Ciceronian Review

Skim Milk

The following, from the February issue of Poetry, is very good.  I do not know why, but it went well with lunch.

 

Why Poetry Cannot Be Skimmed

By Jessica Jopp

In response to a student who told me he just “skims” the poetry right before class

The barn was in the Netherlands,

in a field where fierce night wind

caught the straw as if to fuse

the winter stars to their coldness.

A farmer, woken by the sound, knowing

his animals would be agitated,

walked to the barn and by lantern

brushed the tails of his horses.

In calming them he gathered

many long, gleaming strands

of their nut-brown hair. Given over

to what he heard in the swishing of their tails—

the lash, the taut string of grief, turned slow,

persistence turned to rhythmic movement—

he hoped that if he listened long enough

the layered sound would become a salve.

He rolled the strands together, laid out

along the windowsills of the barn.

Then, once dry enough in spring,

he rolled them in paraffin wax

to preserve the sound

and left them to absorb

all the varied rays of sun, the spills

of rain, and then snow flying fast

across the latched windows and the slats,

the rhythm of other breathing,

animals plodding by the barn walls.

The wax melted as the years progressed

and other horses resided in the stalls,

and their tail strands were added

to the aging threads.  From that encased sound

deepening over years, a rope,

pulled strong and taut, would resonate.

Then another generation worked the land

and waxed the horse-tail cord again,

and in turn when it caught

that century’s light, was spun

into amber. Woven into the cells of hair:

the tones of canal and field,

pasture, furrows of plough,

leaf and shadow, straw and stone,

the human calling, the animal uttering.

And when melted again, incrementally

strands from other horses living there

were added until there were enough

layers of sound, set with the nourishment

of grass and salt, to be given away

and the space the hair had occupied

would be returned to emptiness.

The horse-hair cord was brought

by a farmer to a luthier’s shop

along a canal, and it was a perfect fit,

she said, for a violin bow

she had carved a few months earlier,

waiting, and for the bow-less violin

someone had just given her.  She knew

rosin carrying a current through

pastures, filled thirst, and the grief

of night wind and scavenged apples

made the gathered pieces a whole.

And now they are together in your hands

this moment to make

unrehearsed, immediate,

after all those animals’ years,

when you bring the instrument to your chin,

when you raise the hair-strung bow,

again their elemental sounding,

and then their measured note, their first.

Source: Poetry (February 2011).

Even Dead They Are Better

Earlier this week the NYT carried one of its rare full page obituaries.  No, you did not miss the death of Henry Kissinger or Chancellor Merkel or even Mel Gibson.  Nope.  Huguette Clark died.  Huguette Clark is known to very few people.  Perhaps that is because Ms. Clark spent the last twenty or thirty years in a private room at her hospital collecting and playing with dolls.  Ms. Hugette Clark's accomplishments include debuting in New York society sometime in the twenties, getting married to someone and divorced.  And moving into the hospital with her dolls.  So, all that justified this long obituary is that she was very wealthy.  Quite the accomplishment.  The obituary is remarkable in one way -- it outdoes the obituary of Mr. Snow.  His great accomplishment was being very wealthy (or part of a very wealthy family) and getting high and creating banal art things.  But he did do something, so he has it over Ms. Clark, who filled space.

Evidence that even when dead, rich people are more than the little folk like me are alive. 

Surely, save the page and save some money.  Paper of record or what?

 

Ipse Dixit

The Committee of Civil Procedure has proposed major revisions in the discovery rules.  One of the sources for the revisions -- which aim at minimizing discovery -- is the belief that pretrial processes, in particular discovery, are too expensive, that the values of speedy and inexpensive justice have been ignored.  The Committee relies, of course, on anecdotal evidence of its members.  The Committee says that this anecdotal information has been confirmed by empirical studies (beyond anecdote).  Would that it were so.  What the Committee looks to are studies done by the ABA and by the American College of Trial Lawyers -- big litigation organizations with substantial resources.  So, one might think, there is good evidence that discovery is unduly expensive and interfering with the the timely resolution of disputes.  But none of the studies cited by the Committee really offer support for these ideas, or the revisions proposed by the Committee.  Both of the studies look at opinions of various groups about discovery and other pretrial processes.  There is evidence that lots of lawyers think that discovery is comparatively expensive.  I don't dispute that the studies have accurately captured opinions.  But believing it is so does not make it so in this instance.  What is needed is information about actual costs of litigation -- how much does it cost to get a small case to trial, are there any natural breaking points correlating value of damages to discovery costs, how much is spent on expert discovery and do costs correlate with nature of the case, etc.  In other words, studies of actual costs, not studies of what people think.  It is not a reliable way out to suggest that because the lawyers involved in litigation believe that discovery is too expensive that it in fact is too expensive.  What is the level of cooperation among counsel in planning discovery?  Because most think there  is not enough cooperation does not mean that there is too little.    

There are also private sources which could be mined for some relevant information -- insurance companies and accounting firms have very good data sets on litigation costs.  Someone could look at those to get some useful general information about discovery costs.  But neither the Utah Bar nor anyone else has looked to generate public information about costs, let alone costs relative to size of claims.  In a way, it is remarkable that such dramatic revisions would be built on such a weak foundation.  In the end, it is just ipse dixit.

Little Lights

There is a lot of precious photography to be seen -- photos of dioramas, photoshop extravaganzas, the staged homes, and so on.  Sometimes the technical manipulations, however, turn out something very interesting, something to look at carefully and over some time.  At least some of what Demetrius Oliver has been doing is in that category.  Take a look.  Or go to his own spot.  You can also see them, as I did, in Contact #160. 

Not everything is magic.  I like the Ember series and not nearly as much the Firmament series.  They have similar technical constraints, but take on different objects and images.  The simple start is that the camera is taking images as reflected by illuminated light bulbs.  The interaction between the curve and the composition is much more interesting than I would have expected from a description of what was being done. 

Gallery 291 in San Francisco has some interesting work up.  I have long liked Sunday's work, and own a small number of images.  More of her work is here.  This piece of a few years ago is one.

Roddy

Up too early reading, but the following which I think amusing came to the eyes:

Yeast

By Roddy Lumsden

A word you can’t quite say

without itching, flinching; it’s not easy

to ignore its squirming appetite, stay

your primal juddering. And yes, at

night, each microbe gurns in the salty sea

of gut and gullet, born again, boldly eats

as you ate it, brews its own queasy tea

of proto-raunch which it will quickly sate,

birthing wanderlusting vigors, as yet

unknown to microscience. They sashay, set

out for the toes or gape through your eyes at

your drooping lids, your fat bunch of keys, at

this internal motel’s boss, bellhop, lackey, sat

in the throne of his slumber, a mercy seat.

Source: Poetry (April 2011).

For more from Lumsden, see here.

The issue of Poetry also has some great translations of some of Rimbaud's Illuminations by Ashberry. 

I went back to bed after that.

 

 

Hot Coffee

In a recent case (Boyle v. Christensen, 2011 UT 20), the Utah Supreme Court faced the infamous 'McDonald's Coffee case' used in a closing argument.  The case concerned a trial on damages, liability having been admitted.  Here is paragraph 21 of the opinion:

¶21 Although the public view of the case is understandable when limited to a superficial view of its facts, a deeper look at the details and issues in the case may dramatically alter one’s perspective. Among the many relevant facts generally missing from the public consciousness are the following:
    (1) The temperature of the spilled coffee was so
    hot—180 to 190 degrees—that within seconds it caused
    third-degree burns that extended through the skin to
    the fat, muscle or bone on Ms. Liebeck’s thighs,
    buttocks and groin area. She was hospitalized for eight
    days, underwent skin grafts, was disabled for two
    years following the accident, and was permanently
    disfigured with scars on over 16 percent of her body.
    See Greenlee, supra, at 718–19; see also Angelos, supra, at
    21; Brian Timothy Beasley, North Carolina’s New
    Punitive Damages Statute: Who’s Being Punished,
    Anyway?, 74 N.C. L. REV. 2174, 2190 (1996).

    2) The jury heard evidence that McDonald’s had
    received approximately 700 other complaints about
    coffee-burn injuries in the previous decade (some of
    which were settled for a total outlay of over $500,000),
    but considered the number of injuries statistically
    insignificant and therefore did not lower the
    temperature of its coffee. See Marc Galanter, An Oil
    Strike in Hell: Contemporary Legends About the Civil
    Justice System, 40 ARIZ. L. REV. 717, 732 (1998);
    Greenlee, supra, at 719–22.

    (3) The jury awarded $2.7 million in punitive damages
    because it believed the extreme temperature of the
    coffee was unreasonably dangerous and that
    McDonald’s had callously disregarded the danger
    even after hundreds of injuries. The $2.7 million figure

    was based on the approximate revenues from just two
    days of McDonald’s coffee sales. Shari Seidman
    Diamond, Truth, Justice, and the Jury, 26 HARV. J.L. &
    PUB. POL’Y 143, 146–47 (2003).

The Court found the reference prejudicial, both because the case was irrelevant and intended to show plaintiffs' as greedy and undeserving.  Also helped that the defense lawyer misrepresented the nature of the case and the damages.

Interesting that this seems to be the first time the issue has come up.  By the by, the Court of Appeals so not wrong in it. 

Simplified, War is Peace

Utah is considering a major revision of the Rules of Civil Procedure.  The Committee on the Rules of Civil Procedure refers to the proposed changes as "simplified rules of discovery", at least when talking to the Supreme Court about the proposals.  The proposals require a flow chart to be described, which the Committee kindly includes in the comments to the proposed rules.  But, it is hard to take someone seriously as proposing a simplification when the new (unlike the old) rules require a flow chart to make sense.  I guess I am stuck in the my litigation habits.

So, the first in an intermittent set of comments.  The changes to Rule 8 -- new complaints will need to include facts and legal theory explaining the claims to relief.  But the same standard applies for determining whether a claims has been stated.  Twombly is rejected as an inappropriate "heightened pleading" standard.  (I guess the Committee does not believe with the federal Courts of Appeal or Supreme Court which have said Twombly does not impose a heightened pleading standard.)  Alright, the same old Conley standard applies -- so what does the new requirement require?  What kinds of facts have to be included and what sort of theory?  After all, if the complaint does not have to be plausible (Twombly rejected) will any set of facts do the trick?  What is the point, in other words, of the change in language, aside from encouraging motion practice and providing a new group of cases for the courts of appeal?

Or consider the change in Rule 1 which makes all the changes apply to all cases filed after adoption or pending when adopted.  The rules of discovery change in the middle of the case, unless someone prevails on the court that imposing the new rules would be unjust or not be feasible.  Well, more motions and more delays as the motions get played out.  

Next time, a look at the basis for the changes.  Empirical evidence that isn't. 

 

True Grit

The oon-agin off-again search for books to read aloud bore some fruit yesterday.  On a recent trip, I picked up a copy of True Grit (yes, that one).  The beginning of the book is perfect for reading aloud.  The movie, both versions, had good dialogue, and enough of it overlapped that it seemed to me likely that the source was the book and not screenwriting -- which reminds me I need to read one -- so the couple of dollars would likely get something worth reading.  (The other book I picked up as awful, or the first few pages which was all that I read.)  I started reading last night (goes with sports TV pretty well).  After the first page, I decided that it would serve very nicely for reading aloud.

It is harder than it should be to get recommendations for books to read aloud.  The last recommendation from King's English was a flop.  Did not read well, and wasn't even all that as a book to read silently.  I think it was called Lovers or some such.  Went no further than 10 pages before I set it on the recycle shelf.  But, can't all be on the same wavelength.  I read Smart Swarm based on a very positive review -- it was dull and thin.  Same review suggested Honeybee Democracy which I am finding much more interesting.  Maybe it is just the better illustrations.  Speaking of which, the illustration to the bird book over on the list are superb. 

Some of the things that make a book good to read aloud -- Sentences that are readable aloud.  Lots and lots of good books are pretty bad when read aloud, because the sentences are not structured for anyone to listen to them (rather than read them).  Voices that come across without having to do voices, although nothing wrong with doing voices.  Bearable chunks -- sections that read aloud in half and hour or 45 minutes.  Gets too tiring after that.  Should not take long to get through this book. 

Davey the Fat Boy

Today is the anniversary of the birth of David Hume.  Hume is the best philosopher to write in English I think, and the brightest light of the 18th century (for Europe and North America). Locke and Hobbes are competing candidates.  I can't think of anyone since who is in the same league.  Plenty of very good people, Smith and Mill and Russell and so on. 

Symposia all over the world in honor of the 300 anniversary, except, oddly, Edinburgh and London.  While his birthplace has a commemoration, there is nothing going in the great cities where he worked.  A shame. 

Heretofore indictable

In State v. Hernandez, the Utah Supreme Court held that Class A misdemeanors, i.e., those with at least 6 month sentences, required a preliminary hearing.  As one would think, the prosecutorial community was not happy about the decision, and it is likely to have a financial impact.  For those not in the criminal law world, what is interesting about the decision is that it is one place the Court has taken the originalism announced some years ago seriously, actually made a decision based on the considerations it has said are the determinative considerations.  Set aside the advisability of originalism, it is a good thing I think for the Court to adhere to the standards it has set. 

The issue was the import of article I section 13 (yes, in Utah they are lower case) which provides that "Offenses heretofore required to be prosecute by indictment, shall be prosecuted by information after examination and commitment  by a magistrate, unless the examination be waived by the accused with the consent of the State, or by indictment, with or without such examination and commitment."  Is a misdemeanor punishable by six moths or more in jail under the section or not?  Court does what it has said it should do, namely look first at the original meaning of the provision, i.e., when adopted.  (Utah also has a fairly strong plain meaning approach to interpretation as well, so it is really what was the plain meaning then, if it can be found.)  The real fight between the State and SL Defenders office was what was intended by the phrase "offenses heretofore required to be prosecuted by indictment."  The State said that meant the Fifth Amendment of the Constitution, because the State of Utah was not prior to adoption and so the State did not prosecute anything "heretofore".  (No really, that is the essence of the argument.)  The SLD says that the phrase refers to Territorial law, and under Territorial law, a misdemeanor with 6 month sentence or longer required an indictment.  The rest just falls out. 

There is one other aspect to note -- it may be that the paucity of decisions actually using originalism of some sort is due to the reluctance of lawyers to make the arguments.  The record of the Constitutional convention is pretty meager.  Still, a good piece of work.