusions about moral obligations" is not a principle found in Hume.  It is the result of an egregious misreading of a small section of Book Three of the Treatise.  A difficulty with thinking this is Hume's principle is that his theory of justice, his theory of natural and artificial virtues all suppose something rather different.  First, the section where the principle is supposed to be found is not a discussion of the nature of moral value or of ethics.  It is, instead, a discussion of existing systems of ethics (or morality, if you prefer), the point of which is that most moralists go from discussions of what social customs are to the view that they must be so.  But that is a point about social conservatism and conflation of particular arrangements with some eternal moral order.  It is not a claim that there is some great unbridgeable gap between is and ought.  That makes more sense than supposing that Hume offers up a refutation of his own theories and never notices.  And it would be a refutation because Hume's accounts of justice and ethics are based on views about how people are and how they respond to the pressures of the world.  A greater part of justice, as we confront it, is convention, which gets its patina of moral claim because of facts about how the convention operates.  Sympathy is something shaped by culture, and its demands on us are matters of fact about psychology and social forces.  There is not some special additional dimension of normativity, no magic world hovering about the physical world.  The mistake Dworkin makes is pretty common, I think because not all that much of Hume is read.  I suspect most people, to the extent they read any Hume, do so in excerpts, in anthologies.  The Treatise and Enquiries and Essays are left off for specialists.  It is a shame, because Hume, wrong in a host of matters, is a far better place to begin thinking about these issues than is Kant.

Anyway, the principle is wrong.  Language shows that.  See Searle.

Moral Categories

The recent NYRB has an essay by Dworkin "What is a Good Life?", essentially promoting his new book on justice.  In the first section of the essay,"Morality and Happiness" Dworkin says that the content of moral principles "must be categorical."  It is, admittedly, a side remark; still, it is a commitment that should be rejected.  It is apparent that what is meant by the phrase is that the content of moral principles are categorical is something like what Kant advocated.  (If not, both the terminology and example chose by Dworkin are peculiar.)  To begin at the easy end of it, what example could be offered up as illustrating a moral principle whose content is categorical?  Surely, if that were so there would a few examples at hand.  There aren't.  No one has any remotely plausible samples to offer for consideration.  It is as though people put the entirety of history out of their heads when it comes to moral thinking, anthropology and biology disappear.  One thing to be said for Aristotle is his recognition that ethics is about the lives of living beings, little miserable material creatures.  That gets lost with the Kant.  Consider for a few minutes what sort of content could be categorical -- can you get to anything more meaningful than will the good or the like?  And that is just to say that there is no content.  It is not going to be a bar on lying or killing or holding other people as property.  It is not going to be treating people as means (how could there even be economic activity if that was the moral constraint?).        

The German King

The King's Speech is a pleasant movie.  I had a hard time feeling much sympathy for King Bertie because, well, he had so little to do and was so well paid for doing it.  But the film moves along.  There is one very odd moment in the film, the great speech scene.  The background music was Beethoven.  I was taken aback.  Not to suggest any connection between the Third Reich and Beethoven, yet it is still a surprising choice to have the speech with that music.  I doubt that it was intended as a comment on the humanities or culture.  Also, why no mention in the many reviews?

Victory Without Success

The opinion in Tanner is a good example of how winning the argument is not enough.  As too often, it is a criminal case.  The basic story is that defendant moves to compel discovery of the return of the search warrant, the probable cause affidavits, and some manuals related to the investigation against him.  The trial court denied the motions to compel on the grounds that none of the information was relevant, and even if it was relevant the prosecutor said he could not find it.  The Supreme Court says that the trial court got every part of the ruling wrong.  The defendant has good cause to seek the return of the search warrants and the probable cause affidavits, as the requested materials would be relevant to cross-examination.  Defense wins, and so muted cheering on that side.  Muted because, although the Court of Appeals found that the trial court has erred, the defendant was no better off.  The informant had been searched before he visited the defendant and delivered drugs to his officers shortly after the visit, and so there was "overwhelming evidence" of guilt.  As the errors were therefore harmless.